Patenting Open Source Software

dp619 writes "The tactic of patenting open source software to guard against patent trolls and the weaponization of corporate patent portfolios is gaining momentum in the FOSS community. Organizations including the Open Innovation Network, Google and Red Hat have built defensive patent portfolios (the latter two are defending their product lines). This approach has limitations. Penn State law professor Clark Asay writes in an Outercurve Foundation blog examining the trend, 'Patenting FOSS may help in some cases, but the nature of FOSS development itself may mean that patenting some collaboratively developed inventions is inherently more difficult, if not impossible, in many others. Consequently, strategies for mitigating patent risk that rely on FOSS communities patenting their technologies include inherent limitations. It's not entirely clear how best to reform patent law in order to better reconcile it with alternative models of innovation. But in the meantime, FOSS still presents certain advantages that, while dimmed by the prospect of patent suits, remain significant.'"

Comments

How to reform patent law?

[h4rr4r]

Reforming patent law would be simple, software should simply not be patentable. You can copyright it sure, but no patents.

Re:How to reform patent law?

[InPursuitOfTruth]

In addition to that, I think we should decrease the # of years to 5 for all but pharmaceuticals, the poster child of patents. For that industry, 15 years. You have to create a position that threatens the establishment if you want to gain momentum because only then will they be motivated to compromise to protect their interests.

Re:How to reform patent law?

[Anonymous Coward]

But if people can't patent and monetize logic(programming), what incentive is there to think? Without the incentive of money, there would be no software. Opensource doesn't really exist, it's a conspiracy against patents by Google. Once patents are gone, what is there to stop Google from creating a monopoly on ideas? Google will create all of these ideas and never share them with the public and society will fall into disarray as no one will be able to think because Google will horde all of the ideas.

Re:How to reform patent law?

[fustakrakich]

Reformation? Only through abolition.. Patenting software, for whatever reason, only validates the process

Re:How to reform patent law?

[alen]

when i was a kid drug patents were 18 years like all the others
that was changed in the 90's because there is a long time frame from patenting a new drug to actually selling a product. sometimes as much as 10 years.

Re:How to reform patent law?

[the eric conspiracy]

Yes, and that time frame is imposed by a government regulatory process known as FDA approval.

I'm fairly sympathetic to the idea of extending patents to account for the regulatory process. A lawyer once told me that a patent is:

A contract between an inventor and the government in which the inventor discloses the best known way to practice an invention so that it can be repeated by others in exchange for the right to prevent others from practicing that invention for a specified period of time.

So that specified time is right now 20 years. Well if the government also imposes a regulatory process that takes 15 years or some other variable but significant duration before sale can take place the patent contract becomes quite meaningless.

Re:How to reform patent law?

[bill_mcgonigle]

software should simply not be patentable. You can copyright it sure, but no patents

OK, now how do you get that through a corrupt Congress?

I feel like we need one of those checklists for why a random spam 'solution' won't work.

Re:How to reform patent law?

[davydagger]

but in the meantime.

I think it'd be great if we could get google, red hat, and any other companies to start a foundation, and a charity to help Free/Open Source devs get their works patented, and hold patents that are by RULE licensed under either the BSD/MIT license, or the GPL, or any of the OSL approved licenses.

There needs to be some legal oversight to guarauntee these patents are held under the license the inventor wants, and the license has to be approved(OSI for example).

We could then start a non-profit, activists who like Free software(the movement), AND companies who depend on Open Source(the business model), to legally defend this.

Open Source and Free Software need to come together on this and work towards a common goal.

Re:How to reform patent law?

[ikaruga]

Don't like to do that but I will quote myself from a similar topic from just a couple of days ago:

Well, I HATE this software argument about patents as, to be honest, EVERYTHING can be described as mathematics. From mechanical systems to genetic code, from electrical designs to source code. You can name anything: I can write it down either as mathematical model using a set of formulas or using a array of numbers. If mechanical designs and electronic systems can be patented so can be software. The problem with the current patent system, in particular in the US, is that it is a lousy version of an idea from the 19th century. It doesn't take in consideration how fast technology improves, barely acknowledges the immense variety of new tech fields and how their are interconnected and it's filled with abused double standards. How to solve this problem this problem? Modernize it and make it more strict(only absolutely novel tech for a much more limited time with very specific implementations). Is that perfect? NO. But a business is much more than just inventing stuff; use marketing, funding, quality, support and be secretive to overcome the copycats.

Software can be patented if the patent system was more adequate. If you don't want software patents then I don't want hardware patents either.

Re:How to reform patent law?

[interval1066]

Patenting ideas is a very bad idea, and to this date that's not allowed. You want to stifle innovation, start patenting ideas. Thankfully, patents still require a working model, or a detailed drawing, or something tangible to show the patent examiners.

Re:How to reform patent law?

[Karzz1]

You might want to bring your sarcasm detector in to the shop. I don't believe it is working correctly :D

Re:How to reform patent law?

[Anonymous Coward]

I think it'd be great if we could get google, red hat, and any other companies to start a foundation,

Why would Google, Red Hat and any other companies want to do that? You are aware that both of those organizations hold numerous patents of their own, right?

Re:How to reform patent law?

[h4rr4r]

Sounds good to me.
Abolishing patents would be great for the economy. Even just limiting them to 5 years would be a good move.

Not only is there the math argument you speak of but software is a plan for something. Just like you can't patent an architects drawings you should not be able to patent software.

We could of course just get rid of process patents and hardware ones would be unaffected. Software patents are really business process patents.

Re:How to reform patent law?

[InvalidError]

Two problems with shorter patents are that R&D costs for many modern inventions are growing exponentially and many of them are 10+ years in the making from initial concept research to first completed prototype.

Patents do not do you much good if they do not last long enough to have a reasonable chance of generating enough revenue to justify the effort before expiring. Companies may choose to opt for industrial secret which has no expiration date other than the time it takes others to figure it out instead, at which point you can still sue them for corporate espionage, plagiarism, DMCA or other infringement claims which would be just about as nasty as our everyday patent claims today if someone duplicates your invention suspiciously quickly.

However, I do not think software (actual written code) itself should be patentable - it is already covered by copyright. What should be patentable about software is the collection of principles and new algorithms it implements - the actual new intellectual work they represent - if they are genuinely innovative and non-trivial since all inventions are ultimately intellectual creations. Trivial cosmetic stuff (ex.: boot animations on Windows, Android, PS2, PS3, etc.) would still be trademarkable which would still let people duplicate the general concept as long as the resulting output looks and behaves different enough that it clearly stands as its own, unmistakable for the original.

But I agree that PTOs definitely need to clarify and raise the bar on patentability for both intellectual and physical inventions. They should hire engineering graduates along with subject matter experts to get a weighed opinion on obviousness from both ends of the experience spectrum.

Re:How to reform patent law?

[tlhIngan]

Reforming patent law would be simple, software should simply not be patentable. You can copyright it sure, but no patents.

Thing is, software is very special.

Prior to the computer age, humans generally created "stuff" or "art". Stuff like mechanical things - which are easily patentable, but not copyrightable. "art" things were copyrighted because they didn't generally serve any purpose other than aesthetic or entertainment. Of course, one could create mechanical art, but the utility of such generally wasn't there, and useful machines that also looked good generally were patented because they were stuff.

But software is neither. It's written, which implies copyright, but it can be stuff as well - like when it's a fundamental part of hardware (embedded software). Or maybe it IS hardware, when you write your RTL code for an FPGA or ASIC.

And therein lies the problem. Software is everywhere, and saying "we can't patent software' means that if I invent something that uses software in a fundamental way, that whole system of software+hardware may be unpatentable. However, if I were to implement the same software as a complex piece of hardware, it suddenly IS patentable? Like say I come up with a way to do radio transmissions more efficiently and closer to Shannon's limit than ever before. If I use it in an SDR, it would be software implemented, but if I implemented it using standard radio hardware and building blocks of mixers and detectors and other things, it would obviously be a hardware implementation. It would mean the former gets no protection, while the latter does.

The reality of life is we probably need to come up with a new form of IP protection, called, well, software. Thus it covers software, or anything written that requires hardware to perform some action. So my hardware+software thing - I can patent the hardware and protect the software inside it the same way I could with a complex assembly of chips and mechanical pieces I use to work around the need for a line of code. Likewise the RTL code would be covered under the software protection. As would Windows. or Word. Or Linux. Or whatever else.

The problem is software is very unique - it does things and sometimes it does things in clever novel ways. But at the same time, it's also something that's fixed onto a medium which means you now have two competing protections for it. Neither of which are completely adequate, either. Copyright may be good for the source, but it doesn't really handle the binary side very effectively (is the output of a compiler copyrightable? Or just the part that underwent human creativity, i.e., source code?). Patents make sense for some software (used to generate better ways of controlling some piece of hardware), but not for others (e.g., application software). It's also unique because software can be hardware.

Re:How to reform patent law?

[Anonymous Coward]

In addition to that, I think we should decrease the # of years to 5 for all but pharmaceuticals, the poster child of patents. For that industry, 15 years.

I guess you don't know the history of FM radio. RCA, with an AM radio empire and sights on television, used its political clout to keep FM radio off the airwaves until its patent ran out.

Its inventor died by his own hand.

I take it you're young; when you're 25, twenty years is a lifetime, but once you've gotten a little older you'll realise just how short a time 20 years is, let alone five.

Copyrights, otoh, are way too long. Patents' problems are many, but the length of patents isn't one of them.

Re:How to reform patent law?

[CBravo]

Patents are a two way deal: exclusivity in exchange for telling us the process of how you achieved it. I don't see how that is true with software; it is just a one way deal.

Re:How to reform patent law?

[V!NCENT]

Why not give everybody what they need?

Large coorporations should be able to invest a ton of money into R&D. They need these patents for revenue.

The only thing that sucks about it is this: free software (as in beer also) gets hurt in the process.

So why not keep the patent laws and pass a second one (or include a section in the former), that says: "may not use patents in software to make a profit from, or to compensate expenses".

Why is that so difficult?

Re:How to reform patent law?

[michelcolman]

What if a competitor with very large pockets publishes free versions of your software just to force you out of business?

Re:How to reform patent law?

[V!NCENT]

Compile and sell theirs.

Another approach - prior art

[lras]

I think it is probably a bad idea to rely on the expensive patent process to protect open source. Isn't it better to make the software available and visible so that it can be clearly established that it is prior art, i.e. already known by all, when someone tries to patent drawing rectangles on the screen, or whatever? I'm probably ignorant, but what's wrong with that approach? Is it less certain to succeed in a court, or is it possible to patent something that someone else has already done and explained how to do?

Re:Another approach - prior art

[Anonymous Coward]

The prior art idea was my first thought as well. But the problem with the prior art approach is that it does not solve the issue of patent trolls counting on their targets having small budgets rather than actual justice.

Re:Another approach - prior art

[MrEricSir]

I think it is probably a bad idea to rely on the expensive patent process to protect open source. Isn't it better to make the software available and visible so that it can be clearly established that it is prior art, i.e. already known by all, when someone tries to patent drawing rectangles on the screen, or whatever?

The summary doesn't mention this, but a part of what Open Invention Network does is exactly that. Apparently patent examiners only look in certain places for prior art, and OIN can help you publish your work there.

Why patent?

[Anonymous Coward]

Why patent open source software - can it not be registered somewhere with a date stamp to prove it is prior-art?

Re:Why patent?

[hashish16]

You can register it to ip.com as prior art. Who may not want to patent something, but don't want their competitors to get a patent on it so they submit it anonymously to ip.com

Thickets of Thickets within Thickets

[Virtucon]

I can envision a world in which the USPTO just rubber stamps everything coming in as an application and letting the courts determine which are valid or invalid. Wait, we have that system now.

Re:Thickets of Thickets within Thickets

[Motard]

We should change the system so that a panel of engineers, chemists, and the like rule on patents.

I'd love to see the lawyer's reactions.

Re:Thickets of Thickets within Thickets

[Anonymous Coward]

Patent examiners are required to have both a technical degree, such as those you listed, and a law degree.

open source hardware

[schneidafunk]

Okay, then ask the same patent question about open source hardware.

Our patent system harms technological progress

[ikhider]

Read Stallman's 'Free Software, Free Society' or this well-written piece by Tom Wolfe on Patents: http://ikhider.com/wp-content/uploads/2013/02/Land-of-Wizards-by-Tom-Wolfe.zip Our patent system was originally conceived as a way to encourage creativity and inventiveness, but now relegated to whomsoever has the deepest pockets for lawyers. A corporation can take someone's idea and claim it as their own and win in a lawsuit simply because their law team is bigger. The patent system needs a serious overhaul.

Re:Our patent system harms technological progress

[Anonymous Coward]

This is why the rest of the world is forging ahead of the US in innovation. I expect we will be third-world in a few short years as our lawyers and laws mean nothing outside our borders. Unless they are enforced by military might which makes us the world's bad guy (more than we are already).

Article is confused about purpose

[Theaetetus]

the nature of FOSS development itself may mean that patenting some collaboratively developed inventions is inherently more difficult, if not impossible, in many others.

... and...

For starters, because of the collaborative, incremental nature of FOSS development, in many cases it would be difficult to determine who from any given community qualifies as a joint inventor. Only those that contribute significant material to the inventive concept embodied in the patent’s claims are considered joint inventors; those that merely implement the invention or that contribute only “prior art” material are not.

... are both entirely true. As the article notes, in order for a patent to be enforceable, all of the inventors have to be properly named on the patent - no extra inventors, and no leaving anyone out - and they all need to either assign the patent to a common entity, or agree to jointly participate in any lawsuit:

For instance, enforcing jointly owned patents in a court of law requires the unanimous consent of all joint owners.

So, yes, it would be difficult, if not nigh-impossible, to enforce these FOSS patents.
Let me repeat that...
Enforce these Free and Open Source Software patents.

There seems to be some fundamental confusion about purpose. And who are you going to enforce them against? The trolls, as the summary suggests? But they're trolls because they don't make any products, and if they don't make anything, then they can't infringe. So, what, in the name of "defending against patent trolls", Free OSS foundations are going to start suing manufacturers such as Microsoft, Google, Apple, or Red Hat?

All of that said, there is a very good reason the FOSS community should be filing patents - patent Examiners look to their own databases first for prior art. If FOSS inventors file patent applications, let them be published, and then abandon the application to the public domain, that will add to the set of available prior art and make it more difficult for trolls to get patents. And since you never intend for such applications to issue, they can be drafted and filed very cheaply: throw in your source code, your comments or flow charts or functional specs, slap a single claim on the end, and you're good enough to publish.

Re:Article is confused about purpose

[Ash-Fox]

I stopped using the GPL

Whoever you are, you didn't seem to make an impact since I can't think of any well known opensource products that stopped using GPL because of a single individual. I'm guessing you just wrote a XML parser or something else done a thousand times.

Re:Article is confused about purpose

[Anonymous Coward]

Will program for ego....

Some, with a higher level of abstraction take themselves out of the equation and focus on the task at hand and the code to implement it now and how it might evolve in the future. Its not about you, its not about them, its not even about the end user its about the 'codes' freedom.

It results in better code, no lockin other than by choice, and code that evolves over time to encompass more than originally thought of by the people that handle it over time.

You can go back to stroking your ego now.

Re:Article is confused about purpose

[Anonymous Coward]

The article is written by Microsoft.

I do have to thank the authors though. I'm about to release a big project under the GPLv3 and I've been debating if a patent or two was worth while. Since MS says I shouldn't bother, I'm 100% decided I should.

no need

[TitusGroan8856]

You don't need to patient open source software to protect it from patent trolls. you just write it and release it to the public. it then becomes prior art which invalidates any later patents.

Re:no need

[Nerdfest]

Interesting ... when did that start? It sure hasn't semed to make much of a difference so far. People need to spend a lot of money and time in court to show that there's prior art.

Re:no need

[Anonymous Coward]

If prior art worked then Microsoft and Apple would not have half the patents they have today. I seen prior art forget Amiga, Acorn and Amstrad, and that's only some of the company's starting with A

Re:no need

[gnasher719]

You don't need to patient open source software to protect it from patent trolls. you just write it and release it to the public. it then becomes prior art which invalidates any later patents.

The tactics of patent trolls is not to sue you and win a lawsuit, it is to sue you or threaten to sue, in the hope that you cough up money in order for them to go away. Prior art doesn't help there; they can sue you no matter how inane or obvious the patent is, and no matter how much prior art there is. You still have to spend money on lawyers and courts.

Re:no need

[Theaetetus]

Interesting ... when did that start?

1790.

That's because it's tough to find (USPTO Examiners search their own internal databases first, then Google, and then move on to things like IEEE databases. They're not typically searching Github), and if it needs interpretation, then people will disagree about what it shows. For example, if you wanted a patent that claims "1. An operating system, comprising: Linux," then your patent application is going to be anticipated by Linux. However, if you wanted a patent that claims some esoteric way for managing memory in the network stack, and someone has done something similar but not exactly the same, then maybe there's an argument that your implementation is different in a nonobvious way.

Can't its status as prior art serve the purpose?

[daboochmeister]

I don't understand why patenting FOSS offers an advantage over its use as prior art. Is it a "mutually assured destruction" model, where e.g. Google wants patents to assert defensively? Or is it cheaper in the long run to have an explicit patent on something, rather than having to defensively assert it as prior art, if the patent office swing-and-a-misses it and grants an illegitimate patent to some other company?

It's not rocket science.

[VortexCortex]

It's not entirely clear how best to reform patent law in order to better reconcile it with alternative models of innovation.

I'm not the only sentient being here right? I mean, OK, what's the aim of patents? To give incentivize folks to release technology and ideas into the public domain with monopoly protections. FLOSS should be exempt from patents because it directly meets the goal of patents without desiring any damn monopoly at all.

Oh? What's that? How will businesses compete with the fully open software if they can't sue developers over patent infringements? PROBLEM FUCKING SOLVED.

Re:It's not rocket science.

[gnasher719]

I'm not the only sentient being here right? I mean, OK, what's the aim of patents? To give incentivize folks to release technology and ideas into the public domain with monopoly protections. FLOSS should be exempt from patents because it directly meets the goal of patents without desiring any damn monopoly at all.

That's completely wrong. The maker of proprietary technology is given monopoly protection for making the invention public. If Open Source were allowed to copy that technology then the incentive would be largely gone.

Take Xerox with their extremely successful copying technology. Any competitor could have made a copy of their Xerox copier as long as the software inside was open source? Or Xerox' largest competitors could have developed that software together and buried Xerox?

Re:Can't its status as prior art serve the purpose

[the eric conspiracy]

Holding patents is a defensive measure in the following ways:

1. It places art in the public record which may later be claimed as prior art. Of course other publication may also server the same purpose.

2. The patent office eats it's own dog food, that is prior art in the form of patents seems more likely to be searched and cited than the general literature.

3, Patents in a particular field may discourage a competitor from filing patents or even working on the same problem.

4. Patents in a field may trigger mutually beneficial cross licensing opportunities rather than lawsuits.

5. Patents in a field may provide counter-suit fodder or also M.A.D. style deterrence that is sort of an informal mutual cross-license that is cheaper than an actual shit storm of lawsuits.

Isn't it all maths?

[gnasher719]

Isn't all software maths, and therefore not patentable, or does that not apply to open source software?

Good business plan

[bhlowe]

Get the programmers to write the code for peanuts.. then pay boatloads of money to the lawyers. Call it "open source". I personally like to hire programmers, sell software, and avoid lawyers.

"Commons" Patents

[Anonymous Coward]

Tax the corporations to fund it (just fine a miserable part of what they're regularly caught laundering every year). And then charge the corporaions (not people) copyright if they use it. When it steps into their doors, or money from it does. Let the charming taxmen care for that delightful task.

"Commons" patents necessarily belong to the people. Like drinking fountains do, in civilized coutries. Free to use, not to sell, rent, block, and so on. Except for the jerk that tries to back up a water truck to fill it (DoS). Inviolable, un-sellable, untransferable, etc. Much more difficult stuff is done all over the place, in standard practice.

Prior Art

[Anonymous Coward]

Is there a need to patient FOSS? Can't it invalidate patents due to prior art, or did the first to file change all that?

Impossible

[Errol backfiring]

You cannot solve a problem with the same mind that created it. Right now, the patent offices (on both sides of the Pond) are the problem. If prior art does not stop patent attacks, nothing will. Funding the enemy is the worst solution possible.

Re:Impossible

[idontgno]

You cannot solve a problem with the same mind that created it.

Copyleft would like to have a word with you.

While abolishing software patents is the right answer, it's not a feasible short-turn answer. And your silliness about "funding the enemy" pretty much underscores your naivete. Patent offices will continue to be well enough funded to work entirely to the pigopolists' interests. But if you don't play the game (and play it to win), you automatically lose.

Carving out refuges of protected technology with positive (defensive) intent is the a far better answer than your idea -- the technological equivalent of retreating to a shack in the wilderness and mailing package bombs.

A new legal instrument?

[bdwoolman]

When it comes to protecting FOSS openness it seems that patents are an imperfect tool to say the least. A patent is a legal lock. Typically one does not open doors with a lock only. It is possible, of course. But, ideally, what you want is a door knob, too. The Creative Commons has done wonders for copyright IMHO. What about a family of similar staged protective instruments in the place of traditional patents? It seems Congress might have to get involved (Spaghetti Monster preserve us!), but perhaps via executive action the Patent Office could simply lend its imprimatur to new legal devices that guarantee openness. Could the EFF advocate for such a framework? The idea of defending openness seems very prudent in the current environment. However with the wrong kind of patent protections the FOSS community might wind up on its own doorstep locked out of the very house it built.

Just wait until the good guys get bought.

[only_human]

This is risky because a white hat is only benign until bought by a black hat.

Why patent Open Source?

[houghi]

Why patent it at all? Even if what you have should not be patentable, but your country somehow allows for software to be patentable, why patent it at all?

Imagine that you make something available and you do not patent it. Somebody else sees it and patents it. Good for him. He just wasted a fuckton of money for something that can be easily proved as having previous art, BECAUSE it is open source.

If you want those patents to defend against other patents, beware of the following:
1) You need a LOT of money.
2) You are now fighting in the mud with the pigs. Only to realize after a while that the pig likes it.

Re:Why patent Open Source?

[Anonymous Coward]

Even with prior art on your side, it's still very expensive to get the opposing side's patent revoked, and until said patent is revoked, everyone who uses the software will be under constant legal threat.

It will go something like this
1) OpenSource makes software
2) Some guy takes software and patents it
3) He starts suing small companies that can't afford the high legal entry fee to fight the case
4) As long as he keeps targeting small people with not much funding, he can keep attempting to sue other people and go "judge hunting", if one judge rejects the case.

Millions of dollars can be extorted by the time EFF gets wind and jumps in. Just look at the guy who patented scanning to email. He's been making bank.

Re:Can't its status as prior art serve the purpose

[Anonymous Coward]

So, if you can't beat 'em, join 'em?

What should open source programmers do in parts of the world without software patents?

OIN?

[TemporalBeing]

I wasn't aware that OIN was patenting anything, rather that they were just a group that you could join and donate existing patents to or draw from in order to protect yourself when sued over patents - e.g. a patent pool for self defense. Members were required to not sue each other over any patents in the pool. Or did I miss something?

Re:Can't its status as prior art serve the purpose

[the eric conspiracy]

> What should open source programmers do in parts of the world without software patents?

Nothing. If there are no software patents you can't be sued for infringement, right?