Group Attacks Bad Software Patents Before They're Approved

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Group Attacks Bad Software Patents Before They're Approved

Posted by samzenpus on Wednesday September 18, 2013 @02:01PM from the not-on-our-watch dept.

Curupira writes "Ars Technica discusses how the Linux Defenders group are exercising the rights granted by the America Invents Act to identify and fight the patents that potentially threaten Linux and open source software. From the article: 'In a session at LinuxCon today, Linux Defenders director Andrea Casillas explained how the group is using rights granted by the new law to fight patent applications. A project of the Open Invention Network, Software Freedom Law Center, and Linux Foundation, Linux Defenders examines the 6,000 new patent applications published each week, attempting to identify those that are potentially threatening to Linux and open source. Then, the group looks for prior art that would invalidate at least some of the claims in the patents.'"

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Can I patent by Anonymous Coward · 2013-09-18 14:14 · Score: 1, Funny

contesting bad patents?
A trolls got to make a living you seen the price of bridges these days!
Good intentions but potentially harmful by Anonymous Coward · 2013-09-18 14:22 · Score: 5, Interesting

Patent attorney here.
While it seems like this is a great idea, getting more prior art in front of the PTO is may not be the best strategy. It allows the patent applicant to try to amend the claims or argue around the prior art. A lot of the the time, the examiner responsible for a patent application is not particularly worried about the quality of the patent being issue but is more concerned with just getting the application off his/her docket. This makes it reasonably likely that the examiner will either ignore the new prior art or accept whatever dubious amendment/argument that the patent owner submitted. Once a patent is allowed over prior art that was made of record, it is much more difficult to use that prior art again later.
I would suggest that a better strategy is to just record and publish lists of prior art after the patent issues. Then, later on if the patent is asserted, there is easy access to fresh prior art that can be used to kill a patent.
1. Re:Good intentions but potentially harmful by Anonymous Coward · 2013-09-18 14:32 · Score: 1
  
  how about significant financial penalties for refused patents due to prior art - would making this a significant revenue source change the focus of the examiner (organisation)?
2. Re:Good intentions but potentially harmful by twmcneil · 2013-09-18 14:46 · Score: 4, Insightful
  
  a better strategy is to just record and publish lists of prior art after the patent issues
  The best part of your plan is that it keeps all the patent attorneys gainfully employed. Amiright?
  
  --
  "The ferrets, they're every where I tell you!"
3. Re:Good intentions but potentially harmful by PhrostyMcByte · 2013-09-18 14:47 · Score: 3, Insightful
  
  A lot of the the time, the examiner responsible for a patent application is not particularly worried about the quality of the patent being issue but is more concerned with just getting the application off his/her docket. This makes it reasonably likely that the examiner will either ignore the new prior art or accept whatever dubious amendment/argument that the patent owner submitted.
  This may very well be true, and I would sadly not bat an eye in surprise.
  
  I would suggest that a better strategy is to just record and publish lists of prior art after the patent issues.
  But seriously, the fact that the patent office is so messed up that this is the advice when it comes to reducing patent garbage... this launches a huge war in my head, between the pragmatic programmer and the idealistic open-source hacker.
  This is fucking disgusting.
4. Re:Good intentions but potentially harmful by Redmancometh · 2013-09-18 14:55 · Score: 1
  
  No, that would hurt small companiess more than the above.
5. Re:Good intentions but potentially harmful by GumphMaster · 2013-09-18 15:01 · Score: 1
  
  So your solution is to stockpile ammunition so that the patent still issues, the lawyers involved in its authoring are still paid, and when the patent is used another set of lawyers is paid to fight in court to invalidate something that should never have been issued in the first place. Pardon my cynicism, but you are just perpetuating the status quo: innovation suffers for fear of litigation and lawyers win coming and going.
  
  --
  Patent litigation: A doctrine of Mutually Assured Destruction... in which everyone seems willing to push the button
6. Re:Good intentions but potentially harmful by Dachannien · 2013-09-18 15:02 · Score: 1
  
  I disagree. As long as the third-party submitted prior art is submitted as early as possible - as in, before the examiner has picked up the case and started examining it - then the examiner has a huge incentive to carefully look at the third-party art. Good art submitted in this fashion will save the examiner a huge amount of time in searching the case.
  Prior art submitted after things are under way, however, may get put on the back burner because there are some situations in which changing the prior art being relied upon would result in the examiner getting no credit for the next one or two actions in the case.
7. Re:Good intentions but potentially harmful by Anonymous Coward · 2013-09-18 15:02 · Score: 1
  
  A lot of the the time, the examiner responsible for a patent application is not particularly worried about the quality of the patent being issue but is more concerned with just getting the application off his/her docket. This makes it reasonably likely that the examiner will either ignore the new prior art or accept whatever dubious amendment/argument that the patent owner submitted.
  This may very well be true, and I would sadly not bat an eye in surprise.
  
  I would suggest that a better strategy is to just record and publish lists of prior art after the patent issues.
  But seriously, the fact that the patent office is so messed up that this is the advice when it comes to reducing patent garbage... this launches a huge war in my head, between the pragmatic programmer and the idealistic open-source hacker.
  This is fucking disgusting.
  Same patent attorney back.
  This isn't really the only advice for dealing with the issue. This is just advice for this specific situation with the current framework.
  The real solution is to raise the standards for examiners and pay them better. A huge problem with the PTO right now is that a significant portion of their revenue generated by fees paid to the PTO is siphoned off and put in the general fund of the US government. In other words, the PTO generates a "profit" for the US government that is spent elsewhere. If the PTO were able to use all of the money that they generate, they could hire more examiners with higher standards, pay them better, and require higher levels of training. The PTO could also potentially make it cheaper to challenge issued patents later on after the application process is complete.
8. Re:Good intentions but potentially harmful by bzipitidoo · 2013-09-18 15:05 · Score: 4, Insightful
  
  I agree this effort could be harmful. And, for more reasons than you give. This is playing the patent trolls' game. These heroes are trying to work within a bad system, rather than change the system itself.
  What is the best direction to take? How about, abolish software patents? How can that be accomplished? Perhaps the best way is to make patents so painful that even big companies start to think they'd be better off without them. In this respect, trolls are actually doing us all a service. The more that trolls gouge Apple, MS, Oracle, IBM, Google, and the rest of the big tech companies, cost them millions in legal fees, court costs, awards of damages, injunctions that compel them to pass up opportunities, inconvenience and lose customers, the more these politically weighty companies might decide to instruct their bought congress critters to consider eliminating software patents. I would guess RIM saw the light a few years back when NTP sued them. Hope the trolls are also working over Big Pharma, plus Monsanto. Big Pharma may be the major group that most fervently supports strong intellectual property laws, more even than Big Media.
  Effective grass roots efforts are hard to pull off. Have to be very big and noisy to scare representatives into heeding them. Last one that really worked was the effort to stop SOPA and PIPA. I think it only worked because Wikipedia got in on the act, and shut down their encyclopedia for one day.
  
  --
  Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
9. Re:Good intentions but potentially harmful by Anonymous Coward · 2013-09-18 15:07 · Score: 1
  
  Its not a solution. I never said it was as solution. I said it was a better strategy. What they are doing isn't a solution either because it won't result in the desired result. That was my point. No real solutions to the problem were presented here. The solutions are going to be a lot bigger than finding prior art. The solutions involve raising the standards of examination.
10. Re:Good intentions but potentially harmful by PPH · 2013-09-18 15:15 · Score: 4, Insightful
  
  more concerned with just getting the application off his/her docket.
  So, stamp it 'DENIED'.
  
  It allows the patent applicant to try to amend the claims or argue around the prior art.
  What this whole game overlooks is that there needs to be a way to send worthless patents away. Permanently.
  
  --
  Have gnu, will travel.
11. Re:Good intentions but potentially harmful by Anonymous Coward · 2013-09-18 15:17 · Score: 5, Insightful
  
  Actually, I would say the opposite. Only a very, very small percentage of patents are ever actually asserted. Looking at every patent application that is published and submitting prior art with descriptions of the prior art is vastly more time consuming than simply looking up previously identified prior art and killing only those patents that are later asserted. Also, it is much harder to patent owners to amend claims after the patent has issued.
12. Re:Good intentions but potentially harmful by Anonymous Coward · 2013-09-18 15:39 · Score: 4, Interesting
  
  Patent Examiner here:
  Don't forget that the amount of time that we get to examine an application hasn't changed since the 1970s in most areas. In many areas there is at least two orders of magnitude more prior art and case law to consider now, but the quota is exactly the same. Yet raising the hours of examination per application is a non-starter because the Office is busy trying to dig itself out of the backlog hole which they dug by the Office (and Congress) falling prey to the trap you mentioned.
  Also look out for the next few years as senior examiners retire instead of dealing with the new Patent Classification scheme.
  Very, very few people in the Patent system don't care about issuing shitty Patents. I'd feel pretty awful if anything I've issued got overturned in court.
13. Re:Good intentions but potentially harmful by exomondo · 2013-09-18 16:30 · Score: 1
  
  But seriously, the fact that the patent office is so messed up that this is the advice when it comes to reducing patent garbage... this launches a huge war in my head, between the pragmatic programmer and the idealistic open-source hacker.
  This is fucking disgusting.
  Well obviously it means acting within the current parameters of the system or making an effort to change the system and while I'm sure there is a percentage of people here willing to devote a small amount of time to finding prior art I doubt many will actually do anything to attempt change the patent system beyond complaining about it here.
14. Re:Good intentions but potentially harmful by tao · 2013-09-18 21:20 · Score: 2
  
  The *real* solution is to stop issuing software patents in the short term and patents in general in the longer term.
15. Re:Good intentions but potentially harmful by michelcolman · 2013-09-18 21:32 · Score: 1
  
  The more that trolls gouge Apple, MS, Oracle, IBM, Google, and the rest of the big tech companies, cost them millions in legal fees, court costs, awards of damages, injunctions that compel them to pass up opportunities, inconvenience and lose customers, the more these politically weighty companies might decide to instruct their bought congress critters to consider eliminating software patents.
  Nope, they'll just play the same game themselves. All of those big companies are stockpiling huge amounts of patents for the most mundane ideas, just to use as ammo against others. They don't mind paying the odd couple of million dollars every now and then. It's only the little companies and individuals who really get hurt. RIM being a notable exception, but things rarely get that bad.
16. Re:Good intentions but potentially harmful by Captain+Hook · 2013-09-18 21:38 · Score: 1
  
  Trolls don't gouge Apple, MS, Oracle, Google and the rest for the most part; because they know they will be fought and will lose.
  
  Trolls go for the little guys without the resources to defend themselves, and in doing so, help the big guys without the big guys having to get their hands dirty.
  
  --
  These comments are my personal opinions and do not necessarily reflect the opinions of the other voices in my head.
17. Re:Good intentions but potentially harmful by TheRaven64 · 2013-09-18 21:47 · Score: 1
  
  Who do you think is going to be amending the patents when they're going through the cycle of submit, have prior art reported, amend, resubmit. Hint: It's not engineers...
  
  --
  I am TheRaven on Soylent News
18. Re:Good intentions but potentially harmful by dbIII · 2013-09-18 22:05 · Score: 1
  
  I'm sure that is very good advice but it's depressing since it indicates the patent process is almost exactly the opposite of what most people assume it should be.
19. Re:Good intentions but potentially harmful by TheRaven64 · 2013-09-18 23:50 · Score: 1
  
  I'm sure that venture capitalists would love to fund someone with a new idea and a business model, knowing that they have no recourse when one of the existing players in the market sitting on a large war chest decides to throw ten times the engineering resources at the same problem. First mover advantage only goes so far...
  
  --
  I am TheRaven on Soylent News
20. Re:Good intentions but potentially harmful by drinkypoo · 2013-09-19 00:04 · Score: 1
  
  A lot of the the time, the examiner responsible for a patent application is not particularly worried about the quality of the patent being issue but is more concerned with just getting the application off his/her docket.
  You mean, they're concerned with finding a way to approve the application, because the patent office gets money when you approve an application, and that keeps them employed.
  
  --
  "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
21. Re:Good intentions but potentially harmful by usuallylost · 2013-09-19 00:49 · Score: 1
  
  You could argue that the larger firms actually benefit from the system as it is now. Sure they have to pay the occasional troll a few million here and there but they tend to have billions in reserves so that they can afford it. The small start up companies that could present a risk to their market position generally do not have those kind of reserves. At the very least their growth is slowed by this and at worst they might even be put out of business. So it is like the big companies are taking a controlled dose of a toxin that they know they will survive but which their weaker competitors may well not survive.
  Another thing the larger players have is that if one of these trolls every really threatens them they have billions of dollars, in house legal council and top law firms on retainer. They can put up one hell of a legal defense if they want to. Another thing their smaller competitors can't really do anywhere near as effectively.
22. Re:Good intentions but potentially harmful by Dragonslicer · 2013-09-19 02:02 · Score: 1
  
  The real solution is to raise the standards for examiners and pay them better. A huge problem with the PTO right now is that a significant portion of their revenue generated by fees paid to the PTO is siphoned off and put in the general fund of the US government. In other words, the PTO generates a "profit" for the US government that is spent elsewhere. If the PTO were able to use all of the money that they generate, they could hire more examiners with higher standards, pay them better, and require higher levels of training. The PTO could also potentially make it cheaper to challenge issued patents later on after the application process is complete.
  Wasn't that one of the most important and least mentioned changes in the AIA? I remember seeing that the PTO gets to keep their money now and use it to hire more examiners.
23. Re:Good intentions but potentially harmful by Theaetetus · 2013-09-19 02:53 · Score: 1
  
  more concerned with just getting the application off his/her docket.
  So, stamp it 'DENIED'.
  They do. 80-90% of patent applications are initially rejected.
24. Re:Good intentions but potentially harmful by bdwebb · 2013-09-19 05:15 · Score: 1
  
  I completely agree...reasoned discussion is hard to come by and most people disregard ACs based upon the fact that 99.9999% of ACs are trolls or are users who have an ID and are posting AC so that they can troll. I don't like that this is the case because I'm an advocate of privacy (and I actively try to read AC posts, especially when moderating because of this) but it definitely is the norm and limits the exposure of the discussion.
25. Re:Good intentions but potentially harmful by HiThere · 2013-09-19 06:19 · Score: 1
  
  A better solution is abolishing software patents. Software should be protected by copyright and trade secrets. Patents on software is an extremely bad idea, has always been an extremely bad idea, and has just gotten worse every year since Intel first managed a moderately plausible patent. (That was actually a hardware patent if properly understood, and as a hardware patent it should have been void as trivially obvious. But because the software being burned into the ROM (FPLA?) was involved, it looked like something new. Well, the software was original, and deserved copyright protection, but not a patent. And the ROM (FPLA?) while fairly new at the time, was just being used as designed.
  
  --
  
  I think we've pushed this "anyone can grow up to be president" thing too far.
Re:Very interesting... by cdl · 2013-09-18 14:26 · Score: 2

And the others you mention aren't? BTW, Sun doesn't exist anymore, it's in Larry-land...
Re:Very interesting... by Nerdfest · 2013-09-18 14:29 · Score: 4, Interesting

It's a tight race in douche-baggery between Oracle and Apple, but I think Apple has the upper hand in useless patents.
Re:Very interesting... by Anonymous Coward · 2013-09-18 14:32 · Score: 1

How do you steal an idea? Do you hold somebody down and insert a probe into their brain?
Re:Very interesting... by Nerdfest · 2013-09-18 14:41 · Score: 4, Insightful

You make your own copy of an application and then block the original from your curated marketplace.
Re:Can I patent by gagol · 2013-09-18 14:41 · Score: 1

Slashdot: the only news site with reruns!

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Tomorrow is another day...
6000 a week?! by oldhack · 2013-09-18 14:41 · Score: 1

That's like DoS attack.

--
Fuck systemd. Fuck Redhat. Fuck Soylent, too. Wait, scratch the last one.
Re:Very interesting... by gagol · 2013-09-18 14:45 · Score: 1

If more than one person have a simila idea in a close enough time frame, similar enough to generate competing patents, it should be ruled as obvious and not patentable as too obvious. But we live in a world where most judges and petent reviewers are completely clueless about what they make decision about. Not cool.

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Tomorrow is another day...
A shame by CuteSteveJobs · 2013-09-18 14:54 · Score: 4, Insightful

It's a shame that so many in the public must give up their time for free to try and counter inaction by Congressmen.
1. Re:A shame by larry+bagina · 2013-09-18 15:18 · Score: 2
  
  inaction by Congress is, in most cases, preferable to action by Congress.
  
  --
  Do you even lift?
  These aren't the 'roids you're looking for.
Examiners Replaced by Volunteers? by organgtool · 2013-09-18 15:03 · Score: 3, Insightful

Linux Defenders examines the 6,000 new patent applications published each week, attempting to identify those that are potentially threatening to Linux and open source.
I wonder how much work these people could be contributing to open source projects if they didn't have to waste time sifting through mountains of garbage patents to do the jobs that the patent examiners should be doing. Add on to that the advantage that other countries have by not having to waste time on this nonsense and it just seems silly to justify the existence of software patents. But since these patents make big money for powerful companies who bribe legislators, I'm not holding my breath for anything to change.
Re:Can I patent by Anonymous Coward · 2013-09-18 15:03 · Score: 4, Interesting

A sarcastic post attacking a company, practice, or person scorned by the majority of Slashdotters, will often be modded up even if the idea has been posted 500 times before.
Moderation on this site basically sucks. Mods are supposed to facilitate give-and-take discussion, not vote for what posts they agree with.
Re: Very interesting... by dr.frank.tate · 2013-09-18 15:45 · Score: 1

Is there a way others (like me) help with this cause? Or others?
Linux Itself by Nom+du+Keyboard · 2013-09-18 15:47 · Score: 1

Hey, wouldn't Linux itself constitute prior art to patents that threaten it?

--
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Sounds like the job of the patent office by kry73n · 2013-09-18 15:49 · Score: 3, Funny

I really don't get it, isn't looking for prior art the main job of the patent office before granting a patent?
1. Re:Sounds like the job of the patent office by Anonymous Coward · 2013-09-18 17:39 · Score: 2, Interesting
  
  No, searching for prior art is the job of the applicant. That is why the applicant is supposed to give a list of prior art to show how he himself has come up with his invention and how it is different.
  Of course:
  * The patent pool is to big to search.
  * The pool of other prior art sources (publications and products) is to big to search.
  * Description of patents is unreadable by anyone, on purpose.
  * Lawyers recommend inventors to not look for prior art, because of triple damages.
  * Inventing and implementing, especially these days, is so easy that you don't need any help.
  I believe patents in this age should all go, not just software patents. If an industry needs patents to survive then this should be proven before allowing an exception.
Bailing the Titanic with a thimble by russotto · 2013-09-18 15:50 · Score: 1

And no, more and bigger thimbles won't help.
Why don't we get a cut off the fee? by fsterman · 2013-09-18 16:00 · Score: 3, Funny

Given that patents cost $1,000-$10,000 each just in fees to the USPTO and their multi-year backlog, why don't they just offer up bounties? They could assign them semi-randomly so that by the time a patent reaches an actual examiner, they would have plenty of independent reviews of the material. Given that it took Joel Joel Spolsky 10 minutes to kill a Microsoft patent, I would spend an hour or two for a cut on the fees.

--
Is there anything better than clicking through Microsoft ads on Slashdot?
when you show the patent examiner what part, how, by raymorris · 2013-09-18 16:36 · Score: 3, Informative

Sure, when you show the patent examiner what part of the Linux OS (or just kernel if you prefer) previously did that thing in the patent, how, and when. It sounds like that's the type of thing these people are doing.
What if we by EuclideanSilence · 2013-09-18 18:27 · Score: 3, Insightful

1) Make those who file for patents pay even if the patent is not approved.
2) Give a portion of the money paid to the first people who find prior art or make a good case for not supporting a patent.
Re:Very interesting... by TheRaven64 · 2013-09-18 21:45 · Score: 1

None of the listed companies come close to IBM for patents filed per year.

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I am TheRaven on Soylent News
Re:Very interesting... by chrismcb · 2013-09-18 22:46 · Score: 1

If more than one person have a simila idea in a close enough time frame, similar enough to generate competing patents, it should be ruled as obvious and not patentable as too obvious
Why? Is something only non obvious if only ONE person in the world can figure it out? History is rife with two or three people racing to an invention. that doesn't mean the invention is obvious. I would think it would take more than two or three geniuses figuring something out to claim it as obvious.
Re: Very interesting... by PixetaledPikachu · 2013-09-18 23:50 · Score: 2

And probably none of those has business portfolio as extensive as IBM
Re:Very interesting... by drinkypoo · 2013-09-19 00:14 · Score: 2

None of the listed companies come close to IBM for patents filed per year.
IBM probably has their share of bad patents, but none of the listed companies come close to IBM for R&D budget, either.

--
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Re:Very interesting... by TheRaven64 · 2013-09-19 00:31 · Score: 1

MSR has a budget of close to $6bn annually. This is just for blue-skies research and does not include the development budget for things that MS actually turns into products. IBM's total R&D budget is also $6bn annually. So, I'd say they're pretty close...

--
I am TheRaven on Soylent News
Re:Very interesting... by Nerdfest · 2013-09-19 00:47 · Score: 3, Insightful

I'm not remotely a fan of IBM, but with respect to patents, most of theirs (but not all) seem to be decent hardware patents. They do a lot of R&D on leading edge processor and storage tech. I'm not sure how MS spends that much money on R&D.
Re:Very interesting... by bdwebb · 2013-09-19 05:10 · Score: 1

If even have two or three people racing toward some sort of invention, I also think it should be thrown out but not necessarily on obviousness criteria. Ultimately there are multiple people working on the same thing and if they are not directly inspired by one another, how do you decide who gets to patent the idea and who has completely wasted their time?

There should be no patent available in circumstances where it can be proven that multiple people or organizations simultaneously developed similar methods to accomplish the same goal in my opinion. Otherwise whoever has the most money for research and can finish first becomes teh winnar and competition is spoiled by a monopoly on the technology in question.
Re:Very interesting... by vilanye · 2013-09-19 11:12 · Score: 1

Calculus was invented independantly at the same time.

The proof that there are undecidable problems in first order logic was solved independantly and at the same time(Lambda Calculus and Turing Machines).

None of those are patentable and since every program is trivially a Turing Machine and thus equal to the Lambda Calculus, software should not be patentable.
This is a good thing... by apexwm · 2013-09-20 05:04 · Score: 1

Finally some aid in correcting some of the issues we are seeing with patent bullying that has become very popular. Unfortunately the patent system is broken in regards to software, so until it is updated it is great to see organisations like this helping the industry.