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EFF Asks Supreme Court to Protect FOSS Innovation
euice writes "The Electronic Frontier Foundation supports KSR International in a fight against obvious patents. They filed an amicus brief (PDF) yesterday, a short summary is on their news page (August, 23). FTA: 'The Electronic Frontier Foundation (EFF) has asked the United States Supreme Court to overturn a dangerous patent law ruling that could pose a serious threat to Free and Open Source Software projects. [...] In a recent decision, the Federal Circuit Court of Appeals affirmed its own 'suggestion test' as the main method for determining when a patent should be found obvious over knowledge in the public domain. Under this test, even the most obvious incremental advances and add-ons can be patented unless the Patent Office or a defendant in court produces a document that shows someone else suggested it prior to the patent being filed. [...]
In its amicus brief filed Tuesday, EFF shows how this 'suggestion test' has led to a massive surge in bogus patenting, especially in software. These bad patents then become weapons against legitimate innovators — especially those working on Free and Open Source Software projects.' For me, this sounds like a really good shot in the right direction."
There are many ideas out there about how to fix the patent system, this being one of the more interesting ones. I usually disagree with the EFF but in this case I support them.
Information wants a fueled airplane waiting at the hangar and no one gets hurt.
...to have major reform in the US Patent system. Not only does it seem outdated and slow, but it's increasingly becoming the focus in news where otherwise it might not have been covered.
Why oh why can't the US Government see this farse and act on it? Is Mr Gates tossing Mr Bush off or something?...
ilovegeorgebush
...since most of these shoddy patents get through because the patent examiner doesn't realize the applicant has just fancied up something obvious, another major improvement would be to require patent summaries to be easily readable. How to enforce? How about this: allow patents to be invalidated on the grounds of obfusctating terminology. To test this, a defendant could be allow to offer an alternative phrasing, and if the judge|jury finds that a) the alternative phrasing describes the same invention (i.e., the plaintiff can't think of something that would fall under one but not the other), and b) the alternative phrasing is "significantly easier" to understand, the patent is invalidated. That would have the added benefit of a kick of harsh reality to those who deceive themselves about their own inventiveness. "No dude, you just put a scroll wheel on the side. You didn't provide an 'integrated mind-user-machine interface', whatever that is."
Apology to Ubuntu forum.
I was once shown an invention by a brilliant engineer. It looked so simple and obvious that my first thought was, "WTF! Anyone could have done this!"
But no one did before him. He was the first. In hindsight, many of the best inventions look "obvious" - that's what makes them great.
For us musicians, how many times have you heard a song and thought (honestly now) "I could have done that!"
But we didn't. That's what makes those folks (more) creative and wealthy (need that incentive!).
What I'm getting at is I'm afraid that lot of inventions will be deemed "obvious" in hindsight when in fact it was quite original. Very few inventions come from a vacum - they're are almost always built on others' work. And if we remove the incentive of a patent and copyright to (hopefully) get rich, innovation and research will come to a halt.
There is no feasible plan to allow for the ownership of ideas. Patents are meant to protect innovators from encroachment of their property (idea/method) for a short period of time. Originally the founding fathers discussed a much shorter period than is currently in place in that there is a real stifling of creativity through exclusive patenting.
Human thought is a process, not a destination. To suggest that the myriad connections and interconnections of neurons can somehow be frozen in time (in a patent) is flawed at best. If Darwin is to be believed this is an ongoing process, not something that happens in fits and starts but in constant fluid motion. Observation of the universe supports this premise. By supporting intellectual property, we are dooming our children to not have the right to their own ideas and discoveries. Isn't it bad enough that they are born into slavery for our debts? If we take away the tools for their liberation (i.e. innovation) we are the worst progenitors of record.
Imagine a world where only the people that can afford to have ideas are allowed to. How many Mozarts will die unrecognized because they infringed (bridged) on an already owned concept? Is a patent necessarily a ground breaking concept? Does it undermine future uses of a previously public-domain concept? Hats off to the EFF for their consistent work on our behalf. I sent my cheque, did you?
if I claimed I was emperor just because some watery tart lobbed a scimitar at me they'd put me away!
How about this idea?
The idea behind patents, or so they say, is that every patent is supposed to be so unique that no one else who is "skilled in the art" would ever think of such a clever idea. In order to protect the brilliant guy who thought of this ground-breaking technique, we give him a 20 year monopoly on that idea.
Of course, unless there's a good chance that the guy really is 20 years ahead of his time, we shouldn't grant him the monopoly, because he'll be holding everyone back with his monopoly until it expires.
Right now, we're giving away too much. We give people patents for things that are too obvious, and we give them away for too long.
So, why not give a bit less, but still reward true innovation? How? Ensure that no one else files the same patent for five years, and only then issue the patent. The inventor still gets 15 years of monopoly, but now skilled experts in the same field have a chance to compete. If someone else thought of it, it wasn't original enough.
It also eliminates the "first to file" vs "first to invent" problem by a large margin: if two people skilled in the art were able to discover an patentable idea within a five year period, then no patent is granted. This is pretty much the statement of the uniqueness critera for patents in the first place.
It will also eliminate people from filing spurious patents: five years is a long time to wait for something that doesn't matter. Prior art and other challenges could still be filed, but at least duplicate patents won't get issued, and if they do, both patents get invalidated...
It's not perfect, but it would be a good start...
The issue here isn't what's right, but what patent law currently states. It's entirely possible the Supremes will uphold the appelate court.
Despite the protestations of various litigious losers, the court system, including the Supreme Court, generally prefers to interpret existing laws than make law themselves. The problem is that where the law is unclear or nonexistent, if behavior doesn't violate some constitutional principle the courts essentially say: "This is not explicitly prohibited, so it is allowed. If you want to prohibit it, seek a legislative change."
As Justice Oliver Wendell Holmes, Jr., stated: "This is a court of law, young man, not a court of justice."
TLR
A man no more knows his destiny than a tea leaf knows the history of the East India Company
on my opensource site, atomic-ptr-plus, and put a list of patent applications by other companies for that stuff. I have to add in another one by IBM for some stuff I worked on, with them no less. I'm working in stealth mode from now on.
Take a group of people "skilled in the art", pose the problem to solve, give them (say) two or three hours, and record their proposed solutions. If what they come up with is similar to what the patent is trying to describe, it's obvious. If they want suggestions, solicite them and don't rely on nobody having bothered to write down the obvious.
By the way, what is "skilled in the art", anyway? If we on slashdot find a lot of these patents silly, what would actual people with training in the specific fields of these patents be saying?
We should also fix the "20 year death grip" on these things. What about this?
Limit the amount of money that can be paid from one company to another for a patent to some fraction of the revenue stream related to that product from the company wanting to use the idea. Allow lump sum payments if the one using the patent prefers to negociate, but have the mandated available option of, say, 15% of the total revenue after taxes (not profit, revenue) being brought in by this product as an option. To prevent companies ganging up on one guy and getting over 100% of his revenue based on multiple patents, make it so that the cap is 50% of total revenue after taxes for the product to all parties who might sue, and they get appropriate fractions of that pie. Make this an "up-front only" option so that if the licensee doesn't want to do it, they can't enter negociations and then fall back on this if they go badly.
This way:
* Big businesses can do what they do now, since they won't want to give up large percentages of their gross revenue
* Smaller businesses can opt for this option since it would cost them less than a fight, and let them stay in business
* It forces businesses not to price too high no matter what, since the patents are not a complete and final barrior to entry for a market. Good for consumers.
* It discourages excessive litigation and collusion between companies to take out small players, since the financial rewards for doing so get less and less the more litigation is piled on - after four companies sue and get their revenue stream, everybody starts getting less of the pie as more people pile on. At some point, it no longer becomes profitible to sue the guy. If he can get buy on 50% of the gross sale price of his product, he can no longer be driven out of business by litigation. The logic being if he can do this, someone else had profit margins that are not good for the consumers and the industry. Of course, you can still make him keep paying legal costs to fight it out, but after four companies get to him he can just not contest anything and let the pieces of the pie get smaller. Then, ironically enough, we could make the companies who are already getting fed out of this pie head off any new patent challenges because they stand to lose financially. This makes the incentive stronger to have only patents that are actually worth something filed, because the potential muscle available to break them becomes greater.
* Patent holders still get money from licensing, although perhaps not as much as they would like (although if the little guy becomes big they are sitting pretty). It should decrease the incentive to file stupid patents because they won't keep people out of the market. Indeed, it will encourage small players to enter and stay small, which is where capitalism works best.
* Open source software without revenue streams can stop worrying about infringing on patents, since 15% of $0 is still $0.
This might be able to provide incentives to innovate while keeping the system functional.
Another idea - expiring patents. Have the patent holder pay a yearly fee to keep the patent in play, and have that fee increase each year. (I think someone suggested something similar for copyright actually - after 30 years, start having people pay more every year to continue to monopolize the rights to it.) That way, if someone isn't making enough money with a patent to support it, it doesn't become an anti-competitive tool and limit someone else being innovative.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
This is interesting since at this moment we have 4 stories in Slashdot about corporate IP issues.
/ 24/1325214/ 01432580 1237/ 1918246
http://hardware.slashdot.org/article.pl?sid=06/08
http://apple.slashdot.org/article.pl?sid=06/08/24
http://yro.slashdot.org/article.pl?sid=06/08/24/0
http://games.slashdot.org/article.pl?sid=06/08/23
Surely a company could spend more in R&D and less in lawyers if the patent system was reviewed.
No sig for the moment.
Patent law is just as big a mess as copyright law due to technology and commerce slamming into one another...
Watch EFF attorney Jason Schultz tear the roof off in the new documentary, ALTERNATIVE FREEDOM. Maybe you will learn something or be able to show your friends and then we can all make sure digital rights are always kept in mind...
Also features Dangermouse (of Gnarls Barkley), Lawrence Lessig, Richard Stallman...
Check it out:
http://alternativefreedom.org/
Unfortunately, we don't have to imagine. There exist only a finite number of distinct pieces of music. Accidental copying is already considered infringement in two U.S. appeals circuits. See Bright Tunes Music v. Harrisongs Music and Three Boys Music v. Michael Bolton, both of which can be found in Columbia Law Library's music copyright case list and both of which have been upheld on appeal. (And before you accuse me of not reading the whole opinion, please explain exactly which parts of the opinion invalidate my point.) So what can an independent musician do to protect himself?
Limit the amount of money that can be paid from one company to another for a patent to some fraction of the revenue stream related to that product from the company wanting to use the idea.
What if I design a new type of engine for a car that allows it to get 100 MPG? Do I get some fraction of the revenue from the sale of the entire car, or just the portion that could be considered the cost of the engine? What if I invent something that makes an reduces the size or weight of an existing device? The cost to the manufacturer is the same, but the cost to the consumer may go down (less shipping) so their overall revenue may go down because of my device. So do I have to pay them money? Finally, if it is tied to a revenue stream why not sell you 4 tires for $32,000 and you get the rest of the car (including the cool engine) for free? The car is free if you buy our Auto Care Package for 60 months at $500 a month! No revenue from the car, so no royalties. Hardly seems fair.
Open source software without revenue streams can stop worrying about infringing on patents, since 15% of $0 is still $0.
Imagine that we are competitors. I patent something really cool, and that is my main revenue stream. You want me to stop competing with your product, so you take my invention, give it away for free, (which doesn't affect your main revenue stream), and destroy my revenue stream causing my business to lose money, shut down and stop competing in your market. Does that seem fair? We complain about Microsoft doing things like this, but it's OK for OSS to do it? I don't think so.
Another idea - expiring patents. Have the patent holder pay a yearly fee to keep the patent in play, and have that fee increase each year.
So, if I invent something that will take many years to get into production, I should have to pay more money before I can profit from it? This is also unfair to smaller companies or individuals that don't have the resources of a corporation. $50k for year 20 of the patent is fine for IBM, but would make most individual broke. Think of RFID. It took a long time for manufacturing to catch up to the idea. The patent has already expired, but what if it hadn't?
Reading code is like reading the dictionary - you have to read half of it before you can go back and understand it.
...is to not issue then in the first place. As I discusssed previously the "suggestion" test, promulgated by the Court of Appeals for the Federal Circuit and its predecessor, the Court if Customs and Patent Appeals, has greatly increased the burden on patent examiners in making and being upheld on obviousness rejections. As the amicus brief points out the Supreme Court made a fundamental ruling on what obviousness means back in 1966 in the Graham case. The CAFC, essentially, grafted on the "suggestion" test as their interpretation of this.
One factor in supporting this test was the presence of Judge Giles S. Rich who was a co-drafter of the major 1952 reform of the US patent laws, which, among many other changes, introduced the statutory legal requirement of non-obviousness, codifying a previous long line of court-made case law. Rich was a driver of the suggestion test, and, clearly, had a big influence on the court in its promulgation.
The effect of this requirment on the examination process is twofold. First, it sets an absolute standard for patentablilty; If you, theoretically, had available the most relevant prior art in the universe, the higher standard increases the chance that a particular patent claim will be judged non-obvious (i. e. allowable). Secondly, and following from the first effect, is the reality that one can't actually consider that one has found, in any practical real life sense, every piece of relevant prior art. So, if the examiner searches and starts finding relevant prior art, but still hasn't found enough to reject each claim, at what point does one stop searching?
The answer is heavily dictated by the examiner's production requirment. In the art areas having the most time assigned to them this works out to about 40 hours for the presecution of the entire application, and this is for a GS-12 examiner; for a Primary Examiner (the normal top of the career ladder) this is derated by a factor of 1.35. On top of this, applications are filed, and are maintained with more claims than in the past, and each claim must be explicitly treated. This results in a rats-nest of claims with different sets of limitations, often in various permutations. It is often the case where the examiner has good art on the broadest, independent claims, but then the question of how to reject the express limitations in various dependent claims arises. With the suggestion test, an examiner must go into each of the references and show exactly where in each is the "suggestion"; In the old days you could just toss this off, but now you have to find the words that "suggest" this.
The result is often a war of attrition with the applicant holding the cards. Thus, claims get allowed that you just know are, in your heart of hearts, crap, but which you just can't support, or track down and discuss dozens of additional references that might or might not exist; spending too much time results in either lower production and the risk of being fired, or taking time from other applications, shortchanging their examination.
If the SCOTUS removes this "suggestion" test and restores the standard back to the way it was practiced decades ago with patents issued with narrower claims, if even issued at all. On the other hand, if it is upheld, or, perish the thought, even enhanced, then only Congressional action can change this, and this is very unlikely.
Nope, sorry, just the 12" dick.
I've made a million, lost it, and made another. As far as the other things .... no. Too busy. I guess I have no life, but I like striving for the milllion - which isn't worth much these days - it's all paper.
Actually, I'm a pretty sad sack. all I have to live for is the money and the recognition that follows. I drink too much, work too much, and I don't spend enough time with my familiy. I guess, I'm a loser - got a million - but still a loser. My "friends" have more money than I do - I've seen their books - so, that's what I'm comparing myself to.
Here I am spending more and more time on /. - I guess I'm learning where my passion is, eh?
Good speakers but unsuccesful fighters for the cause.
http://wiki.ffii.org/IstTamaiEn
http://threeseas.net/abstraction_physics.html
but rather it is an application of a human characteristic, which we all have as a natural right and duty to use, to prove we are human.
"What if I design a new type of engine for a car that allows it to get 100 MPG? Do I get some fraction of the revenue from the sale of the entire car, or just the portion that could be considered the cost of the engine?"
I would say the entire car, or products marketed as any sort of package or incentive with the car. Obviously those fine points would have to be designed with care by lawyers who know how they themselves would try and get around it.
"The car is free if you buy our Auto Care Package for 60 months at $500 a month! No revenue from the car, so no royalties. Hardly seems fair."
Oh, agreed. There would need to be provisions to prevent that sort of thing, and no doubt lawyers would have something new to argue about for a while.
"Imagine that we are competitors. I patent something really cool, and that is my main revenue stream. You want me to stop competing with your product, so you take my invention, give it away for free, (which doesn't affect your main revenue stream), and destroy my revenue stream causing my business to lose money, shut down and stop competing in your market. Does that seem fair? We complain about Microsoft doing things like this, but it's OK for OSS to do it? I don't think so."
Some might argue that was Sun's whole reason for buying and open sourcing OpenOffice. In general the effect you describe can be unfortunate, I grant you. Software is a special case, because if you give away code and not just binaries (which in the case of software should be a requirement) then the product doesn't disappear. I think OpenOffice did more good for more people than it did harm to Microsoft, so I am in favor of it. Also, giving inventions in the physical world away for free should not be easy or inexpensive to do, in general. Material goods always have a fixed cost that must be paid, and that's quite a drain. That software does not have these problems is good evidence for why different types of thinking are needed there.
Remember, the original purpose of this entire system is to benefit the public. Freely available software can live on indefinitely and has virtually zero duplication cost, so it gives back indefinitely to the public. Microsoft, on the other hand, does not normally release source code to the world and could in theory kill a product by letting it age and allowing no one to maintain it, or resume charging an arm and a leg for it to provide it again. I would say those two situations are materially different.
"So, if I invent something that will take many years to get into production, I should have to pay more money before I can profit from it? This is also unfair to smaller companies or individuals that don't have the resources of a corporation. $50k for year 20 of the patent is fine for IBM, but would make most individual broke."
Yes, you should. If you wish to control an idea, you should pay for the privilege. Controlling ideas is normally to the benefit of the individual rather than society in general, which is why patents exist as an idea in the first place. Give people enough incentive to create, but in the end it should benefit society as a whole.
"Think of RFID. It took a long time for manufacturing to catch up to the idea. The patent has already expired, but what if it hadn't?"
If it hadn't, they probably would have waited another few years.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
"impermissible ex post facto analyais"
I would argue that a panel not knowing any details of the patent application, presented only with a problem description and instructed to suggest ways to solve it, is not an analysis with knowledge of the proposed solution but a clean look at the problem by "people skilled in the art."
People often don't write down obvious applications. Particularly in software, where the theoretical application of some technique is almost literally limitless. You could have thousands upon thousands of pages listing applications for a particular GUI structure, because it is general enough to apply to a plethora of problems. Claiming and monopolizing a specific one devalues the use of the technique by robbing it of the general power that makes it interesting in the first place, and is a serious disservice to the general community. If we're constantly worrying about stepping on patents that cover the solution any programmer would arrive at the instant they started trying to solve a problem, we're simply going to fall far behind the rest of the world economically when it comes to software development and usage. Many of the best and brightest won't tolerate such an environment, and will move to work where they CAN work without such fetters on their creativity.
We need a standard of obviousness that is biased against granting monopolies on ideas willy-nilly, not towards it. Getting a monopoly should be a hard thing to do, because it is always to the benefit of the individual and not the community. The eventual reward to the community has to outweigh any temporary harm done by the monopolizing of the idea, and I would argue that is most definitely not true in the case of software patents.
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
The funniest thing about this example is that patents have already been granted and long-since expired for a bunch of those ideas: One of Richard Feynman's anecdotes in Surely You're Joking, Mr. Feynman describes how, after the Manhattan Project was done, some suits came around and asked him if he could think of any other applications for atomic energy. He basically rattled off a few iterations of "For all X where X is something that uses energy, 'An atomic-powered X'".
They wrote it all down and left, and that was the last he heard of it until, some time later, he learned that he'd been granted a bunch of patents on the "atomic-powered ship", "atomic-powered airplane", "atomic-powered truck", etc. (I forget what the actual examples were, but it was something like that -- not sure if they were all vehicles, if he included spacecraft, or if he mentioned electricity generation.)
David Gould
main(i){putchar(340056100>>(i-1)*5&31|!!(i<6)<< 6)&&main(++i);}