Ask Slashdot: Open Patent Licenses?

felipe13 writes "We are working on a new piece of code that will be protected under a GPL license, this is fine for the code itself, but what about our 'innovations'? Are there any 'Open Patent License' models similar to the GPL or Creative Commons? We have Google patenting the highlight of search occurrences, Facebook protecting the word 'Book,' and Apple registering body movements. This is becoming ridiculous to a point. Now the patent trolls are making a killing as well. Does the open source community has a good way to protect its innovations and inventions? There are some initiatives to buy patents and release them to the public or at least place them is a protected area, but where would my very small company register a new way to include titles in a private message? Where could Drupal patent the use of 'hooks' to let developers interact with the core of the application? (If they invented this, I am not really sure.) I don't want to wake up in 10 years and discover that X huge company patented my innovation and that now I actually have to pay them for it." There's OpenPatents.org, there's the Open Source Hardware and Design Alliance, there's CERN's newly-updated Open Hardware license, and there are domain-specific patent sharing organizations like the Open Patent Alliance; what else is out there?

Comments

Patent Reform

[Ethanol-fueled]

Here's a license: If somebody tries to sue you, punch them in their fucking face.

Harrumph.

Patent it

[sakdoctor]

GPL is based on copyright which is automatic.
Patents are not automatic, so you need to patent your invention, and worry about (free) licensing afterwards.
If you wanted something more BSD-like, publish without patenting.

Re:Patent it

[AvitarX]

I'm surprised to not see gpl3 liste d.

It did a few things, but patents was the one that made the most sense.

(I think the clause to prevent what MS did with selling is the worse, and likely un-enforcable).

I'm ambivelant on the tivoisation clause, but the sueing for use of a patent in software revoking a license is very good.

Re:Patent it

[poetmatt]

I don't get why open innovation network wasn't mentioned? That's pretty much defensive patent licensing for free, and clearly defined.

Re:Patent it

[h4rr4r]

It is run by an ex-hedge fun manager, does not sound like someone I would trust with my "Intellectual Property". Heck, I don't think I would trust one of those with the change in my sofa.

Re:Patent it

[Ruke]

Copyrights are expensive, need to be filed, and don't really do much until you sue someone for violating your patent. An "Open" patent doesn't make much sense; who owns the protected innovation? Everyone? Who can be sued for using it? No one? People who use it in non-GPL'd code? Who is going to initiate the lawsuit?

Prior art, not prior patent, is what kills a later, competing patent. However, both cases are handled exactly the same way: through expensive lawyers. In this case, even when you're in the right, the big corporation will still win. They can afford better lawyers to defend their patents for longer than you can afford to sue them.

Re:Patent it

[poetmatt]

if you think having an ex hedge fund manager own the OIN has something to do with why you wouldn't trust it, I'd like to remind you of a: the list of licensees (which is huge - google and redhat for two significant names -microsoft and apple quite clearly absent) and B: If you had a fucking clue you'd have signed up with OIN last year to prevent SCO/MS/Attachmate threats in the first place.

From groklaw:

Here's how it works. The patents of OIN members and licensees are licensed to each other royalty-free in perpetuity. Even on a sale, the license remains in force for all pre-existing members/licensees. If you are a member/licensee of OIN prior to the closing on the Novell deal, then, you are covered. The proposed closing date is January 23rd, so you still have time to join OIN and get the benefit of the license to those patents. Then, if Microsoft shows up at your door, you can say, "Thanks, but no thanks. I already have a license." So here's what it all adds up to, by my reading: if ever you were thinking of joining the Open Invention Network, this is the sensible time to do it, as long as you get it done before this sale closes and that door shuts with respect to the Novell patents.

So yeah, keep saying that a hedge fund manager is somehow untrustworthy, and I'll stick with being in the clear to give the finger to MS and SCO while they spread all the FUD they want.

Re:Patent it

[rtfa-troll]

First not only am I not your lawyer, I'm not a lawyer at all, so this isn't legal advice; if you have questions like the above you probably want to go talk to the FSF or SFLC who are quite likely to be willing to arrange cheap legal advice.

What sakdoctor said is probably true that we need people in the free software community who actively patent. Having patented it however, the licensing not be like the GPL. You also don't want to get involved in people like the Open Patent Alliance. They seem to be a standard industry "patent pool" and as such their members will be looking for money from WIMAX producers, which of course basically rules out FOSS where it is impossible to control the number of copies out there. The most important thing to understand is that where in copyrights, copying is relatively cheaply and efficiently proven and so people respect them by default, the standard approach to patents is to ignore them.

In licensing, basically a level of aggression is needed otherwise your patent won't achieve anything and won't be worth the money. Basically, you have to be willing to sue companies that are willing to get involved in suing open source companies. That includes any company which has ever owned a patent involved in suing open source companies. If you don't do this then people like Microsoft will just sell their patents on to patent trolls whilst keeping a license for themselves and making sure the trolls know which targets to prioritize in order to get their next fix of patents. Probably the best way to do that is to transfer the patents to a well funded and very aggressive non practicing entity together with an agreement that a) they can't sell the patents on except with a similar agreement and b) they will not sue companies which agree never to sue FOSS software companies or to sell on patents except with a similar agreement.

The one organisation that I know of which comes even close is the Open Invention Network but they have completely failed to sue Microsoft during their recent patent attacks and as such I would say they seem to be pretty ineffective.

Finally, there's a moral question here. Some people believe that if you don't believe in a law you shouldn't benefit from it and so you shouldn't sue over patents. I wouldn't want to get money from patent lawsuit, but I strongly have the opposite belief. As long as patents only cause pain for FOSS people, the corporates and the politicians they buy will continue to support them. The correct way to get rid of the patent system is to maximise the pain for companies like Microsoft who are abusing the system themselves.

Re:Patent it

[h4rr4r]

I was more making a joke. Joining it sounds good, but I still don't trust hedge fund managers.

Re:Patent it

[poetmatt]

well my apologies for missing it then :) I don't mind not trusting hedge fund managers, but it is important to look at what's going on here. Something that is almost explicitly anti (a bad thing - antifud in this case), should not be automatically assumed to be a bad thing as well.

Re:Patent it

[Anonymous Coward]

GPLv3 has a specific section on patents.
It basically says that if you contribute code that is patented you are either (a) granting free license to the patent (whether it is your patent or your license of the patent) for the software and its derivatives or (b) will not redistribute the code to anyone unless you know the recipient has the patent license in question.

Re:Patent it

[Anonymous Coward]

I don't mean to be rude but almost everyone in this thread is wrong. Patents are a business model for the government. Governments are moving toward first to apply for a patent, not first to invent. Prior art will be irrelevant. Publishing without patenting doesn't invalidate future patents when governments move to the business model that earns them the most money and this change is inevitable. First to apply also benefits large corporations that regularly patent, and not smaller corporations/organisations. The DPL is a patent license that's trying to be equivalent to the GPL.

Re:Patent it

[thePuck77]

Patents are for processes, trademarks are for logos, copyrights are for content. The first two cost money and are a laborious process, while copyright is free and happens automatically (though you should use some sort of dating system to prove first rights; people used to send themselves their manuscripts in the mail and leave it unopened to use the postmark for that very reason).

Document, document, document

[bennomatic]

The thing that kills patents is prior art. So if you're releasing something to the public domain, make sure to document every step of the way, everything that is potentially patentable. If you invented it first, then with proper documentation, nobody else can patent it...

...at least until the new "whoever files first" rules go into effect.

Re:Document, document, document

[LionMage]

IANAL, but my understanding is that even if/when the U.S. switches to a "first to file" system, prior art will always remain relevant... it just complicates things because you have to establish that the prior art exists before the filing of the patent, not before the "inventor" claims to have invented the innovation. I guess one could argue this standard would be easier to meet since the act of filing a patent typically comes well after the process of inventing something, except maybe in the case of so-called "submarine" patents.

That said, I'm really unhappy about the U.S. seriously considering moving away from the "first to invent" system. Yes, our system is more litigious, and therefore one can argue it's more costly, but also seems less fair if someone legitimately did invent something first but couldn't afford to beat the other guy to the patent office. I'm hoping someone kills the switchover before it goes into effect.

I have personal memories of documenting every little thing I did at a start-up company in engineering notebooks and composition books where the sheets were all bound by sewing and adhesives -- makes it easy to see if a page has been added or removed. Spiral bound notebooks are not good for documenting stuff you've done, and loose sheets of paper aren't really good either. Digital records are easy to forge. Old school is the best way to document your work should there be a patent challenge.

Re:Document, document, document

[presidenteloco]

It is also necessary that you can prove the date of documents related to the invention.

So I would suggest that the documents need to be public on the web (so they can be archived by the Internet Archive)
and/or run through a timestamp server to get a timestamped digital signature associated with each document.

Re:Document, document, document

[Anonymous Coward]

File the patents even if you don't want them. The first thing the patent office checks as prior art is other patent filings. Its easier to contest a patent if there is a prior patent filing. Though there is the risk you could lose your patents in a bankruptsy. Then they could be purchased and used.

Re:Document, document, document

[Patch86]

My understanding of "file first" (IANAL and all that jazz) is that if a "pre-filing inventor" comes forward, the "filed" patent still becomes invalid (as the pre-filing inventor counts as prior art). The only difference is that currently the pre-filing inventor would be awarded the patent instead (as he proves he invented it first). In a "file first" system, he doesn't get a patent- the patent is just struck off, never to be repeated.

If I've understood it right, that sounds like the better system as it thins out the numbers, rather than just transfers ownership.

Re:Document, document, document

[rtfa-troll]

That said, I'm really unhappy about the U.S. seriously considering moving away from the "first to invent" system. Yes, our system is more litigious, and therefore one can argue it's more costly, but also seems less fair if someone legitimately did invent something first but couldn't afford to beat the other guy to the patent office.

If he can't afford to file first, then he certainly can't afford to defend his patent. He should have published the idea. If he was planning to keep the idea secret instead, then I'm afraid to say that this is an example of the patent system actually working and achieving it's main aim; to encourage inventions to be published.

Re:Document, document, document

[Anonymous Coward]

That said, I'm really unhappy about the U.S. seriously considering moving away from the "first to invent" system. Yes, our system is more litigious, and therefore one can argue it's more costly, but also seems less fair if someone legitimately did invent something first but couldn't afford to beat the other guy to the patent office. I'm hoping someone kills the switchover before it goes into effect.

The thing is, as long as the patent is filed and published, why would we care which of the inventors gets it? Given that you have to invent it to file it, how will a "race to file" do less to promote the arts than a "race to invent"?

The larger question seems to be if anyone should, if the idea really was obvious enough to be independently discovered several times in a short time span. That sounds like a classic "the time was right" invention.

Re:Document, document, document

[Anonymous Coward]

Yeah, it'd be invalidated if the "pre-filing inventor" has established prior art. It's not enough to have just invented something, so the first to file system makes the confidental route a risky option to choose.

Re:Document, document, document

[bennomatic]

One method I've seen is for people to make copies of important documents, seal them and ship them via certified mail. It's not foolproof, but I've been told (no official citation) that it is defensible in court.

Re:Document, document, document

[bennomatic]

Ah, that does sound like it has some advantages. I hadn't understand the "struck off, never to be repeated" aspect of it.

Now if only something could be done to reduce the benefits to trolls who buy up discarded patents just to file suits, never producing new knowledge nor any products...

Re:Document, document, document

[RobertLTux]

the problem is most envelopes can be steamed open you would need to somehow prove that the envelope has not been tampered with.

I would suggest you use something like http://www.uline.com/BL_1552/Self-Seal-Flat-Tyvek-Envelopes (nearly impossible to open without destroying the seal) and sign the seal a couple times.

Re:Document, document, document

[Anonymous Coward]

It's even easier than that; you can send an unsealed, empty envelope to yourself to get it date-stamped, and then at a later date put a document in it and seal it.

Re:Document, document, document

[Anonymous Coward]

NO! NO! NO! NO! NO!

Documents that will be used to establish the development of a patent MUST be understood, signed, and DATED by a notary public (preferably) and the original inventor/s and filed away safely. Simply sending mail to yourself does NOT constitute a patent! Stop spreading disinformation please!

Re:Document, document, document

[swalve]

Or, patent it and don't sue anyone.

Prior art

[Anonymous Coward]

If you publish an innovation from which you do not intend to profit, and which you would not mind others replication or even would like others to replicate, simply do not file a patent for it. Should anyone ever attempt to do so, your work will qualify as prior art.

Re:Prior art

[kimvette]

If you publish an innovation from which you do not intend to profit, and which you would not mind others replication or even would like others to replicate, simply do not file a patent for it. Should anyone ever attempt to do so, your work will qualify as prior art.

  your work will^H^H^H^Hshould qualify as prior art

I fixed that for you. In this day and age where a patent clerk's "research" consists of searching for his rubber stamp to approve the app and grant the patent (usually on stuff a simple google query would show a googleplex worth of results for), you have to wait to duke it out in court and go broke defending yourself against a patent which should never have made it TO the application process, let alone be granted patent protection.

Re:Prior art

[hoppo]

IANAL, but I have been involved with my share of patent law, both in defending against patent infringement and in applying for patents. Your assertions suggest the only exposure you've had to the patent process comes from reading Slashdot headlines. There is no rubber stamp at the USPTO. An examiner spends months to years on a single application, researching prior art, questioning the inventor(s), and judging the novelty of the invention. Many times, an application will go through a rejection/revision cycle several (up to 3, I think) times before the examiner's objections are fully overcome. And even then, the application is usually rejected.

Patent litigation is also fairly rare (albeit expensive). Most defenses against patent infringement are centered around trying to invalidate the patent altogether. This means the patent holder is typically faced with losing his intellectual property rights altogether. It's uncanny how suffering real, irreparable damages if you lose a suit you bring up against someone else can shape your strategy.

Re:Prior art

[Anonymous Coward]

There are about 6000 patent examiners granting 150000 patents per year in the USPTO. That means that on average a patent examiner spends at most two weeks to examine a single patent, if we ignore rejected patent applications altogether. That two weeks is spread over several months or years, covers the work on all revisions of the patent, and includes many more tasks than a search for prior art.

In order to actually judge if the search results are prior art, the examiner has to read and understand the most likely patents and articles found... and all that in less than two weeks. At that rate you really do have to be an Einstein to do more than superficial rubber-stamp work.

Re:Prior art

[butlerm]

This means the patent holder is typically faced with losing his intellectual property rights altogether.

Unless the probability of independent invention of the same thing over the next twenty years or so is vanishingly small, you have no business being granted a government monopoly in the first place. It also means that whatever you "invented" wasn't much of an invention at all, just a minor and altogether obvious advance on existing practice.

The problem of course is that determining what is "obvious" by this standard or any other is virtually impossible, so we get endless perversions that everyone with a clue considers more than obvious but which get government granted extortion rights anyway.

open patent licenses

[cheeks5965]

contradiction in terms... circuits overwhelmed... head exploding

Re:open patent licenses

[tepples]

That's what they thought about "open copyright licenses" when the GNU General Public License first came around.

Innovations and inventions?

[Anonymous Coward]

Does the open source community has a good way to protect its innovations and inventions?

Innovations and inventions of FOSS? Perhaps when FOSS moves beyond reimplementing proprietary operating systems, applications and tools this will become a more important issue. Seriously, think about it, its pretty common to see FOSS projects primarily described as "A FOSS alternative to the popular and proprietary XXX application". I use FOSS every day and support various project monetarily but lets be honest. Innovative applies to FOSS about as well as it applies to MicroSoft user interface development. Clippy being a notable exception and definite MS "innovation".

Re:Innovations and inventions?

[countertrolling]

Maybe so, but that present system requires the reinvention of the wheel to avoid litigation, and from there will come 'real' innovation, This is most definitely an impediment towards progress. FOSS developers really have no choice at this point

Re:Innovations and inventions?

[rtfa-troll]

Innovations and inventions of FOSS?

The majority of recent innovations in software have originated in FOSS and then been copied into commercial software. For example, Microsoft's . Even re-implementations can be innovative in the way that they do those re-implementations and Linux certainly shows that.

Perhaps when FOSS moves beyond reimplementing proprietary operating systems, applications and tools this will become a more important issue.

There are 14 thousand packages available for my current system and although a large proportion of that are libraries, it compares with a few hundred in a plain system. I think we are beyond just implementing the base operating system.

Going a bit further, lets just look at a few random packages that happene to come to mind

• libktorrent2 - the bittorrent protocol was invented in FOSS
• bind - this is the server where the majority of the DNS system was invented before being copied by commercial entities
• ruby / java / perl - all open source innovations
• mono - well maybe there's some innovation in there :-)
• cvs / git - CVS was the revision control system to introduce
• X11 - it's old now, but it came straight out of a research project
• haskell / Camel - these are what Microsoft's new "F#" language is based on.

Overall, the problem may be the opposite. Too much of FOSS is someone's research project with a bunch of random innovations thrown in there; it's lucky we can choose the best of many packages.

I use FOSS every day and support various project monetarily but lets be honest. Innovative applies to FOSS about as well as it applies to MicroSoft user interface development. Clippy being a notable exception and definite MS "innovation".

It's so sad that this just sounds like the standard line from a Microsoft troll. More likely, however you've been taken in by these people. Anyway, good for you in putting your money into FOSS; if you have done that then you really have funded lots of innovation.

Re:Innovations and inventions?

[just_another_sean]

cvs / git - CVS was the revision control system to introduce

I tend to agree with your post over all and don't want to be pedantic but wasn't CVS to replace Bell Labs SCCS (Source Code Control System)? And didn't other source code revision control systems exist before SCSC?

Re:Innovations and inventions?

[rtfa-troll]

sorry my sentence got chopped off; CVS introduced multi file commits and tracking entire directories on top of RCS. RCS was based on the idea of SCCS but moved to delta storage.

Isn't the real answer to push for reform?

[Ice Tiger]

As maybe "innovations and inventions" in software if you're not a huge mega corp is incompatible with being in the the US anymore.

helps to understand

[Anonymous Coward]

I'd say that it first helps to understand the differences between copyright, trademarks, and patents. From the submitters question, I'm not sure they actually have a grasp of the distinctions between these three very different areas of IP.

"Files first" does not invalidate prior art.

[perpenso]

...at least until the new "whoever files first" rules go into effect.

I do not think that is the case. I believe that under both "files first" and "invents first" prior art can cause the patent application to fail. I think the individual hurt by the move to "files first" is the inventor trying to work in secret, trying to postpone filing for the patent in order to maximize the number of years on the market during patent protection and minimize the number of years under development during patent protection.

Re:"Files first" does not invalidate prior art.

[spikenerd]

I call BS. Yeah, I know that prior art isn't the problem they're trying to solve with this new first-to-file rule. I know they say these new rules won't prevent patents from being invalidated. And I'm sure that these rules will be applied precisely for the intended purpose--after all, surely no one would ever try to abuse the patent system for monetary gain without actually contributing to science or the useful arts. But IRL, they're calling it "first-to-file", and the only assurance we have that prior art will still be relevant are the assurances of people who are trying to push the new rule through. I smell disingenuity.

Re:"Files first" does not invalidate prior art.

[hoppo]

Well that... and the law. First-to-file vs. first-to-invent and the prior art obstacle to getting a patent awarded are two wholly different segments of patent law.

Re:"Files first" does not invalidate prior art.

[Anonymous Coward]

But IRL, they're calling it "first-to-file", and the only assurance we have that prior art will still be relevant are the assurances of people who are trying to push the new rule through. I smell disingenuity.

We also have only their assurances that the rule won't make it legal to cook and eat babies, but we tend not to assume it won't, because that would be silly.

Do you know of cases where patents with prior art have been granted and upheld due to the first-to-file rules in e.g. Europe?

Or are you saying that the "first-to-file" system the U.S. is considering is considerably different than what the term is normally understood as in the rest of the world?

Re:"Files first" does not invalidate prior art.

[Dachannien]

I smell disingenuity.

That's funny. Most people use their eyes, rather than their nose, to read pending legislation. You did read it before jumping to conclusions, didn't you?

Re:"Files first" does not invalidate prior art.

[Anonymous Coward]

No, he used the mat. You see, it has all these conclusions on it, and you jump...

Wonder if that's patented.

Re:"Files first" does not invalidate prior art.

[goodwine]

Under the current patent statute, 35 USC 102 a person can get a patent unless "the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent..."

Under the version recently passed by the House, a person can get a patent unless "the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention..."

So it's changed in two important ways. One is that the date that matters is the filing date, so that gives more time for prior art to block the patent. However the standard for prior art blocking the patent has gone up. Instead of being "know or used" it has to be printed, patented or "otherwise available to the public."

So, it cuts both ways as far as prior art goes. Just documenting it without disseminating it to the public won't block a patent under the proposed changes.

IP 101

[Haedrian]

IP 101 -

Copyright is automatic whenever you create some sort of work, be it art, software or whatever. Published or unpublished. It stops people copying your stuff and passing it off as their name. "Derived works" would include some sort of that work (copied code, your music or whatever) and is illegal unless its 'fair use'

Trademarks: A trademark is protecting a particular name to stop other people from naming their things similarly. For example, if I'm selling my "YouProduct" range, I don't want a competitor to sell "YouProduct2", because it might confuse my clients. Similarly I can't open a company called "Appell" which sells mp3 players called iiPods - even if they look totally different.

Patent: A patent needs to be obtained and protects an idea. If you protect an idea, NOBODY can make something which uses that idea. Software patents are respected in certain countries but others don't (like the EU).

To give an example:

I want to create a news aggregation website. I can't name it slashdotdot because of TRADEMARK. I can't look at slashdot's source code and copy most of it and use it for my own work because of COPYRIGHT. Now if /. copyrighted their moderation method algorithm, I can't use it in mine. REGARDLESS of whether I wrote the code independantly or whatever - this is due to PATENTS.

There.

Re:IP 101

[Haedrian]

Penultimate sentence should be "If /. patented*"

sorry.

Re:IP 101

[geminidomino]

Minor Nit:

I can't look at slashdot's source code and copy most of it and use it for my own work because of COPYRIGHT.

Isn't slashcode open source? Or did they stop doing that?

Yeah... it's called "prior art"

[AtlantaSteve]

Just release it. Once public, it become prior art and cannot be patented by someone else. After a period of time (~ one year), you can't patent it yourself anymore either.

You know, for a website that loves to pontificate about patent law every 10 minutes, Slashdot and its editors sure don't seem to know jack shit about the subject..."

(DISCLAIMER: If one of the various "patent reform" bills makes it through Congress and becomes law, and the U.S. moves from a "first to invent" system to a "first to file" system, then all this will probably change. But that's not the state of things right now.

Re:Yeah... it's called "prior art"

[h4rr4r]

First to file has no impact on prior ar., It only impacts in the case of two inventors who claim the same invention.

Re:Yeah... it's called "prior art"

[AtlantaSteve]

Eh, I'm posting on Slashdot... what do I know? :)

Re:Yeah... it's called "prior art"

[ZombieBraintrust]

Don't just release it. Write something up and get it published in dead tree form. You need to be able to show that your product on such and such a date implemented your invention in such and such a way. If no ones knows how your product works then first to file may screw you. Think of it as preparing evedence for an eventual court case. There are 'scholarly' journals that will print your article if you pay them.

Re:Yeah... it's called "prior art"

[radtea]

Just release it. Once public, it become prior art and cannot be patented by someone else.

Unfortunately this is not the reality. The reality is that once a bad patent is granted--which poor quality patent examination in the US seems to allow to happen with depressing frequency--it is difficult and expensive to invalidate it. There are moves afoot to allow for prior-art submissions by the public earlier in the process, but really, do you want to spend the rest of your life keeping an eye on every patent application that may have your innovations as prior art? The clowns who do this stuff professionally will bury you.

Re:Yeah... it's called "prior art"

[Ironchew]

Software patents are a complicated dance, optimized and perverted (from the original purpose of patents) to increase the barriers to entry for competing software developers. The notion that patents can be countered by prior art is flawed in the world of software for several reasons, not the least of which is a dedicated corporate legal team finding other existing patents to pin on you. The pressure to cross-license with a huge corporation reinforces this barrier, and few individuals have the time and money to squabble with corporations in court over a concept as nebulous as a patent on math. Software patents shoud be abolished; nothing less can fix the problems inherent in their design.

Re:Yeah... it's called "prior art"

[jedidiah]

...yes, because stuff "being out there" works so well now.

The weather is very nice on the Carribean islands

[presidenteloco]

where you might wish to consider basing your open-invention-based business.

Hard to do.

[Anonymous Coward]

"Does the open source community has a good way to protect its innovations " Hard to protect that which doesn't exist. Think I am wrong? Then list 5 open source innovations.

Re:Hard to do.

[felipe13]

There are many many of them, the difference is that they are not registered, big companies like hp will patent ever the way they fold a paper when the contents are important, open source companies don't. But take for instance bittorrent, this system is great and I remember a few years back when M$ 'invented' a peer-2-peer system to distribute their updates and where claiming it was their own invention, even when they where reminded of bittorrent. Same thing here, I don't know if /. does, but if it was a company like google, they would probably be getting patents on every single algorithms or the way they receive 'scoops' from the readers. There are many many many innovations that come from the open source community beginning with the distributed contribution model in which most applications are developed (there is an article here about how torvalds is responsible for this)

Re:Hard to do.

[rtfa-troll]

• The graphical web (invented in the open source Mosaic browser)
• Peer to peer accellerated downloading (bittorrent)
• The majority of things in the DNS system (bind)
• Various interesting and innovative schedulers (linux)
• PC plug and play hardware (Linux)
• Real effective internet package downloading with full dependency tracking (RPM & DPKG)

Theres five and one for free. I'm sure you will be able to point out some systems which had part of the functionality of these, however that is the nature of innovation and why patents are wrong. Everybody's innovation builds on someone else's work to some extent.

Poor Man's Patent

[Anonymous Coward]

An engineering teacher of mine once told me of the "Poor Man's Patent". It is pretty air-tight and really cheap.

As mentioned before, document heavily through the whole process, an periodically send your documentation to yourself through USPS. Because USPS is a government agency, the date stamp on the envelop is considered legit. All you have to do is know what is inside each envelope and DON'T OPEN them. If who came up with the idea first ever came into question, just make sure you present the envelope to an official that can verify that it was sealed.

This requires you to keep an eye on who is trying to patent what, but it is solid.

Re:Poor Man's Patent

[Anonymous Coward]

If, in fact, an engineering teacher told you that he was an idiot. Patents are supposed to be OPEN, not sealed in some envelope. If you want to protect your invention without a patent, publish it.

Re:Poor Man's Patent

[Anonymous Coward]

This is a variation on mailing a manuscript to oneself in order to establish copyright. It's not a good idea. If the intention is to establish prior art then it's better to publish the relevant materials. Besides, it'd only be useful under the "first to invent" system.

You'd be served by visiting a notary. They're not very expensive.

Hooks

[The boojum]

Where could Drupal patent the use of 'hooks' to let developers interact with the core of the application? (If they invented this, I am not really sure.)

No they did not. Hooks are ancient.

Re:Hooks

[felipe13]

thanks, see that is one example, it could be nice to have those things registered, not with the same intention as a patent, but it can even be a great way to learn stuff and make better software.

Publish?

[asvravi]

So why not just publish it, making it prior art? Or maybe what you want are Trade Secrets?

Huh?

[Anonymous Coward]

What "innovation". I didn't realize that copying Unix and other proprietary OSes and software was considered "innovating".

Great advice

[felipe13]

Thanks to everyone for the great input, what I am getting is that we can be fine with just publishing it and having some piece of mind that our innovations (if there are any) will be protected. presidenteloc: our business model will be based in Costa Rica I guess, which is where we are located. I don't think that we can talk about just one legislation, which is part of the problem here, the us may change the rules, but what about the rest of the world? UE I guess will not give much problems, but there should be a better way to protect stuff. kimvette: that was part of the question actually, where would a clerk like this look? Is there a pool of this innovations somewhere? The links provided here are great, but they don't really provide a solution for new innovations, they are working (as far as I was able to see) on current registered innovations in some countries (us mostly), that is actually part of the questions: Do I HAVE to register my inventions? can't I just do something like a GPL license, include it in my code and live goes on. bennomatic: I will start documenting everything, I will try to provide a platform or repository for this cases, and I hope that it becomes useful for others someday.

Re:Great advice

[pavon]

Do I HAVE to register my inventions?

Whether you do or not, the published work still counts as prior art. The main difference is when that prior art is applied. Registering your invention will make it more likely that the patent office will notice the prior art when someone else tries to patent the same idea and thus more likely for that patent to be denied. If you just publish in a public place (even a reputable journal), then the patent office probably won't see that prior art, will grant the patent, and you could be sued. Your published documentation could then be used as a prior art defense in court.

So it is a cost/risk tradeoff. You have to decide whether it is worthwhile to spend some money up front to decrease the risk of very expensive (but honestly unlikely) legal costs in the future.

Depends on What You Mean by "Protect"

[SwashbucklingCowboy]

If you mean keep something from being patented or least being well enforced later then yes, just publish your source code. It then becomes prior art.

Statutory Invention Registration

[pavon]

Alternately, if you wish your invention to be in the public domain, you can file for Statutory Invention Registration. This will cause the filing to be in the USPTO database and thus more likely to be found during a prior art search for future patent applications than if it was just published in a journal.

Re:Statutory Invention Registration

[Anonymous Coward]

Mod this informative. SIR's aren't examined or become enforceable, however they are valid publications for consideration as prior art. It's probably cheaper than filing and then abandoning, but you'd have to check on that.

Also, the software community should come up with a friendly searchable database or forum and allow archive.org to archive it. Allow users to post their ideas there. If you can post more detail about your implementation of an algorithm that's great. Of course, this would need to be advertised to IP professionals so that it doesn't get overlooked.

Re:Statutory Invention Registration

[Dachannien]

What the parent poster says is correct. Also, SIRs are cheaper than filing a regular patent application.

The pending patent reform bill would eliminate SIRs, however, probably in part because publication is automatic at 18 months. All published patent applications go into the searchable database that examiners use.

If you file a patent application (not a provisional, mind you), it will publish 18 months later as long as you satisfy various formal requirements at filing (payment of fees, properly executed declaration, and a few other things). There's no obligation to pursue the application to get an actual patent, and if you're not planning to get the patent, then with a little research you can probably handle the initial filing pro se, leaving the USPTO fees as the only expense.

Re:Statutory Invention Registration

[Anonymous Coward]

In theory, all that is necessary is to sufficiently describe the invention in the public domain. This means that the invention should be described in detail in a "published" document that can be identified with a publication date. Furthermore, in order to be effective this document should be published such that the USPTO will find the information when performing a search for later attempts to patent the same invention. Thus, the USPTO Statutory Invention Registration is a good choice as it should enter directly into the patent search database.

In theory, a publication with complete disclosure of the invention should:
a) prevent others from patenting the invention later as there is published prior art; and
b) serve as a means of defense for you in the event that someone does get a patent after your publication date.

This strategy does not, however, prevent a competitor from patenting an IMPROVEMENT on your published idea. Thus, if you invent and publish A + B and a competitor later successfully patents A + B + C (i.e. convinces the patent office that C is a non-obvious improvement), and you have in the mean time also incorporated C, then you are now infringing the new patent AND you cannot negotiate with the competitor for violating your invention of A + B because you don't have a patent (with a patent you could then leverage your patent).

In practice, it is likely that for this to be effective you should also monitor patent applications and then submit the relevant publication as challenging prior art during the examination of a competitor patent. If not, then it is possible that your publication will not be found as prior art, a competitor granted a patent and then you are an infringer unless you can invalidate the patent, i.e. once a competitor gets a patent, the burden of proof is then on you.

It's not an ideal solution, but the combination of publishing in order to be found for search and monitoring competitor applications could be relatively effective and is probably less costly than actually patenting. Compared to a patent, you will save filing and examination costs. However, with an actual patent, you would then have the power: i.e. the burden on proof is not on you, rather on your competitors and you have a bargaining force, the patent.

Why Worry?

[Artagel]

Well, if you did something that is open source, it is released into the wild, right? That makes it prior art. So your defense is that their patent is invalid if it happens more than a year later. But under the current house bill (H.R. 1549) which is now in the Senate for approval, users who were making commercial use of the invention more than a year prior to the filing date of the patent, even in secret, are protected. Also, the status of prior public use or publication is stronger under the first-to-file system than the first-to-invent system. Even one day before the patent application's filing date (with the exception of disclosures prior to your publication by the patent applicant) defeats the patent. So things are looking up if you want freedom. Now, if you want to smite greedy companies for using your idea, that is a whole different kettle of fish.

Statutory Invention Registration

[pavon]

If you file for a Statutory Invention Registration (or file for a patent and drop it after 18 months), then your filing will be in the USPTO database and thus more likely to be found during a prior art search for future patent applications than if it was just published in a journal.

Hm... just use a regular patent?

[BlueScreenO'Life]

How about filing regular patents and refrain from enforcing them against others in the F/OSS community, just like Red Hat does?

Unfortunately that does require plenty of cash for litigation if a big corporation decides to challenge the patents anyway.

Patent it properly anyway. Use it to enforce GPL

[w0mprat]

Then use the patent(s) as leverage to go after companies that don't honour the GPL. For everyone else grant a blanket licence to use the patent provided they honour the open source licence properly.

Open Invention Network

[Anonymous Coward]

You can get your patent and transfer it to the Open Invention Network. Open Invention Network (http://www.openinventionnetwork.com/) creates a pool of patents that are licensed to anyone who promises not to sue anyone in the open source community. Basically if a company promises not to sue over the use of one of their patents, they can use all the patents in the Open Invention Network portfolio too.

Proving lack of copying

[tepples]

in copyrights, copying is relatively cheaply and efficiently proven and so people respect them by default

Is lack of copying also "relatively cheaply and efficiently proven"? Say I've written a song. How do I know whether I am the legitimate author or whether it's an unauthorized derivative work of something I had heard in grade school?

Re:Proving lack of copying

[rtfa-troll]

Is lack of copying also "relatively cheaply and efficiently proven"?

When sued by a corporation in the USA your only hope is a SLAPP lawsuit. Otherwise I guess it's going to cost.

Say I've written a song. How do I know whether I am the legitimate author or whether it's an unauthorized derivative work of something I had heard in grade school?

You know that because you know you didn't copy. This may or, more likely, may not help in court.

Open Patents

[Mark Shewmaker]

The idea behind the Open Patent License is for owners of patents (and non-patent IP that still ends up behaving like patents from a practical real-world extent--amazing how that actually happens) to be able to license them in a copyleft-type manner, ideally handling more than just the software patent situation.

The goal is for all players to be able to participate in a growing patent pool and have open and free access to this pool under copyleft-type conditions, whether they're small players or larger players.

Don't be thrown by the badly-worded license--I had it as a starting-point for discussion/work, getting ideas out there, and ended up having a few lawyers come out of the woodwork, offer to help, then realize it was a bigger project than they had expected. After a number of rounds of that I ended up putting the project on the back burner, as you can see. I need to get it more active again. Anyone who is interested in contributing in any sense, please contact me.

Also, I've since realized that a far, FAR, shorter license probably makes sense. A structure of something similar to Google's license from their CLA for instance, or Redhat's patent promise, made a bit more generic and made to cover patent-like IP, is probably a better idea, and I am planning to re-start the license wording along those lines.

I will happily accept help from anyone who is interested.

Re:Open Patents

[felipe13]

Hello Mark, great to see you here.

I did look into your project, but I was not very clear about how it works or if it was updated.

I will get in touch with you and see if we can cooperate.

Thanks.

Defensive Publications

[Anonymous Coward]

The USPTO has a free option to the standard patent application. This is called a defensive publication, which allows the inventor, in this case the OSS author, to publish the work within the USPTO's databases so that examiners will be able to reference these things when rejecting a patent. The examiners in the Patent office don't have the time to dig through all of the work done by the open source community, but if the OSS community is serious about protecting it's innovations, it can start submitting these defensive publications, which give them a more official grounding in the public domain.

Publish, Publish, Publish

[Anonymous Coward]

If you want to keep your innovations open "always be publishing." Blog about what you intend to build or are already building. Describe the invention in enough detail for someone "practiced in the art" to duplicate it. Describe its uses, but of course do not limit the uses to only what you can think of at the moment. Describe enhancements even if you do not intend to implement them. List your references for where you got your ideas. The more dots you connect, the more someone coming along has to be truly innovative to patent.

Lawyers

[Synerg1y]

IMHO, you need to talk to a lawyer (sometimes before you even start the project so you don't waste your time), I doubt a good one would charge you unless s/he had to file the patent themselves (lawyers file the majority of these) and if you find the right ones, they deal with it as a large part of their living (ex. defending a patent). What you may find is things get handled on a case to case basis with patents because of all the complex rules and regulations surrounding them.

GPLv3

[bill_mcgonigle]

Be sure to use the GPLv3 license if your primary goal is to perpetuate the openness of the patentable attributes of the work you release and its derivatives.

Don't release in the US

[kawabago]

Release your product everywhere but the US. That is the only way to avoid the Trolls. If enough people do that, maybe the situation will change.

if you publish before they file, you're clear

[Politimemes]

or even if you deliver a product containing the invention in question, without publishing a description of how it works. Publish or ship => prior art, unless they filed before you did that. If you really want it to be open, then publishing is the simplest path.

Size matters

[Anonymous Coward]

If you publicly disclose something that would make it prior art and thus not patentable if the patent office is aware of it during the application process. They're not always aware of it, so prior art being patented is not uncommon. It's happened to some stuff I put into public domain on SourceForge 3 years prior to the patent application. The patent holder in question is Oracle which acquired it through their Sun acquisition. You're perfectly welcome to take on Oracle here. You'll lose. It's an unlevel playing field tilted in favor of the patent holder, legitimate or otherwise. And Oracle's lawyers are much bigger than your lawyers.

Reform or move to another country!

[Anonymous Coward]

Reform patent laws, or move to another country, are the options I see... and the former one doesn't appear to be happening in my lifetime, which leaves only the latter... It makes no difference if a patent is invalid, it takes you way more money to prove it so than pay up usually, so you just have to pay up... no pay, no live in this country, simple as that.

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Trivial to describe in a printed publication ...

[perpenso]

Under the version recently passed by the House, a person can get a patent unless "the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention..."... Instead of being "know or used" it has to be printed, patented or "otherwise available to the public."

No problem, create a small ad that describes the invention. Place that ad in your local newspaper. The letter of the law cuts both ways.

fighting patent extortion

[Anonymous Coward]

why isn't there an insurance company that insures against ms style extortion? if it were to pitch a policy to me as an android
owner that MS can't come after me as a customer for android, I'd be happy to pay 15$ (MS protection fee) to protect myself from
MS protection/extortion. It seems to me that an android user is just as vulnerable to MS extortion as music users who download
from "free" music vendors. it seems to me that they could then afford defend any company in an 8 year osl style legal system abuse strategy by MS. All it takes is a very large pot of money. I've heard the argument that MS has a lot of lawyers and money but if enough users take them to local courts the economic costs should start to seriously hurt these crooks. I'd pay a fee for protection for any programming I do that could be attacked by these racketeers. I'd pay a fee to be able to use any GPL software and not have to worry about MS extortion. I'd pay a fee if someone would stand up to these crooks. the same principle applies to music IPR issues. I'd pay a fee to use dropbox or any other music-to-the-cloud mechanism without worrying about the recording companies legal system abuse. Why haven't the vendors of these services put together an insurer for that purpose? End users will pay a small yearly fee to avoid the Music industry legal extortion. Are the vendors of these services too stupid or too greedy to come together an create such an insurer?

Why hasn't there been a class action suite based on the 15$ per device damages we suffer for this extortion? Surely the Android industry can put together a "class" that has suffered damages from MS extortion (in various forms) selecting either from end users or vendors? If vendors are still paying fees for machines shipped without windows, that is also extortion. why can't we compensate for this extortion by legally bleeding them the way they go after small vendors? The legal conflict IS sensitive to cost.

Why isn't there an insurance company that insures people/businesses/corporations from legal extortion?