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FOSS Community Can Combat Bad Patents
An anonymous reader lets us know about a new initiative designed to help shield the open source software community from threats posed by patent trolls. The initiative, called Linux Defenders (the website is slated to go live tomorrow, Dec. 9), is sponsored by a consortium of technology companies including IBM. "The most novel feature of the new program... will be its call to independent open source software developers all over the world to start submitting their new software inventions to Linux Defenders... so that the group's attorneys and engineers can, for no charge, help shape, structure, and document the invention in the form of a 'defensive publication.' Linux Defenders will then also see to it that the publication, duly attributing authorship of the invention to the developer who submitted it, is filed on the IP.com Web site, a database used by the US Patent and Trademark Office and other patent examiners throughout the world when they are trying to determine whether a proposed patent is truly novel..."
Where are you getting these restrictions on prior art from?
There may be a rebuttable presumption of validity if you want to apply the same piece of prior art in the same way as it was used earlier on in the prosecution history, but there is nothing preventing you from using it court. Think about it: it would be fundamentally unfair to not allow someone to use something as evidence in court simply because it was brought up in an earlier ex parte proceeding.
As for the "nobody does it"--do you know the different in cost difference between a third party submission versus an infringement suit in court? We are talking thousands versus millions of dollars here.
There are certainly plenty of reasons why someone would prefer to take an issue to the courts, but sitting on a clear, obvious piece of prior art is not one of them. Of course, patent trolls are the exception to this rule.
In the United States, you are not required to register with the Copyright office to secure the rights to your work, although it can help. You hold the rights upon completing the work. You can distribute work to which you own copyright while attaching conditions to its reproduction. The theory behind many open source licenses is that if a company decides to use software distributed under such a license, it can be required to stop.
To assert patent rights in the United States, you must have a patent issued by the United States Patent and Trademark Office. The ONLY legal mechanism to prevent private parties with whom you have no other contractual obligation from making, using, and selling your invention without your authorization is to obtain patent from the USPTO.
The best you can do in the public domain is disseminate defensive publications; that is, you can provide prior art so that companies cannot patent your invention. But if you do not also get a patent on the invention, those same companies are still free to use your invention without attribution.
Corporations can have binding contracts with one another that allow them to cross-license patents. Unless someone in the "open patents solution" is willing to foot the bill to file for and prosecute patents, and then provide a limited license under which they may be made, used, and sold, this idea cannot get traction.