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

[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

[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

[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/

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: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.....

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: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: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.