Tandberg Attempts To Patent Open Source Code

An anonymous reader writes "As if the current situation with software patents wasn't bad enough, it appears a new phenomenon is emerging: companies are watching the commit logs of open source projects for ideas to patent. In this case, Tandberg filed a patent that was step-by-step identical to an algorithm developed by the x264 project — a mere two months after the original commit. The particular algorithm is a useful performance optimization in a wide variety of video encoders, including Theora."

Comments

First to Invent

[dgatwood]

The open source project should file their own patent. Because patents in the U.S. are on a first-to-invent basis, and because they can clearly demonstrate having invented it first, their patent will effectively invalidate the other patent. Then sue the other company for violating the patent, win, and use this to fund many decades of x264 development.

Re:First to Invent

[Anonymous Coward]

Sounds like a great idea. That will be $10,000 (about the bare minimum to file a patent and prosecute it through issuance).

Re:First to Invent

[PseudonymousBraveguy]

TThen sue the other company for violating the patent, win,

This sounds good in theory, but I've come to the conclusion that it's not neccessary that only because you *shold* win you actually *do* win. If you are unlucky, the process will go like: File for a patent, sue, get your own patent invalidated, get sued by company, and go bankrupt.

The most important step is therefor: Get a good lawyer first before trying anything else. I don't know if the EFF or similar foundations would sponsor a lawsuit, or if you'd find enough money by asking for donations, but without any backing the whole process sounds risky.

If that whole legal thing is not your favorite cup of tea, you could give all evidence to PUBPAT or a similar organisation and let them fight the patent. They have more experience dealing with this stuff.

Re:First to Invent

[Compulawyer]

Good idea. Unfortunately, the article says the code was released in 2008. In the US, you have one year after publication to file a patent application. After that year runs, no one can get a patent on whatever was disclosed.

Re:First to Invent

[Anonymous Coward]

The authors should sue Tandberg for IP theft under the DMCA. I suspect they'd have a good case, since filing a patent is a claim of ownership. Since Tandberg could not possibly have ignored the prior art, they are thus making a fradulent claim of ownership. They could also file a complaint for abuse of judicial process. But they need to sue Tandberg's pants off, since Patent Trolls such as those operate only in the expectation that they will not be sued. They are targeting open source projects because they believe those projects to be too poor to have good legal representation.

Re:First to Invent

[postbigbang]

Tandberg, a unit of Cisco, tries according TFA, to patent someone else's open source code; that someone else is the complainer in the link.

Should he be unhappy? Yes. Is this person trying to patent open source code per se? No. Instead, it's this person's code. Should he sue? Probably. Should Tandberg be laughed off the planet? Certainly. Is the filing one year late? No, not by Tandberg's math. Does the prior art count? It would seem so. And the patent application ought to be denied for that reason-- prior art.

Re:First to Invent

[Anonymous Coward]

If we could ensure that the patent would stay in the public domain I'd contribute $1K.

Re:First to Invent

[wierd_w]

In an environment where everyone is "looking for _their_ share", especially in modern america (if I had a nickel for every time I heard some slob demand "his" bailout when the fed bailed out the bank and loan sector, I'd be as rich as bill gates by now.), you end up with a situation where instead of just shaking hands and working together for a common future, you have all these players trying to screw each other and everyone else with exclusivity contracts, patents, copyrights, trademarks, and all that filth.

If it is even remotely valuable, there is an impetus to patent it, so you can hoard it like troll, then demand payment for its use.

For these people/this mindset, the idea of an open commons is an anathema; Cooperation is a sign of weakness in their eyes, and "giving away" something so obviously useful is something that only suckers do. They are used to "Dog eat dog" dealings, so the idea of "We dont mind if you fork our code, as long as you comply with the GPL" is uncomfortably alien to them. They operate on the model of exclusivity, and freedom is the exact opposite of that.

Naturally, if they can simply steal what you are making, and transform it into an exclusive (such as a patent), they WILL. They are more comfortable with exclusives that they own (legitimately or not, it doesn't matter) than they are with shared commodities that they do not. Why do you think there is such a push away from an open internet and toward a tiered one where everyone pays and charges tolls to route traffic by these people? Exclusivity. "Pay me or else."

For what it's worth, I agree with you-- Not everything should be patented, not everything should be lorded over by some troll with a sense of entitlement, and not everything should be divvied up and spoiled for profit. Sadly, as the saying goes, "Money talks, and bullshit walks". It would seem that the people stealing FOSS innovations like this feel the GPL is "bullshit", as evidenced by their actions. (Personally, I think the idea of the thing scares them. If FOSS groups started amassing patent portfolios, they would cry foul with every regulator you could think of.)

Re:First to Invent

[masmullin]

you need patent and copyright reform in the US.

Hell, you need to fucking cut down ALL your laws and get back to your constitution.

Re:First to Invent

[wierd_w]

If it were within my power, I would nuke the DMCA from orbit and reinstitute the original copyright and patent rules from the first US congress. (the ones that have a 20 year max term, and require physical inventions for patents)

I agree. My country's insanity with intellectual property needs to be sharply corrected. (however, doing so would nuke our economy from orbit. Corporate greed has destroyed our industrial infrastructure, and now "IP" is the only major world export we make.)

Re:First to Invent

[Ghiora]

The open source person should file a complaint regarding theft of IP with the FBI and the state general attorney (if he lives in the US). There is nothing companies like less then dealing with government lawyers.

Re:First to Invent

[knarf]

The most important step is therefor: Get a good lawyer

And thus the leeches feed again, and thus the cycle continues...

The aim of the game should be to get the lawyers out of the software development process. I see why you give this advise to an individual but it does not help the community unless that lawyer is good enough to pull down the whole software patent house.

Re:First to Invent

[Elijah Lynn]

Sounds like a great idea. That will be $10,000 (about the bare minimum to file a patent and prosecute it through issuance).

Something that is much easier and much cheaper for open source projects/idea to do is to submit a Defensive Publication, I talked with Tom Tyson of the Open Invention Network (http://www.openinventionnetwork.com/) a while ago and he explained the beauty of Defensive Publications. Basically the patent offices scour defensive publications prior to issuing a patent and if they find anything then the patent gets rejected. Therefore making it unable to patent by anyone else. These are easy to write up and their lawyers review them and submit them. I will be submitting many of my idea this way so nobody can claim patents on them, it is free. The website is http://www.defensivepublications.org/

Previous cases of similar

[ciaran_o_riordan]

There was also a study (2004?) which showed that getting patents makes you more likely to be the target of patent litigation, and there's a guy in FFII who published a computer science paper only to find that someone else patented an extension of his work a few years later.

The links and descriptions are at the below link, but it's down briefly for maintenance:
http://en.swpat.org/wiki/Publishing_information_is_made_dangerous

Re:Previous cases of similar

[pacinpm]

[...]and there's a guy in FFII who published a computer science paper only to find that someone else patented an extension of his work a few years later.

It's completely legal. He added some "value" so he can patent it. That's how patent system works. There is no prior art defence here.

Serious Accusation - Got Proof?

[Compulawyer]

If you are alleging that Tandberg copied the idea from the x264 project, that is a very serious allegation. Title 35 of the US Code, Section 102(g) prohibits anyone from getting a patent on something that he (or she) did not themselves invent. It would also violate Rule 56 of the Rules of Practice of the USPTO which requires those involved with the preparation and prosecution of a patent application to disclose to the USPTO any reason known why a patent should not issue. Failure to do so is called "inequitable conduct" and is a basis for finding the patent permanently unenforceable. In some cases it can also be a federal crime.

The US is not a first-to-file country but a first-to-invent country. That means that it is possible for an inventor to get a patent even thought they were not the first one to file an application at the USPTO but were the first to invent and were diligent in efforts to obtain a patent. Copying of this type is serious indeed. Theoretically, conduct of this type could also be a copyright infringement.

I for one would like to see a *lot* more proof before reading about allegations like this. The mere fact that one event happened after another is far from sufficient. These are *very* serious accusations.

Re:Serious Accusation - Got Proof?

[Rogerborg]

You know how you ghouls are always "Consult a lawyer before doing anything!!!!ELEVEN!!!" ?

If you read the patent claim and compare it to the published assembly, it's identical.

Oh, you don't speak assembly? Then consult a coder before spouting off your Class A Federal Alpha Constitutional wankspeak.

Re:Serious Accusation - Got Proof?

[Kjella]

How much further can you get without getting a lawyer, filing a lawsuit and start subpoenaing evidence? It's exactly the same algorithm, and if you don't want to spend $100k on a patent litigation case than naming and shaming is as close as you'll get. If they pull a defamation suit, then you can bring in the big guns yourself.

Re:Serious Accusation - Got Proof?

[igomaniac]

You are exactly right, this is a serious accusation and he should have contacted Tandberg before making claims like this. And if he had done so he would have found out that the code that the patent was based on was checked in to the Tandberg repository more than half a year before the code in x264 was checked in. Tandberg is preparing an official statement about this as we speak. Making serious accusations like this without first contacting Tandberg is irresponsible and unprofessional.

Re:Serious Accusation - Got Proof?

[Compulawyer]

What you linked to seems to me to be an example of someone inventing something that was already invented. That is *much* different from copying another's invention and claiming it as your own.

Re:Serious Accusation - Got Proof?

[Compulawyer]

I speak assembly and also speak patent claims. All I said was that you ("you" in the generic sense - not necessarily targeted at the individual who posted the parent comments) cannot imply wrongdoing from the evidence presented so far. It is completely insufficient.

What is better is to proceed down the path you have identified. First, compare the claims and the specification to the previously published code. Next, I would want to see proof that the named inventors (or those working with the inventors) had access to the code. THEN you are beginning to put together a case.

It is possible for two people to invent the same thing around the same time - especially in this field where people are working with or building on published standards. The USPTO has a special proceeding - called an interference - that is all about determining which of two or more inventors was the first one to invent something and is thus entitled to a patent.

All I am saying here is that you should have a complete set of facts before making accusations like this.

Re:i love patents

[LordAndrewSama]

Step 1) Patent a process by which members of an organization transfer a circular container amongst themselves, incrementing the capital value within the container after each transfer.
Step 2) Sue church for profiting from your patents for the last thousand years.
Step 3) Profit
Step 4) Damnation.

Of course, there's always the slim slim hope that this will show the ridiculousness of the patent system and it will be overhauled.

Re:If you can't invent it...

[gabrieltss]

Sure why not. I've seen MANY H1B workers (from India) that have done this sort of thing. We have sent several packing home because of it. They would go out, take code from an open source project and rip out the copyright then put their name to it and try to commit it to our SVN. Fortunately, because we have been burned by this in the past we instituted a "review before commit is allowed" process for ANY "outsource", "H1B", etc.. worker. They can't commit until we have reviewed. We actually take snippets of the code they want to commit and do searches to see if it came from an OSS project. You have to watch people these days.....

Fund OSS patent warchest.

[miffo.swe]

Even if i dont like it, i do think the only viable solution in the current climate is if the open source community gets its own warchest of patents to use in negotiations.

A fund where you could input your inventions that patented them and then offer them to anyone using a GPL license for their code. If a corporate entity wants in, fine, just cross license and use them for all they care as long as they dont use their patents against GPL licensed code.

Thanks a lot, America

[Dunbal]

You guys have really fucked everyone up with this "Intellectual Property" concept you invented and marketed to the rest of the world.

Now everyone is arguing with everyone else because they somehow believe the delusion that they are the only fucking people in the world to ever have thought of something. And guess who is making a ton of money? The lawyers, of course.

If you have the brains to market your idea (or negotiate with someone who can) then you deserve the profits you'll make. If you just want to be paid because you thought of something, go to hell.

There's a big difference between having a flash of inspiration in the shower, and actually bringing a product to market. There's this notion that patents reward creative people - as if creative people were in short supply. Everyone is more or less creative. Those who get the reward, however, are the ones willing to make the effort to develop their ideas.

Re:Thanks a lot, America

[king neckbeard]

'Intellectual property' is not an American concept. England is probably the most to blame, but they were going from arbitrary monopolies granted by the king to moderately logical monopolies that somewhat made sense given the primitive state of economics and psychology at the time. The problem is that we haven't progressed, and that we've had escalation occur, often through racheting mechanisms aimed at harmonization.

Re:Thanks a lot, America

[Dunbal]

I'll concede that point, although today's laws have deviated and perverted so much what was intended that "IP" today bears very little resemblance to what was "protected" 200 or more years ago.

I remember going to museums as a kid and being told that I wasn't allowed to take FLASH pictures because, of course, the repeated flash of thousands of tourists' cameras every day would eventually degrade the pigments in the paintings. Now you are told, with flashless digital cameras because the museum just doesn't want you to, and they'll feed you some completely false copyright or IP garbage as an excuse. I believe the copyright on a Rembrandt expired a long time ago.

Re:Thanks a lot, America

[Kjella]

Those who get the reward, however, are the ones willing to make the effort to develop their ideas.

No, it's those that are best at ripping off creative people by putting it in their own product and kill them on margins and market power. You put down long hours actually doing product development, only to find yourself overrun by cheap clones that have done nothing but pick your product apart and copy it. I remember that happened to one company around here, it was a good idea, they actually had product on the market for one season produced locally and sold well, very far from "a flash of inspiration in the shower".

Next season a bigger company had taken their design, changed it just enough to not be a direct copy and fired it off to some low-cost country and flooded the market. Could they have won a lawsuit? Maybe, but when you're a failing startup due to lack of sales that's then even winning is losing because you can't take the short term cost and with appeals even just for the sake of appeals it can take forever. It's just that patent law is woefully ineffective at actually protecting real innovators and serve large companies with patent lawyers on staff and the deep pockets to kill startups that can't or won't play ball. But it's not like everything would be fine without patents either.

Public domain?

[Amanitin]

You can't patent anything that's in the public domain already. I'd say this move is based on the negligence of application referees. Rightly so.

Re:Public domain?

[Steeltoe]

No, but you can patent any extention of something in public domain. In most cases, you can just reword the patent a little here, and include some differentiation there, and whoopie, suddenly it's an innovative piece of patent, ready to slay all other ideas that even resemble it!

You can't patent something already publicaly disclosed, however, it's still possible to create a minefield of patents, who someone sooner or later, is bound to step on at least a dozen of them.

Re:Ok im asking again, where are those fools

[unity100]

actually to the contrary, in this case you have no possibility of competing. they have a larger capital to buy stuff, larger capital to sue you, larger capital to pre-patent everything conceivable ahead of you.

at this state, we are at the dawn of intellectual feudalism age. in such an age, there cant be any small companies or inventors. anyone would have to be subservient to whomever has the biggest capital.

the parallels in between the current situation, and the early middle ages in which feudalism has formed, are uncanny.

Re:Ok im asking again, where are those fools

[king neckbeard]

The problem is that big companies have patents too. They have the resources to get more patents than the small companies, and unless they are completely stagnated, it is giving them a stronger competitive advantage than without patents. Without some kind of patent system where acquisition of patents is somehow more difficult for large companies than startups, I don't think there's a way to not have a patent system generally tip the system in the hands of the big companies more than a system without patents. Non-practicing entities can avoid this trap, but that's usually not where the big money is at, and it does nothing to provide actual competition to the market.

The system is working fine

[Steeltoe]

For smaller companies, you're taking a huge risk developing anything, but for the big corporations, who bought these laws in the first place, this ensures less competition, less innovation and higher bar of entry to market. It's perfect, so for them the system works fine, and thus they won't be doing anything with it.

If the unfairness was aimed at huge corporations, the patent-system and copyright-laws would be gone within a few months or a year. I have no issue with the trademark-laws, and copyright might work out when we have something like GPL. However, the patent-system is such a big beast, it's continual existence is assured because of it, not in spite of it.

Re:Tandberg = Oracle

[thijsh]

Note to self: Tandberg (tm) not related to Oracle (tm)... They are part of the Cisco (tm) network imperium and although they deal in telepresence they are not supernatural in any way.

An actual case of theft

[Just Some Guy]

Take note, pro-RIAA patsies: if this story is true, then it's a case of actual IP theft. That is, Tandberg would actually have deprived the original authors of the use of their own work, in this situation by making it illegal for them to continue distributing their invention.

Re:i love patents

[SmallFurryCreature]

http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html If this didn't do it, NOTHING will. The only fix is a lead device encased in copper with an explosive powder.

Re:Excellent

[AmberBlackCat]

More companies should do the same, patent everything until the whole thing collapses into a gigantic innovation blackhole.

I think that's already happened. We already can't build anything in America without a lawsuit.