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Patenting Open Source Software

Posted by Soulskill on from the system-and-method-for-protecting-innovation dept.

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.'"

14 of 60 comments (clear)

  1. How to reform patent law? by h4rr4r · · Score: 5, Insightful

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

    1. Re:How to reform patent law? by the+eric+conspiracy · · Score: 3, Informative

      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.

    2. Re:How to reform patent law? by davydagger · · Score: 2

      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.

    3. Re:How to reform patent law? by InvalidError · · Score: 2

      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.

    4. Re:How to reform patent law? by tlhIngan · · Score: 2

      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.

  2. Another approach - prior art by lras · · Score: 3

    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?

  3. Thickets of Thickets within Thickets by Virtucon · · Score: 4, Informative

    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.

    --
    Harrison's Postulate - "For every action there is an equal and opposite criticism"
    1. Re:Thickets of Thickets within Thickets by Motard · · Score: 2

      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.

  4. Our patent system harms technological progress by ikhider · · Score: 2

    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.

    --
    "SO we bide our time, waiting for a purer kick to bloom and the future is still bleak, uncertain and beautiful" -GSYBE
  5. Article is confused about purpose by Theaetetus · · Score: 4, Insightful

    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.

  6. Re:no need by Nerdfest · · Score: 2

    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.

  7. Re:Can't its status as prior art serve the purpose by the+eric+conspiracy · · Score: 2

    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.

  8. Re:Why patent? by hashish16 · · Score: 2

    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

  9. Re:no need by gnasher719 · · Score: 2

    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.