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FOSS Community Can Combat Bad Patents

Posted by kdawson on from the layers-of-barbed-wire dept.

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..."

5 of 58 comments (clear)

  1. Does this count as prior art? by Raul654 · · Score: 5, Interesting

    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...

    --


    To make laws that man cannot, and will not obey, serves to bring all law into contempt.
    --E.C. Stanton
    1. Re:Does this count as prior art? by theoddball · · Score: 5, Insightful

      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.

    2. Re:Does this count as prior art? by kenshin357 · · Score: 5, Informative

      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.

  2. Re:I could be mistaken here by Miseph · · Score: 5, Insightful

    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.

    --
    Try not to take me more seriously than I take myself.
  3. Re:open patents solutions. by Anonymous Coward · · Score: 5, Informative

    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.