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..."

Comments

Does this count as prior art?

[Raul654]

When a patent is under examination, others can submit examples of prior art. However, if they do and the patent is subsequently granted, the patent cannot be challenged in court on the basis of that prior art. That's why nobody does it -- they assume the examiners are idiots and prefer to take their shot in court instead. So - does this website count the same way? If so, it might not be such a great idea...

Re:Does this count as prior art?

[theoddball]

If the article is accurate, then no, this is not about examination.

The point of this initiative is to get information about innovations that exist in the wild and document it ("publish" it for statutory purposes) -- and make it easy for examiners to locate it if they want to.

This is about creating prior art that will serve as a bar under 35 USC 102(a). Examiners may find it, or they may not, but if nothing else, the publication will be sitting there for someone to assert in litigation / reexamination -- and quite possibly able to invalidate a bad patent.

Re:Does this count as prior art?

[kenshin357]

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.

Re:Does this count as prior art?

[Elektroschock]

There is only one efficient initiative and it is legislative reforms.

I would recommend to donate to the FFII.

Why does it have be just Linux?

[actionbastard]

Why can't this be a defender of all FOSS? To be just a defender of just FOSS OS limits its ability to represent anyone who wishes to create free software.

Re:Why does it have be just Linux?

[Anonymous Coward]

The same reason a single hospital cannot cure everyone, limited resources.

Sounds Doubtful

[zach297]

This sounds to good to be true. I could be of base on this but is it possible that these Linux "Defenders" may be trying to influence open-source software to their own benefit.

I could be mistaken here

[Aussenseiter]

But isn't the goal of patent trolling to win settlements from suing large, established corporations? Why would they go after the open source community, which by its nature tends to not be swimming in green papery things?

Re:I could be mistaken here

[Miseph]

Because this isn't intended to fight that form of patent trolling. This is intended to combat the type of patent trolling where large established companies file frivolous patent infringement lawsuits against small rivals in order to stifle competition and ensure profitability.

Re:I could be mistaken here

[GMonkeyLouie]

So I guess it's a way of saying that you're not confident you could pay to win a legal battle against a large established company who goes patent trolling?

Nice. Now being inventive is effectively taxed by the presence of bigger fish. Way to go, patent law.

Re:I could be mistaken here

[MaskedSlacker]

Um, welcome to decades ago? This shit isn't exactly new.

Permalink

[kabloom]

Please use the permenant link to the article http://legalpad.blogs.fortune.cnn.com/2008/12/08/a-no-fly-zone-to-protect-linux-from-patent-trolls/ not the link to the front page of the blog.

Re:Yeah but

[Tubal-Cain]

What is a Bad Patent anyway?

A patent that should not have been issued in the first place.

For example, patents are supposed to be for unique ideas. Prior art (someone else built something similar first) proves that the idea isn't so unique. But the patent might be granted anyways, for some reason.

BountyQuest Redux?

[jambarama]

If bountyquest couldn't get enough high quality prior art submissions by offering 10k, what makes IBM think they'll get better submissions without offering anything? Bountyquest's failure to bust the 1-click patent was quite telling of its patent-busting power. Salon.com's postmortem explained "BountyQuest tried to overcome the inability to build momentum [from a few big patent busts] by cold-calling patent lawyers and trying to sell them on the idea of running a contest for one of their cases [b]ut few have proved willing to bite." "There just didn't appear to be a market for its service." O'Reilly (one of the sponsors of the project) said in his postmortem of the project, "the patent mess is a thorny thicket that doesn't lend itself well to penetration by amateurs."

Apart from paying less to hunters and charging less to clients, how is IBM addressing these problems?

Bad parents?

[Z80xxc!]

Somehow I read that as "FOSS Community Can Combat Bat Parents". I was really excited, too. Oh well... been a bad past few days I guess.

Rule #1 : vendors lending legal support

[NZheretic]

As I stated over two years ago

1) Any patent lawsuit against a user of a software component used by major vendors will automatically result in those vendors lending legal support to reduce the chance that their own customers will also end up being sued.
2) Any patent lawsuit costs the suing party at least several hundred thousand dollars.
3) Any patent put before the courts is at very great risk of being destroyed by prior art.
4) Any payout awarded from a single end user has to be in proportion to value of the patented technology. The value of a single instance will could only be measured in hundreds of dollars, not coming close to covering the costs of the lawsuit to the plaintiff.
5) Patent lawsuits take six years to over a decade to work it's way though appeals.
6) Developers will release new software using a method that circumvents the patent in question within two months. This will be quickly adopted and by the time the first patent case is resolved there will be no further customers for the patent holder to sue.
7) The outrage generated in taking out a case against any open source will result in Groklaw [groklaw.net] and other groups putting the suing party and their lawyers under the closest scrutiny. You will not believe the level of bad publicity, let alone the the amount of prior art, dirty business practices, and legal suspect practices and even violation of statutes that will be uncovered.

Lastly to quote Pulp Fiction, and then "we are going to get medieval on your ass."

Any IP case against users of open source puts the attacker at a far greater risk.

What now? Let me tell you what now. IBM will call a coupla hard, case-hittin' lawyers, who'll go to work on the trolls here with a combination of prior art and counter suits.

Re:Yeah but

[Anonymous Coward]

> I would rather think it would be something like trying to patent a FOSS name like "Linux" as a "trademark" and not a patent.

Errrr ... the name "Linux" is a trademark. The trademark belongs to an individual called Linux Torvalds.

http://www.linuxmark.org/

If you were to fork the codebase, change it without going through kernel.org , and you then decided to distribute it, then according to copyright law you can only do so with permissions given to you by the copyright holders.

The copyright holders have set out their terms for granting such permission in a license document called GPL v2. The terms for what you were trying to do include a condition such that when you redistribute it you must offer the source code to anyone who asks you for it.

Trademark law says that you may not call your product "Linux" without Linus' permission. You may call it something else entirely and distribute it without Linus' permission, but if you want to call it Linux then you must have Linus' permission.

Re:open patents solutions.

[Anonymous Coward]

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.

IBM: the Linux Knight

[reporter]

As others have noted, companies have only a finite amount of money, so they must be judicious in funding efforts to defend the open-source community from patent trolls. Doubtless, the most valuable open-source application is Linux. It is an operating system and is the heart of a computer. Linux is the #1 application on which most programmers develop open-source programs. Typically, open-source work is done first on Linux and, only later, is migrated to Windows.

So, Linux deserves most of the resources for defending against patent trolls.

Here, again, we see the steady hand of IBM. It has been the central company in bringing Linux into the mainstream.

Before IBM announced its decision to deploy Linux on IBM servers, Linux was just a niche application used by brilliant scientists and engineers. In 2000, IBM changed the computing landscape by officially supporting Linux and deploying it across its entire range of servers. If IBM backed Linux, then the business community would try it. IBM was willing to sign contracts guaranteeing the reliability of Linux.

Linux is now the only Unix-ish operating system in many financial and engineering firms.

IP.com ?

[mmu_man]

I thought it would be about Internet Protocol or something else really useful. Bloody domain squatters!

Bad start

[Anonymous Coward]

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Maybe that wasn't the best place for open discussion on a topic designed to fight proprietary strangeholds.

The irony of IBM being involved.

[geekmux]

Is it just me, or does anyone else find it rather ironic that IBM, holder of the how-to-split-your-dinner-bill patent, is co-sponsoring a project to protect us from bad patents?

Hey Pot, the Kettle called while you were out. He left a message mumbling something about WTF...

Re:IBM: the Linux Knight

[orasio]

Linux is not an operating system.
GNU is an operating system, and Linux is its most used kernel.
Most development targets GNU, specifically glibc and stuff.
Without Linux, we would have other kernels, and porting would not even be necessary in some cases.
Without GNU, everything would have to be rewritten, at least, for BSD.