Understanding (and Avoiding) Software Patents?

An anonymous reader asks: "I'd like to write some Free backup software, but this area is mined with patents. I downloaded one and tried to understand it, but the 'claims' section (arguably the most important part) is made up of utterly incomprehensible patentese, and I can't afford to hire a patent attorney to help me understand it. Are there any free or cheap ways to learn enough about patents to understand them, so I can figure out exactly what is patented and therefore avoid it?" "How different does my software have to be in order to be non-infringing? The patent I tried to understand is Dantz's 5,150,473. Many, including Slashdot readers, have said what this patent covers, but from reading the patent itself, I would never have guessed. Also, there are lots of other patents to understand and avoid, so I'm looking for general information on how I can unravel it all into language I can understand."

Comments

understanding doesn't help.

[gl4ss]

you can't know if there has been some patents applied that haven't been published yet.

it's impossible for you to learn of all the patents that you might have to deal with.

the solution? just write the fsckin software, if someone complains then take it out.

Re:understanding doesn't help.

[ottothecow]

Parent is right.

A lone person simply cannot handle this task so you are better off just writing it and then if anybody comes after you (and you are actually infringing...not just being chased away), you either fold or find another solution such as letting the EFF or somebody use your situation as a poster child for patent reform.

Re:understanding doesn't help.

[Anonymous Coward]

A lawyer who would probably not want to be identified with the large patent-holder (and lawsuit target) for which he works recommended that programmers *not* read patents. The implication was that "ignorance of the law" mitigated damages.

Why not "read and avoid?" The lawyer didn't say, but I'd guess that it's hopeless. I was once named as a "co-inventor" and yet couldn't recognize the invention in the patent write-up which came back from the lawyers.

Re:understanding doesn't help.

[SagSaw]

you can't know if there has been some patents applied that haven't been published yet.

Actually, I think a good improvement for the patent system would go like this:

1. Every patent application is kept secret for a certain period of time (the same time for every patent in a particular field).

2. At the end of that period, the patent is either issued or rejected.

3. If someone else invents the same thing within the secrecy period, it is evidance that the subject of the patent application is obvious to somebody skilled in the art.

The downside of this, of course, is that if you attempt to sell your invention or incorporate it in a product prior to the expiration of the secrecy period, somebody else could copy it and invalidate your patent.

Re:understanding doesn't help.

[tverbeek]

A lawyer... recommended that programmers *not* read patents. The implication was that "ignorance of the law" mitigated damages.

It isn't so much "ignorance of the law" that provides some protection, but the ability to demonstrate that you were ignorant of the patented invention, because if they can show that you read the patent, that would imply that you ripped off the idea from it.

But if you haven't ever looked at it, you can make your alleged infringement look accidental, which might (in theory) even strike down the patent, by showing that it was obvious to someone familiar with the state of the craft.

Re: understanding doesn't help.

[boy_asunder]

It's not exactly awareness of the contents that will increase your damages. What increases your damages (by trebling them) is "willful infringement" which means you know of a patent and you know you're infringing but you keep on doing it.

Of course the easiest way to avoid willfully infringing any patents is to not know of any in the first place. But this will fall apart the first time you get a cease and desist letter.

The best way to know you aren't going to get nicked for crazy damages if you are found to infringe is to get an opinion from a patent lawyer that you aren't infringing. This doesn't mean you won't be found to be doing so at trial, but it does mean are you pretty much insured against treble damages. Unfortunately, this costs a crapload of money in attorney fees.

Nobody's going to sue you

[Neil Blender]

If you aren't making money.

Re:Nobody's going to sue you

[miu]

They might sue you if they believe that you are preventing *them* from making money though.

Re:Nobody's going to sue you

[Crayon Kid]

The thing is that patents don't suck[...] Any other system would simply make inventors bear the cost of research and then a producer could swoop in for the profit.

I've heard this argument before, but it doesn't sit well with me. How can someone come and just "swoop in for the profit"? What do you think software development is? It's not like taking someone else's photo collection and just using it.

Even if I got access (legally!) to the complete source code for any successful commercial software product out there, I couldn't just cash in on it. I'd still have some investing of my own to do. I'd have to pay programmers to make a viable product out of it, I'd have to handle distribution and support. Even so, it would be just a clone. If I wanted to get the edge on it I'd have to invest some creativity and implement some additional features at the very least. Not to mention preventing the product from becoming obsolete, which could mean anything from adding new features periodically to catching up with other technologies (either hardware or software).

Add copyright to the equation and enforce it, and it means I cannot use the code verbatim anymore, even if I know all the great ideas and have the previous code layed out for me. I have to get programmers to reimplement it.

So "cashing in" on somebody's else's work is not so easy as it seems, not in software world. Copyright IMO is the best compromise between allowing freedom of inovation and protection of rights. Patents take this to a whole new level of complication, with emphasis not on "protect the original author" but on "award someone a monopoly on (often) arbitrary basis".

Re:Nobody's going to sue you

[miu]

I was talking more specifically about patents on physical inventions, but I can imagine software constructs that would qualify as an actual invention. No amount of copyright will protect a physical or software device once it released to a public audience, and that is the point at which a "producer" (eg MS, IBM) could swoop in and take the market from the inventor.

Don't go looking for trouble

[rossifer]

Perversely, it's not a very good idea to actually do a patent search before lunging into your neat new idea. Should you actually find evidence that your invention was close to patented technology and that fact comes out in court, you will be accused of violating the patent deliberately.

If you never looked, on the other hand, you just didn't know about it and may have violated someone's patent as a result.

Further, you'll only be subject to serious trouble on the patent front if you're wildly successful (i.e. harming the patent holder's market share). In that case, there ought to be enough interested parties with money to actually handle the challenge.

I am not a lawyer, but I've talked to a few on this exact subject with the exact same question.

Regards,
Ross

Treble damages

[danpat]

In addition to there simply being too much to read, in the US, if it can be shown that you knowingly infringed a patent, the amount of damages you can be liable for is trebled (x3).

You're much safer in your ignorance.

ObLinus quote

[ccady]

Do what Linus does: don't read patents.

"Technical people are better off not looking at patents. If you don't know what they cover and where they are, you won't be knowingly infringing on them. If somebody sues you, you change the algorithm or you just hire a hit-man to whack the stupid git."

Translation of Patents into English

[seanellis]

The way I have attacked this in the past is to go through it sentence by sentence and translate it back into English, keeping a glossary of things which seem to make sense in context.

From your example: "The archive format includes the transfer of data to an archive media member, which archive media member can alternatively be addressable or sequential memory and can be recordable in either a rewriteable or right [sic] once manner."

Glossary: Archive media member - a tape or disk. (This is backed up by the fact that these may be sequential or "addressable" (i.e. random access)).

So, in other words, "The archives are stored on tapes or disks, which may be rewritable or write-once."

This is, of course, a tedious and laborious process. (Just imagine, however, being a patent lawyer and having to actually write this stuff for a living.)

Note well that, if the CIID passes, us software developers in Europe are going to have to learn to do this much more often. Here's an obligatory link to the FFII for the benefit of anyone who's been on Mars for the last 6 months.

OK, here's an idea. How about an open directory of patent translations?

Once you've translated a patent into English, you would upload it to the directory for others to use. They would be available under something like a creative commons license, with a feedback/rating system, standard disclaimers that original legalese has priority over the translation (of course), and that translations are supplied for convenience only.

The web interface could optionally display the original and the translation side-by-side, aligned by paragraphs, so you can easily cross-check. There should be a simple way to post/suggest corrections.

NOTE: This posting consitutes prior art on this concept. You may not patent it!

ASIDE: The method described for translation is basically the same as that described by Richard Feynman for dealing with obtuse english. Here's a quote:

"There was a sociologist who had written a paper for us all to read - something he had written ahead of time. I started to read the damn thing, and my eyes were coming out: I couldn't make head nor tail or it! I figured it was because I hadn't read any of the books on that list. I had this uneasy feeling of "I'm not adequate," until I finally said to myself, "I'm gonna stop, and read one sentence slowly, so I can figure out what the hell it means.

So I stopped - at random - and read the next sentence very carefully. I can't remember it precisely, but it was very close to this: "The invidivual member of the social community often received his information via visual, symbolic channels." I went back and forth over it, and translated. You know what it means? "People Read."

(From "Is Electricity Fire?" in "Surely You're Joking, Mr. Feynman".)

If you are concerned about software patents...

[mellon]

...work to get rid of them. Seriously. There is absolutely nothing you can do to protect yourself from software patents, other than this.

Fish/Google

[CyberVenom]

Dude, that's like, totally bogus! Try using the Fish on it... Maybe its in like, Polish or something...

Seriously, it would be interesting to see the technology behind Google Translate or AltaVista Babelfish applied not only to proper languages but also to specialized jargon and dialects: Legalase, Technobabble, maybe even Diner.

Hmmm, imagine using the fish to translate "From Legalese to Engrish" *cringes*

Just to add my two cents...

[tchuladdiass]

There have been a few cases that source code is speach, i.e., in relation to publishing encryption code. If any of those cases held up, then it may also apply to patented algorithms. Therefore if you only publish source code then it would be up to the person compiling/running the code to check for patent infringements. Of course it would be nice if the system actually worked like this...

Re:Just to add my two cents...

[boy_asunder]

I've actually written a law review comment on these laws. While one case did hold that code is speech, a few others haven't; it depends on the jurisdiction. And the case that would be the most likely precedent to patent law would probably be the 2600 case, since it involved the DMCA, and that didn't accept the free speech rationale as enough of a defense. Frankly, and annoyingly, it's really hard to get judges to recognize code as speech, since to most of them it's just a bunch of meaningless symbols; at best they tend to analogize it to a recipe.

However, if you were only publishing source code, this might not matter at all because it's not clear that you can really sue someone under patent law for publishing source code. Patent claims generally have to be for a device, a method, or a composition of matter. What you emphatically cannot patent is a pure algorithm.

So if you look at them, they'll claim some sort of software system, or the method it performs, or some sort of computer media that has instructions written on it. Source code published online (or especially published on paper) isn't really anything more than an expression of an algorithm, so it's pretty much outside the realm of traditional software patent claims.

Re:Just to add my two cents...

[boy_asunder]

Right, you mention a computer, so that what are you patenting is the computer, not the pure algorith itself. And of course, the difference is pretty much nonexistenct for practical purposes, but since we were working with a contrived example of just publishing source code, I think that was one of the few times that difference mattered.

Too much scope...

[Spoing]

It's not possible to know where and how you might be in violation of an unknown patent. The best you can do is dodge the obvious patent violations or as others have said don't go looking for trouble.

Besides, if you spend all your time looking for a patent you mighg be violating, you'll not get any coding done.

Simple

[Anonymous Coward]

Just clone something at least 20 years old. Bring it up to modern standards by adding translucent drop shadows and a few gratuitous memory leaks. This is the method used by all major software publishers and it works without fail.

The Anatomy of a Trivial Patent

[DrMorris]

There is an article about "The Anatomy of a Trivial Patent" written by RMS. It may be a nice introduction to the topic if you want to read more complex patent texts.

For a temp solution

[boogy nightmare]

Or for a more temporary solution.... move to Europe

Re:You got some bad legal advice

[Znork]

It isnt ignorance of the law, it's ignorance of the patent. And it isnt a defense, it's avoiding possible willful infringement damages.

> IAAL

Yeah, well, when even lawyers have trouble understanding the ins and outs of patent law, maybe it's time to do something serious about it, eh?