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The Rise and Rise of Software Patents
Dean Povey writes "LinuxJournal has a great article on the plethora of
bogus software patents and their possible
effects on the Open Source community." This isn't "new" news (it was published Aug. 10), and a lot has aleady been written on the subject, but this is one of the most thoughtful articles I've seen about software patents, and their effects on Linux and free software development in general.
A few thing are needed:
The Patent and Trademark Office (PTO) needs to be better funded from the Federal Treasury. One big reason why patent searches are so expensive is the PTO is dependant on user fees for operating expenses. This benefits the big companies, hurts the small companies, and locks out the Free Software developer entirely. They also need to improve their library of unpatented prior art, which will cost them money. Whether or not you think software patents should be abolished, this is necessary, to protect against things such as software patents masquerading as hardware patents. The best way to encourage improved PTO funding is by contacting your Congressmen and Senators.
The PTO needs to know that it is not enforcing its own rules properly, and it needs to clean up its act. Congress can't really help here, this is a matter of the executive branch. Write to the Commissioner of the PTO (Q. Todd Dickenson), his boss, the Secretary of Commerce (William M. Daley), or his boss the President of the United States (some guy from Arkansas). Apparently the PTO has been making some changes since the Compton's Multimedia Patent embarrassment, but some encouragement from the people would be helpful. Again, even if you feel software patents should be abolished, that won't take the PTO out of the picture, and they still need to follow their procedures better.
Lastly, if you do want software patents abolished, make sure to do the above, and join and support the League for Programming Freedom. Collective effort is critical for any headway to be made here, and the LPF is the best focus for such effort out there.
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Open mind, insert foot.
1) Publish your idea. You personally have one year from that date to file for a patent. No one else can (legally) obtain one by filing after that date. If someone has filed for one before that date, or published prior to you and files within a year of that, all bets are off.
2) People keep suggesting this sort of thing, but I have to wonder if they really understand how expensive it is to maintain a patent portfolio. Defending a patent portfolio can cost millions per year. If said foundation has a patent that Microsoft wants, do you really think they're going to negotiate cross-licensing when they can just file a couple of suits, bankrupt you, and use the patented processes with impunity?
I believe there is a better idea. It's said that there is nothing new under the sun; ie, if you've thought of something there is a very high probability that you weren't the first. Use the power of open source to find the prior art. Maintain a database of it. Whenever a patent that seems ludicrous is filed, or whenever a company uses one that seems so, get in the prior art database and find out where it's been done before. I've seen several estimates that >80% of all granted patents are invalid on the grounds of prior art; it's just that most of the time, nobody's trying very hard to find it. Set the hundreds of thousands of eyes (and brains) of the open source community on the problem, and you'll find that pretty soon a piece of software will have to be special indeed to receive patent protection.
Have you heard the saying: "I could indict a ham sandwich?" The same could be said of patents. You file. The examiniers do a perfunctory (they would complain I'm being too harsh, but their comments were 90% nonsensical) search on existing patents. If the keywords match, they make you explain to them why these patents don't read on your patent. I didn't complain, because then they might assign some hardass examiner who knows something. I read piles of patents, thousands of pages of badly written sludge, and dutifully explained why none of it mattered. This goes on for several rounds.
Maybe you take a trip down to D.C. (actually the Patent Office, which you would think would be in one of those temple-like buildings on the Mall is in a non-descript office park across the river in Virginia) to explain your claims in person. Maybe this gets the patent to issue, maybe not.
There is very little critical examination regarding whether a patent should issue. So as long as your patent lawyer is good enough to kick you under the table any time you might utter the word "obviously" you will eventually get your patent.
Ah, but what if patent applications were posted on the Internet, and smart /.'ers could comment on the egregious ones? That would take a radical change in the patent process. Right now, patents in process are secret. That way, if the patent doesn't issue, the inventor can protect his invention with other means, secrecy among them.
This is only the beginning. Can you enforce the patent? Can you afford to? Is the infringer a deep pockets target that can be bullied into licensing your patent, so you can then go on to publicize that license and scare some smaller fish into paying up?
Do you have just one patent? Several? Enough that even a rich company would think twice about trying to litigate them all away? Can you afford to defend them? Is the market window going to close before litigation is complete? This is a game big companys know how to play, and except for some macroeconomic friction is the form of higher lawyer bill than would be optimal, it works.
Nota bene: Nothing about this has anything to with whether the patent should issue by any measure of sensible consideration. As long as your field is obscure enough to fly under the radar of the better examiners, you can patent that ham sandwich. A lot of garbage slips through, more than could possibly get cleaned up in litigation. So you have this ugly overhang of a lot of patent violations out there waiting to ambush worthy efforts like open source software, where litigation is absolutely the worst forum for resolving the issues. And if you put the pickles and mustard under the ham, you owe me a small per-sandwich fee, slightly more for hoagy rolls.
I wrote parts of this stuff
Lacking <sarcasm> tags,
That's not the only grind we should have. When GATT was signed, it automatically extended the life of patents from 17 years to 20 years, thus amending the constitution in unconstitutional ways. Why has this not been addressed by the supreme court???
That would make so-called 1989 software patents available in six instead of eight years.
A couple of misconceptions here. First, as others have noted, there is no Constitutional requirement that patents lapse in seventeen years. The only Constitutional mandate wrt the patent system is that there must be one. As for the other poster who questioned the treaty-vs-legislation mechanism, the point is moot since
Secondly, the life of a patent has not been extended to twenty years from seventeen. What has happened is that an additional limitation has been added to cause patents to expire twenyt years after the date of filing if that is sooner than seventeen years after the date of issuance. This not only harmonizes the USA with the rest of the world, but also prevents the "submarine patent." (A recent example was the character who filed back in the 50s for a patent on optical storage of information. His lawyers kept it tied up in the USPTO for decades while they continually updated the claims, so that when it issued recently it covered CD media!)
Disclaimer: I am not a lawyer, don't play one on TV, nor on the Net. I do however hold several patents and retain patent attorneys who keep me up to date on details like this.
Lacking <sarcasm> tags,
If a company sends you a threatening letter, publish it on your web site and then write right back. Tell them that they will never be able to recover money from you since you don't have any, but that you will fight the case till the end, without a lawyer but with massive research support by the free software community regarding prior art and obviousness. Make clear that they will lose money and goodwill if they dare to file a suit, and that they ultimately must lose.
Then spend an afternoon in the nearest law library. The law is not rocket science; lawyers are not needed.
I have personal experience that no company ever files suit against people without sufficient resources. They can do the math.
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Just for fun, we also patented something, just to see how hard it is. Basically, it is an exercise in t-crossing and i-dotting -- the patent office is completely clueless. We got a patent that probably should not have been granted because we followed the procedure.
We did both of these things in response to a lawsuit threatened by New York Institute of Technology. You see, they had patented 3D keyframe animation. And the patent looked reasonably solid, there was no way that we could get around it. They had even cited almost all of the prior art that we thought invalidated the patent...and because of that we couldn't use that against them. They had sent letters to us, to Electric Image, to Wavefront, many of the players in computer graphics at the time.
The one piece of prior art that they hadn't cited was an NYIT document. It was presented at the Siggraph conference on August 4, 1982. The patent was filed August 3, 1983. You recall from the above comment that you have one year to file, and it appeared that they had sneaked in.
But...after six months of fighting this, I realized that while the paper was presented on Tuesday -- the proceedings were available on Sunday, the 2nd. A year plus a day. And so the series of increasingly threatening letters from NYIT stopped with a thunderous silence.
We probably could have made a few million from our morph algorithm (as others later did) but I still feel that we did the right thing. thad
I love Mondays. On a Monday, anything is possible.
One more point I'd like to make regarding this. While you chose not to patent your morphing process, (admirable, btw, if it was to allow free use), a prior art database would be just as useful to those seeking to obtain a patent as it would to those fighting one. Wouldn't it be nice to know before you spend untold time and money on r&d that someone else had been there done that? About the only people it would hurt would be those who seek to patent a proven process and ride the royalty gravy train (and the number of firms in the U.S. doing this is staggering). I think we can all agree that plowing them under could only be a good thing.
As Richard Stallman says, patent reform is not enough.
Also take a look at the League for Programming Freedom and freepatents.org.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Well, the point isn't so much that they won't charge to license their patents, but that they can charge if they wanted to pursue the matter. Just because the world in general has gotten lucky once doesn't mean we should ignore the problem.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Realy simply, the Supreme Court should rule "Software is not patentable -> All binary data shall henceforth be copyrightable but not patentable"
This would make much more legal sense than the allowing software patents, at least in a "This will work cleanly" sense.
-- The act of censorship is always worse than whatever is being censored. Always.
Oh my god. They killed FreeType. Lawyer bastard scum strike again, and I didn't even notice.
Of course this doesn't stop me using FreeType since it has been released widely already, and you can't put it back in its box. What this does do is to stop me releasing any software I might have written based *around* FreeType. So it's lucky I never got around to writing my Truetype->RISC OS font converter, because I couldn't, now, distribute it.
Looking at these patents I don't know how enforcable they are, except that they are fairly obvious and are implemented in all recent font systems I know of. But it is not the legal enforcability that matters of course - just the threat of legal action is enough to kill a project. The little man cannot afford to go to court to fight a medium-sized company. And hence the law is useless.
This stinks. It cannot stand.
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That's not the only grind we should have. When GATT was signed, it automatically extended the life of patents from 17 years to 20 years, thus amending the constitution in unconstitutional ways. Why has this not been addressed by the supreme court???
That would make so-called 1989 software patents available in six instead of eight years.
Secondly, the history of personal computers goes back to 1976, while mainframe technology goes back to the forties. When are granted patents going to be invalidated for technology that was already publically available or published?? I do not think that there have been exhaustive searches for some of the things that have been patented.
Third, maybe there needs to be an open-source IP protection group, that can test the validity of granted 'algorythm' patents. Maybe some of these patents are SO specific that a slight 'adjustment' would put them out of their coverage range.
Fourth, maybe Linux needs the linux community to not use that which is patented, but invent (and publish!) new technologies that are then freely available. It would seem to me that adoption would happen readily if they were cheaper than licensing a given 'patent'. Is there such a thing s a GNU patent??
Also, if we could get every 'linux' user to stop using a given technology and boycott some companies unfriendly to open source, couldn't that have some effect? You can not let the fear of patents stop open source development.
The site is called "BitLaw" and it focuses on law and technology (US only).
Really, this wouldn't even be disobediance, but what if a large portion of people in the software industry simply printed the article, signed their names at the bottom, and snail mailed them to the USPTO once a week until the nonsense stops (if ever). If they think they're choked in paperwork now...
Alternatly, each person submits a patent application for a blatantly obvious 'invention'. They HAVE to at least look at each and every patent submission, even if it comes without the required fees (and they have to reply that you must submit those fees for consideration). Just 'forget' to enclose the check and then decide not to patent....
Increased software patent registration and enforcement are simply the cost of Open Source growth. In the past, with closed source, software patents were far less of an issue, because there was usually no way to tell how a program did something. Now that we agree the internals of software should be exposed for all to examine and improve upon, there will have to be formal ways for designers to benefit from their innovations. You can't have it both ways, i.e. open access to all source code *and* no patent protection, unless you believe that the entire concept of intellectual property is obsolete, and I think that is a stretch by all but the most extremist views.
Algorithms are not "mathematical formulas"...they are *structures* that are composed from primitives (i.e. the basic instructions of various programming languages), and are thus no different than the mechanical assemblies patentable under traditional laws. To use the popular metaphor of Open Source allowing you to "open the hood of the car" that would be "welded shut" with closed source, you can now see the engine, but that doesn't mean you have the right to build and sell an exact copy yourself. You *do*, however, have the right to look at the engine and improve its design. In the case of the example given in the paper, if you do not have the right to use patented "Save As..." methods, well, go ahead and invent a *better* way to initiate a write to disk. Thus, it seems to me that software patents could encourage innovation, rather than inhibit it.
Having said this, I do agree that the problem of *correctly* enforcing software patents is non-trivial, and will require significant effort to address. Since it all comes down to "prior art", the PTO must improve its processes so that authorities can recognize such instances efficiently.
What kind of tools are you using, e.g. programming languages, APIs, protocols, hardware? Chances are that the designers of those tools foresaw the general kind of application you're making, and those tools were designed to accommodate the sort of thing you're doing. For example, I had someone ask me about a patent on something like "automatically downloading an HTML resource using HTTP, and modifying that HTML in a specified way before sending it back to the user." Well, this is all possible to some extent because the designers of HTTP, HTML, and whatever else is involved, designed all those things to make that sort of thing easier.
When tools/frameworks/standards are designed well, the people involved dream up the most esoteric far-out situations that the tool could possibly be used for, to make sure the tool can accommodate any situation they can imagine. To have someone come along later and say "I thought of that so I own it" is kind of offensive when that person's "discovery" is just one specific implication of those people's work.
On a related tangent, old archives of newsgroups, working groups, etc. could be mined for evidence of "prior art", much more than they have been.
"Well, this is what a patent is: a legalized monopolly. A monopoly does make things more expensive for non-monopoly holders; but this is a worthwhile tradeoff in return for greater technological innovation."
I agree they used to provide a worthwhile tradeoff, but I think it needs reevaluation in the light of new business practices such as open source. The way the law is now, its basically a requirement that software using the innovation pass the license price on to the buyer. For obvious reasons, this is difficult when the software is free. If the law somehow required licensing rates proportional to revenues obtained from the invention's use the playing field would be more even. IANAL, and I don't have a solution. But it seems to me the software patent laws are indeed biased against technological innovation by the free software community.
Another way they are biased is that independent volunteer coders rarely have the means, knowledge, or inclination to apply for patents for their ideas. These ideas are no less worthy than many being patented. Unfortunately, its usually organizations with legal departments that patent things.
I can't speak about the nature of your invention of course. But I've seen patents for algorithms most anyone with a spare year could have created. This is paid labor, not genius. Frequently the invention is a lot less noteworthy than the software infrastructure the inventor used to develop it. I'd want the bar set very high on software patents - they should represent the kind of unique insight that only happens a few times a decade.
Jim
1) If I have an idea I want to protect for the public domain (i.e. to keep anyone else from patenting it), do I have to actually patent it myself, or can I just publish it somewhere, thus qualifying as "prior art" against future patent attempts?
2) To be a little more aggressive, we could establish a foundation that owns many software patents, with the provisions that
Does anyone know enough patent law to comment on either of these?