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Tridgell Recommends Reading Software Patents

timothy posted more than 4 years ago | from the you-may-read-the-article dept.

Patents 173

H4x0r Jim Duggan writes "Andrew Tridgell rejected the common fears about triple damages: 'If you've got one lot of damages for patent infringement, what would happen to the project? It's dead. If it gets three lots of damages for patent infringement, what happens to the project? It's still dead.' Tridge then explains the right way to read a patent and build a legal defense: 'That first type of defence is really the one you want, it's called: non-infringement. And that is: "we don't do that. The patent says X, we don't do X, therefore go away, sue someone else, it's not relevant for us." That's the defence you want. [...] Next one, prior art: [...] Basically the argument is: somebody else did that before. It's a very, very tricky argument to get right. Extremely tricky, and it is the most common argument bandied about in the free software community. And if you see it in the primary defence against a patent, you should cringe because it is an extremely unsafe way of doing things.' There are even some tips in the talk specifically for Slashdotters."

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There is always another patent. (2, Insightful)

Z00L00K (682162) | more than 4 years ago | (#31594598)

In the same way that there is always a bigger fish.

And what you have to fear are overly broad patents and patent trolls.

Many patents are there not for suing the ass off the competition but to protect yourself from getting attacked.

Re:There is always another patent. (4, Insightful)

rolfwind (528248) | more than 4 years ago | (#31594690)

Many patents are there not for suing the ass off the competition but to protect yourself from getting attacked.

Which only became a problem with the invention of patents in the first place and keeps getting worse.

http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm [ucla.edu]

Re:There is always another patent. (0)

Anonymous Coward | more than 4 years ago | (#31595728)

the invention of patents

You mean the imposition of patents. The notion of forcefully banishing competitors from the market has, I'm quite sure, been a wet dream for every lackluster businessman for thousands of years. There is nothing honorable, let alone interesting, about the idea.

Re:There is always another patent. (1, Troll)

gnupun (752725) | more than 4 years ago | (#31595906)

There is nothing honorable, let alone interesting, about the idea.

Really? Are you willing to share your salary with random strangers on the street even though you performed work to earn the salary and they did not? Like it or not, there nothing wrong in keeping competitors that steal (leech) your ideas out of your market. They did nothing to deserve the profit. Patents are perfectly valid instruments to enforce that people who innovate make money instead of copycats.

Re:There is always another patent. (3, Insightful)

jedidiah (1196) | more than 4 years ago | (#31596394)

You make it sound like it's trivial to copy a patent worthy idea when it really isn't.

If an idea is interesting, it will be exceedingly difficult to copy the work that's rather the point.

If you have never read the relevant patents but have managed to "copy" the relevant invention
then that should nullify the patent right then and there because what is happening now is that
the patent holder is TRYING TO STEAL THE PRODUCT OF YOUR INTELLECT.

This the problem that is glossed over by the corporate toadies.

BS patents steal from everyone else. They steal from everyone else the ability to benefit from one's own labors and one's own intellect.

Patents are intentionally obtuse for "legal" reasons. Dealing with them for the most part is
more trouble than they are worth even if you only consider them "useful documentation" rather
than something to create defenses for.

Re:There is always another patent. (1)

gnupun (752725) | more than 4 years ago | (#31597198)

You make it sound like it's trivial to copy a patent worthy idea when it really isn't.

BS argument: patent worthy idea I: 1. Number of people that can convert patent I to X language code: millions. Rarer assets are automatically worth more than commonly available skills.

If an idea is interesting, it will be exceedingly difficult to copy the work that's rather the point.

LOL. The whole point of a patent is to provide a HOW-TO guide to create the final product after the patent expires -- exceedingly difficult patents won't be awarded in the first place. Patents are kinda like open source -- except the creator gets paid for a few years, unlike slaving away for free like OSS.

If you have never read the relevant patents but have managed to "copy" the relevant invention then that should nullify the patent right then and there because what is happening now is that the patent holder is TRYING TO STEAL THE PRODUCT OF YOUR INTELLECT.

There is no way to prove the latecomer did not intentionally or accidentally read the original patent. Besides, patents are first-come first-serve, just like business, real estate etc. You snooze, you looze.

Re:There is always another patent. (0)

Anonymous Coward | more than 4 years ago | (#31597386)

The notion of winning a special right to employ coercion as your business model, simply because you appealed to some central authority minutes before your competitor, speaks a lot more about how broken and unjust the system is than how righteous it is.

Re:There is always another patent. (5, Insightful)

ultranova (717540) | more than 4 years ago | (#31594696)

Many patents are there not for suing the ass off the competition but to protect yourself from getting attacked.

And since free software competing with yours is definitely an attack, why not attack? The very idea of patents, after all, is to encourage people to share their inventions by protecting them from competition in turn. That failed miserably, but can't be helped anymore, there's too many financial interests milking the current system for all its worth.

Anyway, the real defence is moving to a (software patent) free country.

Re:There is always another patent. (5, Informative)

phantomfive (622387) | more than 4 years ago | (#31594786)

And since free software competing with yours is definitely an attack, why not attack?

He answers that in the article, he says we need to make the OSS community the hardest, meanest thing possible to attack with a patent, and he explains a way to do it:

Every time an open source project gets sued, we need to find a workaround for the patent, and publicize it loudly, so anyone can use that workaround. The great thing is, after that, the suer would no longer be able to collect royalties from anyone for that patent, because they will just use the workaround. Suing the open source community will be equivalent to losing all potential revenue from your patent. No one will want to do it.

Re:There is always another patent. (4, Insightful)

shutdown -p now (807394) | more than 4 years ago | (#31594874)

Every time an open source project gets sued, we need to find a workaround for the patent, and publicize it loudly, so anyone can use that workaround. The great thing is, after that, the suer would no longer be able to collect royalties from anyone for that patent, because they will just use the workaround.

Yeah, because that worked out so nice and easy with PNG vs GIF, didn't it?

Re:There is always another patent. (0)

Anonymous Coward | more than 4 years ago | (#31595258)

Well yeah it did? Most web graphics that are not photographs seem to be PNG these days.

Re:There is always another patent. (0)

Anonymous Coward | more than 4 years ago | (#31596026)

But PNG didn't become popular until the patent on GIF expired. That is mostly because Internet Explorer didn't properly support PNG until the GIF patent expired. The trouble with the grandparent's advice is that it is not in everyone's interest to operate without patents.

Re:There is always another patent. (2, Insightful)

gbjbaanb (229885) | more than 4 years ago | (#31596312)

That is mostly because Internet Explorer didn't properly support PNG until the GIF patent expired.

which is not so much a problem with patents, or workarounds, but with monopoly power of a product - in this case IE6.

Fortunately, this would not be an issue anymore as IE seems to be headed to the folder marked "niche browser", but it is still an issue with other monopolistic products - eg if there was something that was patented but used by Windows that only the open source community wanted to replace, but MS couldn't give a rats ass about, that product would continue to resist change. FAT32 for example.

He meant find a legal workaround (1)

s-gen (890660) | more than 4 years ago | (#31597298)

By "workaround" he didn't mean a technical solution where you implement something different to avoid infringment. He meant a legal solution where you look for an argument that says you're not infgringing.

Re:There is always another patent. (1)

LaminatorX (410794) | more than 4 years ago | (#31596698)

That's a workable solution to proprietary resources under active copyright, since copyright protects the expression of the idea, not the idea itself.

Patents are more problematic because they have become so broad in their scope can not only cover a specific method for implementation of an idea, but the idea itself. In such cases, even a clean-room reverse-engineered re-implementation of the idea may still be vulnerable.

Re:There is always another patent. (0, Troll)

L4t3r4lu5 (1216702) | more than 4 years ago | (#31595152)

Anyway, the real defence is moving to a (software patent) free country.

I hear Somaiia has quite a lackadasical Software Patent system at the moment. As long as you're willing to harbour a few pirates (no inverted commas here!) you're pretty much ok to go!

Enjoy your new haven :)

Re:There is always another patent. (2, Insightful)

Improv (2467) | more than 4 years ago | (#31594730)

It would be great then to come to an understanding with companies regarding patents that if they ever attempt to enforce (or transfer their patent to another to enforce) a single patent, we will take notice and consider them hostile to our interests. Defensive patents, sure, we can live with that.

I think some earlier drafts of the GPL3 attempted to have this kind of reasoning - I think those clauses were removed.

Here's a better idea (5, Insightful)

Anonymous Coward | more than 4 years ago | (#31594614)

When I'm writing code, I don't have to worry about patent infringement, because the stuff isn't patentable. That way I can write code just like you write anything else; without looking over your shoulder.

Re:Here's a better idea (2, Insightful)

aussie_a (778472) | more than 4 years ago | (#31594664)

Here's an idea. When I'm trying to feed my family, I don't have to worry about money because the stuff can't be owned.

As nice as the world might be if food was free and software had no patents, that isn't the world we live in. And no amount of wishful thinking on slashdot is going to change it. If you want to get rid of software patents, start saving up to buy a politician. Or find one that can't be bought. But I'd say option 1 is more realistic.

Re:Here's a better idea (1, Insightful)

Anonymous Coward | more than 4 years ago | (#31594684)

"... software had no patents, that isn't the world we live in."

That is the world we live in unless you believe the United States is the world and every other land mass is just an appendage.

Re:Here's a better idea (5, Insightful)

Improv (2467) | more than 4 years ago | (#31594740)

In the meantime, we can keep spreading the ideas of IP abolitionism, encouraging people to ignore it when they can get away with it and to push for legal change. A movement is important when fighting such established interests - buying or convincing one politician won't really do (and isn't really doable on this issue)

Re:Here's a better idea (0, Offtopic)

dcollins (135727) | more than 4 years ago | (#31594760)

"In the meantime, we can keep spreading the ideas of IP abolitionism, encouraging people to ignore it when they can get away with it and to push for legal change. A movement is important when fighting such established interests - buying or convincing one politician won't really do (and isn't really doable on this issue)"

Mod this up!

Re:Here's a better idea (0, Flamebait)

aussie_a (778472) | more than 4 years ago | (#31594918)

encouraging people to ignore it when they can get away with it

You're modded insightful and yet you're post is completely identical to those of anonymous cowards who pirate music.

If you believe in abolishing intellectual property so much grow some balls and stand up for yourself. Ghandi went to jail for his beliefs. By the sounds of it the most you're willing to do is anonymously preach to the choir.

Re:Here's a better idea (2, Informative)

Anonymous Coward | more than 4 years ago | (#31595054)

People don't in general have the duty to go to jail for their beliefs. People do have the duty however to do what they can to realise those ideas they consider to be good. If you think going to jail is going to fix anything, you're free to do so, but I wouldn't consider it a very effective form of activism under the current circumstances.
Posting AC because it seemed appropriate.

Re:Here's a better idea (1)

icebraining (1313345) | more than 4 years ago | (#31595112)

Are you posting from jail? Or do you believe that everything's fine with the world?

Civil disobedience was exactly what Gandhi preached. When the salt tax was imposed by the British, he went and made salt without paying the tax [wikipedia.org] . Exactly what GP is defending.

Re:Here's a better idea (2, Insightful)

aussie_a (778472) | more than 4 years ago | (#31595784)

he went and made salt without paying the tax

And did so publicly. He didn't try to hide his illegal activities as that would have made him no better than a a common thief.

Infringing on people's IP and hoping you don't get caught is not civil disobediance. Its simply breaking the law because you feel like it.

After all, Ghandi said himself

When any person in authority seeks to arrest a civil resister, he will voluntarily submit to the arrest, and he will not resist the attachment or removal of his own property, if any, when it is sought to be confiscated by authorities.

I find it offensive when people try to cloak their criminal activities as civil disobedience. Of course, calling someone out for it is going to get me modded down here at slashdot, where people too afraid to take on authority figures like to fantasise about doing it.

Re:Here's a better idea (3, Interesting)

Improv (2467) | more than 4 years ago | (#31596578)

I'm glad you wern't around at the time of the underground railroad.

"Freeing someone's slaves isn't civil disobedience, it's theft. If you really wanted to end slavery, you'd earn money to buy those slaves to set them free"

I am not trying to be Gandhi, I am trying to win. Encouraging a culture where IP claims are disrespected and seen as legacy is the best tactic we have to begin to prepare society to abolish it. I don't in fact particularly care to take on authority figures - it's not that I'm afraid of it, it's that it would not be an effective confrontation.

Re:Here's a better idea (1)

NekSnappa (803141) | more than 4 years ago | (#31597254)

"First they ignore you, then they ridicule you, then they fight you, then you win."

--Mahatma Gandhi

Re:Here's a better idea (2, Informative)

anshulajain (1359933) | more than 4 years ago | (#31595830)

Its Gandhi and not Ghandi

Re:Here's a better idea (0)

Anonymous Coward | more than 4 years ago | (#31595512)

Wait what? We have already lost that battle. You are using IP in your post. That means that the battle is already lost. You should know seeing your low uid. When slash started there was no mention of Imaginary Property (I refuse to use the newspeak/weasel words Intellectual Property) at all. After a few years people started to lump copyrights, patents and trademarks together under the moniker Imaginary Property, and people like me were warning that the mere acceptance of that term in regular conversation would mean the death of innovation and cooperation, and the beginning down the path to thought-crime.

So, if you now finally want to join us in our battle, please refrain from using the abbreviation IP, only use it in its full glory and call it like it is: Imaginary Property.

Re:Here's a better idea (1)

Improv (2467) | more than 4 years ago | (#31596606)

Cute, but I'm not an ostrich. There are many things in the world that I don't like, but being *that* sensitive to framing is a pain.

Re:Here's a better idea (0)

Anonymous Coward | more than 4 years ago | (#31594750)

I think you have missed out on the whole Richard Stallman thing about how ideas like software, in his view, ought not to be patented.

Perhaps I will be modded down as troll since while I agree with Stallman, I also accept that they won't go away any time soon.

To be honest I think it is a divide between "workers" and "gentlemen". "Workers" see programming merely as a thing to be done and be compensated (read: paid money) for while "gentlemen" appreciate it for its own sake. And I think the latter group in principle wouldn't care if software is FOSS or not since software exists independently of money or job or other things like that. However, FOSS licensing is the best way within current US and Western legal systems to ensure that software can be appreciated by all people for its own sake.

There are many issues in all aspects of life which boil down to arguments about labour and money.

Re:Here's a better idea (4, Informative)

Cochonou (576531) | more than 4 years ago | (#31594830)

There are countries in which there are no software patents [google.fr] . But the copyright law still applies.

Re:Here's a better idea (0)

Anonymous Coward | more than 4 years ago | (#31597146)

nobody has a problem with software copyright. using someone else's code is one thing. People patenting stuff like "Image button to be clicked to add an item to a shopping cart" is the real problem.

Once that patent is accepted, you can't even write your own code to do that job. It's like patenting "automotive driver side window" or "air conditioning unit".

Re:Here's a better idea (4, Insightful)

renoX (11677) | more than 4 years ago | (#31594910)

> As nice as the world might be if food was free and software had no patents, that isn't the world we live in.

Remember that software patents are basically non-existant in Europe..
Growing food is labor intensive, so it cannot be truly free(*), software patents are only a self-inflicted wound.

*: unless you can convince people to give their work for free, _someone_ has to pay for the tools and the labor used to grow food.

Re:Here's a better idea (2, Informative)

jimicus (737525) | more than 4 years ago | (#31595038)

> As nice as the world might be if food was free and software had no patents, that isn't the world we live in.

Remember that software patents are basically non-existant in Europe..

Not strictly true. Certainly the UK patent office (and I believe some others) have been merrily awarding software patents for some time. Though I don't know of any infringement lawsuits.

Re:Here's a better idea (1)

TheTurtlesMoves (1442727) | more than 4 years ago | (#31595320)

In the EU and the UK software patents are awarded. However no lawyer will claim that you can enforce them. However its also true that the same lawyers will not claim you are safe from international software patents. Well not quite.

However many of the offending patents are US patents. They are not enforceable here anyway.

Re:Here's a better idea (1)

jimicus (737525) | more than 4 years ago | (#31595466)

However many of the offending patents are US patents. They are not enforceable here anyway.

But they are enforceable if you want to sell a product based on them in the US.

Re:Here's a better idea (2, Informative)

TheTurtlesMoves (1442727) | more than 4 years ago | (#31595770)

Any EU patent is *not* enforceable in the US any more than a US patent is enforceable in the EU. You need an international or world patent to do that, which IIRC requires that you get the patent in at least 3 "member" countries as well.

Re:Here's a better idea (0)

Anonymous Coward | more than 4 years ago | (#31595972)

There ain't no such thing as a "world patent". What you can do is apply for the patent in multiple countries at once, which is quite different. You still have to pay any legal fees in each country, and the patent is still only valid in each country that grants it.

Try reading Wikipedia: http://en.wikipedia.org/wiki/Patent
Or, even better, the WIPO website: http://www.wipo.int/patentscope/en/patents_faq.html#worldwide_patent

How can a patent be obtained worldwide?
At present, no "world patents" or "international patents" exist.

In general, an application for a patent must be filed, and a patent shall be granted and enforced, in each country in which you seek patent protection for your invention, in accordance with the law of that country. In some regions, a regional patent office, for example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts regional patent applications, or grants patents, which have the same effect as applications filed, or patents granted, in the member States of that region.

Further, any resident or national of a Contracting State of the Patent Cooperation Treaty (PCT) may file an international application under the PCT. A single international patent application has the same effect as national applications filed in each designated Contracting State of the PCT. However, under the PCT system, in order to obtain patent protection in the designated States, a patent shall be granted by each designated State to the claimed invention contained in the international application. Further information concerning the PCT is available.

Procedural and substantive requirements for the grant of patents as well as the amount of fees required are different from one country/region to the other. It is therefore recommend that you consult a practicing lawyer who is specialized in intellectual property or the intellectual property offices of those countries in which you are interested to get protection. A list of URLs and a directory of national and regional intellectual property offices are available.

Re:Here's a better idea (1)

TheTurtlesMoves (1442727) | more than 4 years ago | (#31595780)

Sorry post to fast for my own good. I didn't read your comment properly. Yes of course the are enforceable when selling in the US.

Re:Here's a better idea (0)

Anonymous Coward | more than 4 years ago | (#31596302)

Wannabe OSS developers of slashdot: Writing software is labour intensive, it cannot truly be free. I enjoy getting paid for my days work, I do not sit in my chair and spin. In fact I'm here browsing slashdot BEFORE work.

Re:Here's a better idea (1)

jedidiah (1196) | more than 4 years ago | (#31596452)

Except your labor is a ONE TIME THING.

It is not something that should grant you payments in perpetuity.

In actual practice, it rarely does.

Some "captain of industry" scoops it up, throws a few pennies at you and reaps all of those perpetual benefits himself.

So you are the ABSOLUTE LAST person that should be calling anyone else a "wannabe".

Re:Here's a better idea (0)

Anonymous Coward | more than 4 years ago | (#31596348)

*: unless you can convince people to give their work for free, _someone_ has to pay for the tools and the labor used to grow food.

*: unless you can convince people to give their work for free, _someone_ has to pay for the tools and the labor used to write software.

Re:Here's a better idea (1)

radish (98371) | more than 4 years ago | (#31596878)

Growing food is labor intensive, so it cannot be truly free(*), software patents are only a self-inflicted wound.

*: unless you can convince people to give their work for free, _someone_ has to pay for the tools and the labor used to grow food

Huh? Last time I checked writing software was pretty labour intensive too. And requires someone to pay for that labour and the tools needed (unless you can convince people to give their work for free). There are many good arguments against software patents, this doesn't seem to be one of them.

Re:Here's a better idea (1)

clone53421 (1310749) | more than 4 years ago | (#31597066)

No, you missed the analogy.

To “duplicate” food, you cultivate and fertilize some soil, put the food in the ground, water it, wait, cultivate it and fertilize it some more, spray it with pesticides to keep bugs and animals from eating it, wait some more, water it, spray it, wait, water it, harvest it, process it, and package it.

To “duplicate” software, you click the “burn” button.

Re:Here's a better idea (1)

sgtrock (191182) | more than 4 years ago | (#31596870)

Here's another idea: Let's recognize that software is the _only_ form of creative expression covered by patents _and_ copyrights. Let's further recognize that this conflation was and is a HUGE mistake. Let's choose one or the other and move on.

I suggest copyright is the appropriate protection to rely upon as the process of software development is much closer to writing a screenplay than it is to inventing a new widget. Care to debate my reasoning? ;)

Now, as to buying a politician or four, I'm willing to think about it if I ever win the lottery. Failing that, I'll keep voting for whichever candidate(s) in my country/state/county/city elections that seem to have a clue, regardless of affiliation. (Where's Gus Hall [wikipedia.org] when you need him?)

Re:Here's a better idea (1)

NekSnappa (803141) | more than 4 years ago | (#31597528)

Let's recognize that software is the _only_ form of creative expression covered by patents _and_ copyrights.

Really? Software is more a form of creative expression that designing a unique and elegant physical mechanism to perform a task?

Writing code that manipulates bits in a black box is no more creative than designing a set of cogs and wheels inside a metal box.

Re:Here's a better idea (1)

LWATCDR (28044) | more than 4 years ago | (#31597020)

"Here's an idea. When I'm trying to feed my family, I don't have to worry about money because the stuff can't be owned."
That is not the point and frankly just silly.
I like FOSS and have written some. I make my living from Closed Source software and I have a hardware patent. I see a place for both.
But what we are talking about here is patents. The idea that you can patent software just insane.
You can patent a book? Or a Song? Or a set of house plans? Or a set of Homebuilt aircraft plans? Or a movie? Or a story?
No all of those are protected by copyright law as should software. It is just that simple.
It should be impossible for me to sit down and right a piece of software that I can get sued for. The only illegal that should be possible is if you life code from a program in violation of their license.
There is a place for FOSS, Closed Source, Patents, and Copyrights. There is no place for Software Patents. What is really annoying is that my own company has filed for and gotten two just to protect the company from other people trying to patent these features we created!
Get ride of them all and the DMCA including ours. If no one has them we don't need them.

Re:Here's a better idea (1)

Theaetetus (590071) | more than 4 years ago | (#31597576)

You can patent a book? Or a Song? Or a set of house plans? Or a set of Homebuilt aircraft plans? Or a movie? Or a story? No all of those are protected by copyright law as should software. It is just that simple.

Your comparison to books, plans, stories, etc. misses the point a bit - those are tangible embodiments of an idea, which are protected by copyright. Patents protect the idea. For example, that homebuilt aircraft may incorporate some new inventions... just because you can't patent the blueprints doesn't mean that you can't patent a new type of aircraft engine.

Re:Here's a better idea (1)

clone53421 (1310749) | more than 4 years ago | (#31597174)

Terrible analogy.

Better analogy:

Here’s an idea. When I’m trying to plant my field, I don’t have to worry about GMO patents because the stuff isn’t patentable.

Just because I don’t think software algorithms should be patentable doesn’t mean that somebody should be able to go into Micro Center and walk out with a rack of software CDs without paying for them. And just because I don’t think it should be legal for Monsanto [wikipedia.org] to own a patent on a particular variety of cotton or soy doesn’t mean you should be able to go into Price Chopper and walk out with a cart full of free food.

Re:Here's a better idea (2, Interesting)

Anonymous Coward | more than 4 years ago | (#31594784)

When I'm writing code, I don't have to worry about patent infringement, because the stuff isn't patentable

I don't think software patents need to go away altogether, it just needs a bit of reform. Software engineering is a very complex, confusing, and quickly growing field. Without patents, the best algorithms are going to be kept secret and that helps no one Copyright protection doesn't cut it if I can rewrite your concept in language foo and claim it as my own. Whether you're selling something for $1,000,000 or $0 dollars, the same rules apply; legally use someone else's patented ideas or come up with your own. If the free software bunch has to develop new unpatented methods to accomplish their goals, well the system worked, bravo.

That way I can write code just like you write anything else; without looking over your shoulder.

It sounds like you want complete freedom to give away anything you want for any price. Why shouldn't it be protected so a market can form? Our patent system needs to be less burdensome, not nonexistent.

Re:Here's a better idea (1)

rollingcalf (605357) | more than 4 years ago | (#31595654)

Sorry, dude. Perhaps there are some 0.01% of software patents that are truly worthy of patent protection. But the other 99.99% of unworthy software patents do far more damage than the tiny set of brilliant useful software patents, so it's better overall to just get rid of all software patents.

I don't trust politicians to be able to reform the patent system to raise the threshold for innovation so that only the worthy 0.01% (or whatever) would be patented. And even if they did, I don't trust the USPTO and politicians to keep things that restrictive, with all the corporate lobbying that goes on (which has been allowed to increase thanks to the recent Supreme Court ruling). It's a lot safer to just get rid of all software patents forever.

Re:Here's a better idea (1)

HungryHobo (1314109) | more than 4 years ago | (#31596354)

the best algorithms are *already* kept secret.
Or as secret as they can be given that there's hordes of people with talents with debuggers.

a distressing number of software patents completely fail to contain any source code or even decent pseudocode.

I can imagine rare situations where a patent on software might be justified but as it stands there's no requirement that source code be provided.
Instead they patent the general idea and use vague flowcharts instead of explicit code.

It's possible to innovate your way around a novel break design.
It's impossible to innovate your way around a box in a spreadsheet reading "slows car down"

plus there's a load of other stuff about how patents work well for centralised industries dominated by large companies(the legal teams can keep up with all recent patents) but utterly terrible for a decentralised industry where trying to make useful things becomes like playing Russian roulette since no one person can keep up with all the recent patents and shouldn't try.

Re:Here's a better idea (0)

Anonymous Coward | more than 4 years ago | (#31597440)

In an ideal world, you could just write code yourself and that would be it. Just use basic computer algorithms like binary trees, linked lists, queues, etc. You know, the things that are given and have been around a LONG time before the internet.

Oh yea, don't forget hash tables. And you'll probably want to interact with the internet somehow.

Oh, but you can't. That's right, you're risking a lawsuit if you do the above. BDE/Altnet has a patent on "the use of hash tables in relation to the internet", as of 1996. You know, because the hash table was being used back in the early 70s and all, they MUST have invented it.

And yes, I was on the receiving end of this and it's exactly what the problem is. Basic code, given run-of-the-mill algorithms, and you can't even do it without risking a lawsuit.

so, no, you can't just use your brain and write your own code. This is exactly where the system has been abused and stifles new work.

Stupid System (2, Interesting)

Anonymous Coward | more than 4 years ago | (#31594636)

Why is the legal system so fucked up that it's easier to win with "We don't do X" instead of "X has been done before" when it's extremely obvious that X has been done before?

Re:Stupid System (1)

91degrees (207121) | more than 4 years ago | (#31594658)

Most of the time I see this argument, X has been done before in a completely different way, so doesn't have any bearing on the patent.

Re:Stupid System (4, Insightful)

Anonymous Coward | more than 4 years ago | (#31594694)

Because it is as close as anyone is going to get as far as logical watertightness goes. Let P be "You are using a patented idea" and Q be "It's been done before". Enforcing a patent requires P.

Patent owner: "P is true of you." (Initial threat)
You: In fact Not-P is true of us.
Patent owner: OK, Not-P so we can't enforce patent.

vs

Patent owner: "P is true of you."
You: P is true but Q is true also. (You try to stop legal wrangling with Q.)
Patent owner: OK, P so we can try to enforce patent, regardless of Q. We'll try to show Not-Q.

Re:Stupid System (0)

Anonymous Coward | more than 4 years ago | (#31595912)

The area covered by P is so confusing, general, or subjective that you are in court for five years trying to prove that you aren't in the little circle.

Re:Stupid System (1)

31415926535897 (702314) | more than 4 years ago | (#31597236)

In criminal defense, you can use multiple strategies to try to show innocence, even if those arguments are not mutually exclusive:

For example, if you were trying to defend yourself against a murder charge, I believe you can argue the following:
1. I wasn't even there
2. Even if I was there, I wasn't the actual person to killed him
3. Even if I did kill him, it was an accident

If any one of those holds, you're a free man, but logically you can't argue all three (from a non-legal perspective). In the court room, however, you're free to make these arguments (of course you have to weigh this against the intelligence of the jury, but we've all heard who comprises a jury).

I keep hearing things that seem to exclude this option from a civil suit. Why is that? What can't you argue:

1. We are not infringing (~P)
2. Even if we were infringing, there is prior art, so your patent is invalid (Q)

And in this case, ~P ^ Q is not even a logical contradiction.

You've got to love the law.

Re:Stupid System (1)

LaminatorX (410794) | more than 4 years ago | (#31597462)

Shoot, you got my wheels turning...

Definitions:

  • A=Activity
  • K=Knows that P might reasonably apply to A
  • O=P is to obvious to be valid.
  • B=P is to broad to be valid.
  • E=Earlier prior art invalidates P
  • P=Valid Patent: Courts assume True if has been issued going forward, but can be negated if at least one O, B, or E successfully argued before court.
  • I(A)=Infringement: True if (A infringes on P)
  • Li=Liable for innovent infringement:True if (P & I(A) & !K)
  • Lw=Liable for willful infringement: True if (P & I(A) & K)

Plaintiff asserts:

  • P
  • I(A)
  • If K then Lw, else Li

Defenses:
Either...

  • !I(A) therefore !or(Li,Lw)
  • # Article suggests K may make it possible to proactively engineer A such that this is the case.
  • # Easiest to prove if dominion of P is clear and concise, but many patents are not so.

Or...

  • or(O,B,E), therefore !P
  • !P therefore !or(Li,Lw)
  • # More difficult to prove, as the court must assume !or(O,B,E) based on P having been granted in the first place.

Complicated System (1)

Theaetetus (590071) | more than 4 years ago | (#31597628)

Why is the legal system so fucked up that it's easier to win with "We don't do X" instead of "X has been done before" when it's extremely obvious that X has been done before?

Because "we don't do X" is a very easy, black and white conclusion. Whether something is obvious or not is a very difficult analysis, requiring examining multiple factors, the state of the art at the time of invention, the ease of combining different prior art references without undue experimentation, how skilled the average person in the profession is, etc. Compare it to other areas in the legal system - it's much easier to beat a murder rap if the victim is still alive, than to try to show that your questionable alibi is more persuasive than the questionable witness testimony.

References to Slashdot (0)

Anonymous Coward | more than 4 years ago | (#31594646)

are along the lines of "Don't be casual and informal and creative with logic like Slashdot". He mentions Slashdot in the context of reading the abstract and not reading the actual thing, much like this very thread.

I've heard that defense before... (0, Redundant)

Guido del Confuso (80037) | more than 4 years ago | (#31594704)

"we don't do that. The patent says X, we don't do X, therefore go away, sue someone else, it's not relevant for us."

"Look... me and the McDonald's people got this little misunderstanding. See, they're McDonald's... I'm McDowell's. They got the Golden Arches, mine is the Golden Arcs. They got the Big Mac, I got the Big Mick. We both got two all-beef patties, special sauce, lettuce, cheese, pickles and onions, but their buns have sesame seeds. My buns have no seeds."

Re:I've heard that defense before... (2, Informative)

Craigj0 (10745) | more than 4 years ago | (#31594738)

Trademarks are very different from Patents.
What you describe is a Trademark infringement.

Re:I've heard that defense before... (0, Offtopic)

norpy (1277318) | more than 4 years ago | (#31594880)

woooosh [imdb.com]

Hidden costs (5, Insightful)

pablodiazgutierrez (756813) | more than 4 years ago | (#31594710)

The cost of searching for patents whenever you're doing something, anything, really, is a huge burden on any R&D department. By forbidding employees to look at patents, companies make then focus on the important stuff: making things.

Re:Hidden costs (3, Insightful)

phantomfive (622387) | more than 4 years ago | (#31594770)

I don't think that's what he meant, he didn't say we should spend our spare time reading through patent applications, he was saying we should know how to read them, and not be afraid of reading them if the need arises. He also suggested a perfect open source defense that would scare even patent trolls away from suing open source projects, and that is to come up with a workaround. After that, the patent will be useless, and all the people licensing that patent won't want to pay anymore, they will just use the workaround. Because the open source community is willing and able to find a workaround for any patent, the trolls will be afraid to attack the community.

But you can't really find a workaround if you can't understand the patent, right? So he goes through and explains how to read the patent. He carefully explains that most people on Slashdot don't know how to read a patent, and explains the right way to do it. My wish is that every mod reads the article and then mods down those commenters in stories that don't have a clue how to read patents. That would raise the level of discussion here. But it probably won't happen (sigh).

Re:Hidden costs (1)

shentino (1139071) | more than 4 years ago | (#31596134)

Reading patents is a good idea.

Since unlike with copyright, originality is not a defense to a patent infringement claim.

Re:Hidden costs (1)

shaper (88544) | more than 4 years ago | (#31597604)

Reading patents is a very bad idea. It opens you up to willful infringement and treble damages.

Re:Hidden costs (0)

Anonymous Coward | more than 4 years ago | (#31596166)

I'll bite. How do you work around the Apple multi-touch patents?

Re:Hidden costs (4, Interesting)

radtea (464814) | more than 4 years ago | (#31596626)

How do you work around the Apple multi-touch patents?

Start by being specific about which patents you mean. "The Apple multi-touch patents" means nothing. Apple has a great many patents, 28 of which contain the words "multi-touch" in the text. Here's a likely candidate, #7656394, "User interface gestures".

All five independent claims refer to "proximity images", so the obvious work-around for this patent would be to begin with a system that does not use an image (a regular, contiguous array of pixels in two or more dimensions) as the primary data structure.

There's more to it than that, but the basic process is the same: be specific as to what patent(s) you are concerned with; read the CLAIMS (not the abstract) carefully and then the supporting material to ensure you understand the terms of art being used.

This patent doesn't actually define "image", but it is clear from context, and equally clear from common usage that a data structure that contains only a list of (mostly non-contiguous) points of contact is not an "image".

Re:Hidden costs (1)

Rydia (556444) | more than 4 years ago | (#31596996)

I wish I had mod points for this post. Too many on slashdot rage against the system without actually knowing the first thing about it, just vaguely that there are patents and they describe things in some fashion and they are bad.

Risk of large costs (2, Interesting)

AliasMarlowe (1042386) | more than 4 years ago | (#31595062)

He made some assertions whose validity is questionable for small companies, and which are generally false for larger companies with deep pockets.

'If you've got one lot of damages for patent infringement, what would happen to the project? It's dead.

Not necessarily, since the product may already be released, and the project to create it may be already completed. The damages award is typically made after lengthy legal proceedings, and it's not likely that the development project is still active. Those involved have probably moved on to other projects, been promoted, or changed employer. Paying tens or hundreds of millions in damages is not fatal to large companies, but the risk of such a cost is definitely a risk to be minimized.

If it gets three lots of damages for patent infringement, what happens to the project? It's still dead.

Not necessarily, if the product has already been released, and the project to create it has already been completed. But the court's interpretation of a patent is often baffling to an engineer, who cannot therefore assess whether a risk of infringement really exists. However, by being aware of the patent, the potential cost of an infringement is tripled. This is why large corporations do not encourage their developers to do exhaustive patent searches.

Re:Hidden costs (1)

mcgrew (92797) | more than 4 years ago | (#31596334)

Patent searches may not be cost-effectife; this is second hand info so of course be wrong (sometimes I'm wrong with 1st hand info), but a fellow I knew several years ago (actually my ex-wife's brother in law) worked at a place where they manufactured mechanical gizmos. His boss would bring a competetitor's gizmo and ask "can you make one of these?" Once he asked his boss "can't we get in trouble for violating their patent?"

The answer was "that's why we have lawyers on the payroll."

He said that often they could get around the patent by (for instance) using brass instead of copper. This sort of thing would be easier with software.

But IMO patents aren't such a problem; they only last twenty years. I know that's a lifetime for someone in college, but you would be amazed how fast twenty years goes by. Someone mentioned GIF vs PNG earlier, the patent on GIF is almost over.

A bigger problem is copyrights. If copyrights only lasted as long as patents, Windows 95, Duke Nukem, and Wolfenstein would be free in 2015. If patents lasted as long as copyrights, technological progress would come to a standstill, and I posit that creative arts are being greatly harmed by the excessive copyright lengths.

We need obviousness reinterpreted for sw patents (2, Insightful)

presidenteloco (659168) | more than 4 years ago | (#31594794)

I think that the best overall defense is if someone can take a case all the way to the supreme court, and argue that the threshold for obviousness
is way out of whack in the granting of software and business process patents.

The goal should be to get a test mandated by the supreme court along the lines of: If three out of four average 3rd year comp sci students
could design and code it up in a month, having heard only the requirements and not the design, then it's f***ing obvious to a competent practitioner
in the field, and should be dismissed.

Who knows. There may actually be algorithms clever enough to deserve patent protection for 5 years or so. But right now those would probably be
1 out of 100 of the patents granted, so the whole system is in total disrepute and it is the duty of a responsible practitioner in the field, as a protest,
to ignore and not view and thus not heed any USPTO software or business process patents, until they entirely revamp the standards and
throw out all patents granted under the existing broken standards.

Re:We need obviousness reinterpreted for sw patent (1)

rodgerd (402) | more than 4 years ago | (#31594898)

Yeah, taking it all the way to the Supremes worked really well in killing off infinite copyright extension, didn't it?

Re:We need obviousness reinterpreted for sw patent (1)

kbg (241421) | more than 4 years ago | (#31595522)

No, there are no algorithms clever enough to deserve patent protection. What is an algorithm in a computer? It is just math by another name. Software is made up of mathematical principles, math is not patentable, and therefore software shouldn't be, end of story.

Widen and shortern (1)

zlel (736107) | more than 4 years ago | (#31594806)

Can we just allow companies to patent everything they want and let them be effective for like only 5 years so we can all get on with life? Innovators should not be rewarded for how "clever" they are, but rather compensated for how much it costs to do R&D. Patent duration should depend on the costs associated with innovation in each industry.

I choose to publish my "inventions" at Usenet news (1)

colordev (1764040) | more than 4 years ago | (#31594824)

Latest was on 20th juli 2009 and it started like this

Dear all reading professional(;as described in patent regulations)

I would like you to remember reading this text as prior art, when someone will try to patent a similar method or a device arrangement, that is using the techniques shown below.

TITLE: Method and device arrangement for creating audio visual designs

now unPatentable claims
1) A method that is using an evolution based approach for improving or creating audio and / or visual designs k n o w n for it utilizing a computer software that generates a set of audio and or visual designs for the user of the system so that the user can select best design or designs according to his/her liking the properties present or absent among the presented set of designs.

2) A device arrangement and a method according to claim 1 ... bla bla bla

(this Patent Buster: was first published on 19-7-2009 8:20 pm GMT at http://www.colordev.com/ [colordev.com] )

I think more independent software inventors should do the same i.e publish the patentable details, as it will create submarine patent-eliminators against the patent trolls. Ultimately no one will know what really has been published, or if any software patent will hold in court. For example if I 5 years a from now will read about a patent troll suing someone and I know I have the prior art, well I'll be happy to be the expert witness invalidating the patent.

Re:I choose to publish my "inventions" at Usenet n (0)

Anonymous Coward | more than 4 years ago | (#31594848)

Are there not websites which accept submissions written to the standards required of a patent, for the very purpose of establishing prior art?

Re:I choose to publish my "inventions" at Usenet n (1)

TheTurtlesMoves (1442727) | more than 4 years ago | (#31595358)

And they cost about the same as filing a patent.

Re:I choose to publish my "inventions" at Usenet n (3, Interesting)

jimicus (737525) | more than 4 years ago | (#31595068)

You could have at least read the summary:

Next one, prior art: [...] Basically the argument is: somebody else did that before. It's a very, very tricky argument to get right. Extremely tricky, and it is the most common argument bandied about in the free software community. And if you see it in the primary defence against a patent, you should cringe because it is an extremely unsafe way of doing things.'

The reason why prior art is difficult to get right is explained in TFA: a patent consists of a number of (likely very long and complicated) interdependent claims which are likely to be interpreted quite narrowly. In order to work, a prior art defence has to exist for each and every one of those claims in the same interpretation as that intended when the patent was granted. So you have to go through the entire patent from beginning to end, look at each claim and think "Is there prior art for this? Is the prior art exactly the same idea or is it just roughly the same sort of thing? If the latter, that's a Very Bad Thing for the defence".

However, it's quite common for the patent to hinge on a handful of claims and if you can prove that you don't do just one of the independent claims, you're free.

Re:I choose to publish my "inventions" at Usenet n (1)

colordev (1764040) | more than 4 years ago | (#31595460)

You could have at least read the summary:

I did, and I've had my share of these kinds of patent troubles. I no longer believe so much for (SW) patents and consider most of those waste of time. And I agree showing prior art is tricky, very tricky. And I hope, if needed, I've got enough both offensive and defensive patent skills if needed. In past I've done inventions, written patent applications and got patents. So I know the formal things. But as I publish the patent details, as you mentioned, using those interconnected patent claims, well chances are I publish something I *could* get a patent self as it described as a real invention. And if I manage to describe a patentable invention then it alone may serve as a defense - if their's isn't exactly like mine.

And what about those offensive techniques, if you annoy me enough changes are I invalidate your other patents and hurt your R & D badly. Well I've done that too (in 2005-2006). Basically It took 2 weeks of HARD HARD HARD patent breaking activity, but it was enough to cause a lawsuit against me dropped - as in those two weeks I managed to make myself just too F*king poisonous to bite. But as said it was rough... very rough... but... it can be done. And no it was not a small entity that was suing me ;)

...besides SW patents , who cares... I remember one brave attitude being shown with the in BBC's OS video codec project. They just said: if there would be patent infringement claims... they would just code around those....

So, I don't know what works for you... I just believe publishing SW inventions at the Usenet [google.com] is an easy non-expensive way for making good quality prior art.

Re:I choose to publish my "inventions" at Usenet n (1)

shentino (1139071) | more than 4 years ago | (#31596176)

The reason prior art is risky is because it's an affirmative defense that the defendant, not the plaintiff, bears the burden of proof for.

Re:I choose to publish my "inventions" at Usenet n (1)

harmonise (1484057) | more than 4 years ago | (#31597014)

So, would an infringer have to infringe on all of those claims as narrowly interpreted? If so, it seems like one could avoid patents by making some trivial changes to the code.

Re:I choose to publish my "inventions" at Usenet n (1)

Absolut187 (816431) | more than 4 years ago | (#31597086)

However, it's quite common for the patent to hinge on a handful of claims and if you can prove that you don't do just one of the independent claims, you're free.

Whoa! No!
Pretty good post up until there.. Not sure where you could get that idea..
If you infringe even ONE claim (independent or dependent) you are liable for patent infringement.
(Perhaps you were thinking of the rule that infringement of a claim requires all the limitations of that claim).

The reason patentees include dependent claims is that even if you can invalidate the broader independent claims with a prior art reference, they can still fall back on a dependent claim. Thus, you might invalidate claims 1-36 based on prior art, but still be found to infringe claim 37 (dependent from claim 1).

Also, a real analysis of a patent requires looking at the (usually very long) prosecution history of the patent (the communications between the applicant and the USPTO).

Bottom line: Hire a really smart patent attorney who understands the technology.

-Patent attorney

Has he patented it? (2, Interesting)

nikanth (1066242) | more than 4 years ago | (#31594888)

Has Tridgell patented, the techniques to defend patent attacks? Or is this going to be a prior-art for a later patent?

Re:Has he patented it? (1)

nacturation (646836) | more than 4 years ago | (#31595042)

Has Tridgell patented, the techniques to defend patent attacks? Or is this going to be a prior-art for a later patent?

Ah yes... a variation of the obligatory I just patented [google.com] comment. Truly a staple of the many tired, used Slashdot memes for every patent story.

Bah Humbug (3, Interesting)

baadfood (690464) | more than 4 years ago | (#31595028)

Reading patents with an eye to identifying "Technologies" to use is an exercise in futility:
Most are stupidly obvious. The others written in leagalease.

Reading patents with an eye to identifying "technologies" to avoid is also an excercise in futility. Again, you need the mind of a lawyer, combined with the approach of a security researcher, to "see" the ways a patent could be exploited to somehow map to your own problem domain. That you were happily solving without resorting to the giant database of solutions to micro problems no one is interested in.

Next, theres just too damned many of them. If anyone took the time out to exhaustively read and analyse each patent enough to determine if the possibility for collision existed, well they wouldn't have a problem with patents as they'd never write any code.

Lastly, it takes courts a long time to determine if a particular product does conflict with a patent. This means theres a lot of grey area around the edges of a patent to determine if a particular approach is covered or not. Which means, of necessity, that, like Chinese ISPs, developers who read a patent would have to defensively eliminate huge swathes of potential solution space from their investigations, to avoid getting "too damned close".
 

A non-profit anti-patent union is the way to go (1, Interesting)

Anonymous Coward | more than 4 years ago | (#31595102)

The union goes around aquiring as many patents up as possible, and agrees to use the patent portfolio to help defend any of its members who are threatened with patent legal action. All members agree to not to sue each other. Maybe a fee is required to join, or patent donations. Maybe a cross between insurance and a union. If it gets powerful enough, it could make patents irrelevant. ... or are people already trying to do this

Re:A non-profit anti-patent union is the way to go (1)

shentino (1139071) | more than 4 years ago | (#31596186)

OIN

an idea, or 1 implementation of an idea? (3, Insightful)

bzipitidoo (647217) | more than 4 years ago | (#31595572)

I see several problems with Tridgell's approach.

1st, his talk assumes patents cover only a specific, narrow implementations of ideas. And if some patent troll challenges you, all you have to do is show your idea is slightly different. He says we've gotten it all wrong, because there isn't any such thing as an overly broad patent. I don't know. Isn't the point of a patent to cover an idea, no matter how it is implemented? What is a business method patent, if not that? But if he's right, then RIM really blew it. All they had to do was show that NTP's patents don't cover exactly, precisely what they did and the way they did it. That should have been easy, because they came up with their own system. Somehow, I think that if it had been that easy, RIM would have found the way. Instead RIM tried what he strongly recommends against, that is, they tried to show prior art. There was just this minor problem that their legal team foolishly hoked up some fakery on that point.

2nd, he assumes too much about the methods of the patent trolls. Sure, it all comes down to making money, but the straightforward approach of attempting to collect license fees isn't the only way to use a patent to that end. There's the use of patents to stifle competition. That's why MS supported SCO, not to profit off of licensing fees for Linux, but to hurt Window's biggest competitor. Then there's the shakedown, as IBM once did to Sun over 7 patents, including the infamous "fat lines" one. Sun did exactly what Tridgell says to do. They demolished IBM's claims of infringement. And it didn't work because IBM pointed out that they have over 10000 other patents. "Do you really want us to go back to Armonk and find 7 patents you do infringe?" Well, maybe Sun shouldn't have caved. And, there's harassment of the sort SCO did. They knew they didn't have a case-- they were just making a big legal stink in hopes their victims would decide it's cheaper to buy them off than fight them in court. How did PJ tear SCO's case apart? The way Tridgell recommends? Yes, but that was only a part of it. There was also effort to throw the validity of SCO's patents into question by showing prior art.

Aggressive defense (1)

Arancaytar (966377) | more than 4 years ago | (#31595822)

Of course prior art is a more popular argument in the free software community because it is a more aggressive defense. It's an attack against the patent itself. The free software movement is keen to destroy patents they consider unjust (which for broad and vague patents such as "taking online orders with a single click" or "online course management" is a given), and merely avoiding the damage from lawsuits may look like a "weak" move.

(Which is probably par for the course in law: Clients resent their lawyer's advice when they counsel against an aggressive course of action. Their rights were violated, dammit, and they want to see vindication. Even when the slower and less flashy strategy, even settlement, can have the better ultimate outcome.)

Why not just prior art everything? (1, Interesting)

rcragun (1042604) | more than 4 years ago | (#31595838)

This post reminds me of an idea I had recently. If patents are based on the idea that this is a new invention, something that is novel, but they are also contingent upon their not being "prior art," then why not just create the "prior art of everything"? What do I mean? I'm not a programmer, but from what little I know about programming, I'm guessing a programmer could relatively easily grab an electronic dictionary and using the logic in the article linked to in this post, wordscramble every noun with every adjective in the dictionary to create the prior art of everything. For example:

Claim 1) A [noun] consisting of:

* a [adjective] [noun],

* with [adjective] [noun] [noun]

You then use software to fill in the blanks with every possible word option:

Claim 1) A [computer] consisting of:

* a [grumpy] [fish],

* with [cloudy] [metal] [socks]

Run all of these permutations through, post them online with a time stamp and under the GPL code, et voila, the prior art of everything! Wait a year and a day and you can now claim every software patent is worthless because there is "prior art" - and all you have to do is reference the website that has the "prior art of everything." Hell, that should be the website: "priorartofeverything.com"

Then, whenever anyone files a software patent, point to "priorartofeverything.com" and say, "Nope. Someone already had that idea."

The end of software patents....

Re:Why not just prior art everything? (1)

Theaetetus (590071) | more than 4 years ago | (#31597460)

This post reminds me of an idea I had recently. If patents are based on the idea that this is a new invention, something that is novel, but they are also contingent upon their not being "prior art," then why not just create the "prior art of everything"? What do I mean? I'm not a programmer, but from what little I know about programming, I'm guessing a programmer could relatively easily grab an electronic dictionary and using the logic in the article linked to in this post, wordscramble every noun with every adjective in the dictionary to create the prior art of everything. For example:

Claim 1) A [noun] consisting of:

* a [adjective] [noun],

* with [adjective] [noun] [noun]

You then use software to fill in the blanks with every possible word option:

Claim 1) A [computer] consisting of:

* a [grumpy] [fish],

* with [cloudy] [metal] [socks]

Run all of these permutations through, post them online with a time stamp and under the GPL code, et voila, the prior art of everything! Wait a year and a day and you can now claim every software patent is worthless because there is "prior art" - and all you have to do is reference the website that has the "prior art of everything." Hell, that should be the website: "priorartofeverything.com"

Then, whenever anyone files a software patent, point to "priorartofeverything.com" and say, "Nope. Someone already had that idea."

The end of software patents....

Nope, because no one actually had the idea. I can say "I claim a system for travelling backwards through time, the system comprising: (a) a perpetual motion machine that provides power to (b) an interstellar warp drive capable of exceeding light speed," but I haven't actually invented anything yet. I've just said some words, but someone reading that wouldn't say, "oh, I see, yes, you simply build your perpetual motion machine and warp drive and put them together!" It's not prior art because it doesn't teach anything or add anything useful to the public domain.

Get advice from a master - PhD thesis and patents (0)

Anonymous Coward | more than 4 years ago | (#31595928)

I'm sure Tridgell must know something about reading software patents. Take his PhD thesis for instance, which is "based" to a large extent on one of the IBM patents he references. Well I guess that one must fall into the first category he mentions.

Why companies patent.... (1)

originalhack (142366) | more than 4 years ago | (#31596220)

Back in the days of dial-up modems, Hayes tried to force Motorola to license the (pause)+++(pause) escape sequence [Heatherington].

The response was swift... Motorola looked in their own collection of patents to see what Hayes probably infringed....

To paraphrase, the response started with "You use wire, don't you?"

Wait a second... software patents... (1)

clone53421 (1310749) | more than 4 years ago | (#31596290)

We’re actually supposed to read those?

But this is Slashdot. We don’t even read TFA.

Invalidity _can_ work (2, Informative)

rogerz (78608) | more than 4 years ago | (#31596888)

I think he's wrong equivocating the invalidity defense with the prior art defense. My understanding is a patent can be invalidated - and rendered completely ineffective - if you can show that it doesn't actually teach a practicable implementation of a way to achieve the claims.

I had experience with this. We received a cease and desist letter from a (large) company saying we were infringing a patent they had claiming synchronizing audio playback with the movement of a cursor. After carefully reading the description, we realized that they were actually describing doing this synchronization by assuming that the real-time clock signal was all that you needed to know how much of the wave file had been sent to the audio output ... and we knew that this could not actually work. It didn't account for processing delays owing to CPU/memory/bandwidth limitations. Our lawyer wrote a letter back to them saying this and we never heard from them again.

Note that the _claims_ themselves did not describe the synchronization method - they were claiming the generality of doing the synchronization. It was in the _description_ that they explained _how_ to do the synchronization and this is where we found the flaw which invalidated the entire patent. I should note also that the description included words indicating that the method they were describing was "essential" to the invention - so it was actually a badly written patent. If they had carefully qualified the description with words like "this is one possible method ... there are others known to those skilled in the arts", we might not have been able to make this defense. And, of course, this never went to court (probably because they realized how badly the description had been written). But, I've seen other such flaws in patent descriptions - you'd be surprised how often lawyers make stupid mistakes like this.

And, if you do find such a mistake, you will have helped to move toward invalidating the entire patent, as opposed to just avoiding the particular infringement suit. It is lots more work to wade through entire descriptions, and I wouldn't recommend doing it unless, as the speaker indicates, you are in the cross-hairs of an infringement suit. But, it can be a very good feeling if you succeed!

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