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.

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.

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.

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.