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Ask Slashdot: Using Code With an Expired Patent?

timothy posted more than 2 years ago | from the warm-up-the-mechanical-lawyer dept.

Patents 139

kruhft writes "I was recently doing some research into Genetic Programming and found a library through a blog post that looks to be useful. After looking over the code and license, I found that this was the first piece of code I had seen that was protected by a patent, issued on June 19, 1990. I read that patents last for 20 years, meaning that the patent that this code refers to is expired. Is there any way for me to be sure that using this code is safe from any patent troll attacks if I choose to use it? Would rewriting the code keep me from violating any other patents that the author might have regarding the use of such an algorithm? Does the code pass into the public domain after the patent expires?" Note to Chrome users: the above link ("a library") works for me in Firefox, but not in Chrome on Linux; YMMV.

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Koza stuff? (1)

Anonymous Coward | more than 2 years ago | (#36953996)

The original Koza stuff? I can't imagine how useful that would be in these modern times, but you know your problem better than I do.

What I can tell you is that Koza never stopped working on it, so even if the exact code you're looking at isn't covered by patents, whatever you adapt it to do might be covered by a different patent that was assigned after that date.

Re:Koza stuff? (2)

Z00L00K (682162) | more than 2 years ago | (#36956124)

The code may still be covered by copyright.

Rewriting doesn't help (3, Informative)

daedae (1089329) | more than 2 years ago | (#36954008)

A patent covers the method, not the implementation. If the patent is expired and the code is not covered under copyright, you can use it. If there are other patents that cover it that aren't expired, then you'd still be exposed to trolling.

(IANAL)

Re:Rewriting doesn't help (4, Insightful)

PatentMagus (1083289) | more than 2 years ago | (#36954126)

Yes, daedae has it right except for a few omissions. A patent that issued in 1990 would indeed be expired today, so you don't have to worry about that patent. However, there may be later patents, perhaps even a submarine patent, lurking in wait for you. Furthermore, you are never safe from patent trolls.

Copyright is probably your biggest issue though. Simply rewriting the code doesn't always work unless you take some type of positive step to ensure that the new code is "clean". For example, do not just go through the old code changing variable names and cleaning things up here and there. The folks that do clean implementations 'for real' will actually hire programmers and give them specifications but absolutely no code or psuedo-code. A little more googling may turn up another implementation. Genetic algorithms and programs were all over the place 20 years ago.

Re:Rewriting doesn't help (1)

godrik (1287354) | more than 2 years ago | (#36954262)

Well, there can not really be *later* patent, since the code itself would be a prior art to that patent. (Assuming the code has not changed since 1990.)

Re:Rewriting doesn't help (2, Informative)

eh2o (471262) | more than 2 years ago | (#36954568)

There can be a later patent that contains an improvement on on the first. It is derivative work but contains some novel aspect. If that improvement is used in an implementation then it is in violation of the later patent subject to the later priority date. Usually one can find these derivative works by searching the USPTO for citations to the first patent.

Re:Rewriting doesn't help (2)

sjames (1099) | more than 2 years ago | (#36955984)

Sadly, you are correct. The fact that you ARE correct puts the lie to the claim that patents result in meaningful disclosure since such a disclosure is likely poisoned for years after the patent expires.

Re:Rewriting doesn't help (2)

HarrySquatter (1698416) | more than 2 years ago | (#36955278)

Wrong. Enhancements to a previous patent are routinely issued.

Re:Rewriting doesn't help (2)

Theaetetus (590071) | more than 2 years ago | (#36955506)

Well, there can not really be *later* patent, since the code itself would be a prior art to that patent. (Assuming the code has not changed since 1990.)

Not true - there could be one or more continuation applications, claiming priority to this patent. As a result, this patent would not be prior art.

Incidentally, the laws have been changed to solve this particular problem (submarine patents), but patent applications filed prior to 1997 are grandfathered.

Re:Rewriting doesn't help (1)

DevConcepts (1194347) | more than 2 years ago | (#36954310)

"I am a lawyer, but not yours. Anything I tell you might be a total lie intended to benefit my clients at your expense."

Most honest thing I have ever heard from a lawyer.

Re:Rewriting doesn't help (1)

war4peace (1628283) | more than 2 years ago | (#36954848)

The folks that do clean implementations 'for real' will actually hire programmers and give them specifications but absolutely no code or psuedo-code.

Yup, that definitely sounds like the Chinese Wall technique. Quite successful in... China :)

Re:Rewriting doesn't help (2)

Z00L00K (682162) | more than 2 years ago | (#36956138)

A way around this is to provide the whole solution in a country where software patents aren't valid.

It's up to whomever that's downloading the code to consider if there may be a patent that's applicable or not, but it's not your headache.

No (4, Informative)

bmo (77928) | more than 2 years ago | (#36954020)

>Is there any way for me to be sure that using this code is safe from any patent troll attacks if I choose to use it?

Short answer: No
Long answer: There are duplicate patents of everything out there. This was explained in the This American Life episode 441. http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack [thisamericanlife.org]

Solution:

Stop looking at patents, you idiot. Actively looking at patents and then violating someone's patent means that you "knew or should have known" of the other patent, infringed on it deliberately, and are now liable for triple damages. This is in contrast to "incidental" infringement of someone's patent.

--
BMO

Re:No (2)

ehrichweiss (706417) | more than 2 years ago | (#36954154)

Did you know there was a ruling this year that actually said that NOT looking made one liable for triple damages? Damned if you do, damned if you don't. I'm still searching for the article that mentioned this but IIRC this happened in May so it's not widespread as of yet...

Re:No (2)

yuhong (1378501) | more than 2 years ago | (#36954394)

I think the recent patent reform act in the US tries to clean up this mess.

Re:No (3, Insightful)

darkchubs (814225) | more than 2 years ago | (#36954800)

Pffffft, The bill is so watered down it does nothing good and a some bad. Reform was going to include patent validity in trial, this would have helped flush the crud out of the system... but our overlords couldn't decide if that was good for them or not, so it fall away.

Re:No (1)

pete6677 (681676) | more than 2 years ago | (#36955678)

So look, but don't look so hard you'll actually find something.

But seriously, there is NO way to develop any software that is the slightest bit useful without violating someone's patent. Hell, we're probably all violating patents right now by transmitting "text for the purpose of public discussion - using a computer".

Re:No (1)

snowgirl (978879) | more than 2 years ago | (#36954160)

Stop looking at patents, you idiot. Actively looking at patents and then violating someone's patent means that you "knew or should have known" of the other patent, infringed on it deliberately, and are now liable for triple damages. This is in contrast to "incidental" infringement of someone's patent.

While this the default good advice regarding patents, I don't think he went out of his way to find this patent, because he likely has seen tons of code that is patented, this is just the first that he's aware of. Which makes me think that the notice was in the code. Which is actually a good idea for patented code. "They copied my code, which includes a patent notice, which means that they were aware that it was a patent violation, and therefore open to triple damages."

(Note: although the above code might imply that I support software patents, I don't. It's a "good idea" for patent trolls.)

Re:No (3, Informative)

WidgetGuy (1233314) | more than 2 years ago | (#36954518)

Indeed, there was mention of not one but three patents in the header comments of the CL source file (the "a library" link in the /. summary). To wit: "...is the subject of my United States patents 4,935,877, 5,136,686 and 5,148,513, foreign counterparts, and other patents pending."

In addition, that same file contains a clear copyright notice.

Re:No (4, Interesting)

PRMan (959735) | more than 2 years ago | (#36954166)

Which turns the entire patent system on its head. The whole point of patents was to publish the invention so that people could look at it, decide if they wanted to use it (or find a way to compete with it) and then license it or go around it. All of this fosters innovation, since those that look at it and license it are quicker to market and those that compete increase competition.

The whole "treble damages for willful infringement" nonsense just proves that the patent in question was not a novel invention that couldn't have been easily copied by another design team without even looking. Because it just was copied by another design team without even looking. And why even publish patents if nobody is allowed to look at them? The whole point was that people would use the publications to get ideas of things to license. That's also why you were supposed to put your patent # on your useful invention, so that other people could know how to look it up.

Don't copy warning. (1)

Anonymous Coward | more than 2 years ago | (#36954338)

That's also why you were supposed to put your patent # on your useful invention, so that other people could know how to look it up.

Really? I honestly thought is was a "don't copy this or I'll sue your ass off for infringement" warning; like the "Patent Pending" folks like to put on their stuff.

Re:No (2, Insightful)

Grishnakh (216268) | more than 2 years ago | (#36954504)

The whole point of patents was to publish the invention so that people could look at it

The late 1700s are calling and want you back.

The whole point of patents now is to provide a legal way for large corporations to block competition from smaller competitors using the court system.

The 1700s called? (0)

Anonymous Coward | more than 2 years ago | (#36955586)

Re:The 1700s called? (2)

Grishnakh (216268) | more than 2 years ago | (#36955636)

I tried, but they didn't believe me when I told them what America would be like in the year 2011.

Close but not quite (1)

gr8_phk (621180) | more than 2 years ago | (#36954838)

The whole point was that people would use the publications to get ideas of things to license.

No, the point was to get inventors to publish how things work. In exchange they were given exclusive rights for a number of years. This is the first I've ever heard of the unfortunate wording you chose (get ideas of things to license). The point was to spread know-how. The sacrifice was limited exclusivity.

Re:Close but not quite (1)

Attila Dimedici (1036002) | more than 2 years ago | (#36955068)

The whole point was that people would use the publications to get ideas of things to license.

No, the point was to get inventors to publish how things work. In exchange they were given exclusive rights for a number of years. This is the first I've ever heard of the unfortunate wording you chose (get ideas of things to license). The point was to spread know-how. The sacrifice was limited exclusivity.

Yes, and the point of getting inventors to publish how things work was to make sure that inventions were not lost (this post is in no way intended to contradict the post I am replying to, merely to amplify something he seems to be aware of, but did not explicitly state). This means that when someone has an obscure patent and five or six people independently duplicate it, it is obvious enough that it should not have been patented in the first place.

Re:No (0)

Anonymous Coward | more than 2 years ago | (#36954864)

Let's not go overboard here. Only look at expired patents. You should actually feel additional safety doing this, because if anyone comes up and smacks you with patent infringement, you can cite an expired patent as prior art. I cannot imagine a better patent troll defense.

Re:No (1)

martin-boundary (547041) | more than 2 years ago | (#36956088)

Except the patent troll has a shiny "on a 2011 computer" patent, whereas your prior art for the same algorithm is only a puny "on a 1989 computer" patent. So unless you run your algo exclusively on XT class computers, you're gonna get creamed anyway.

Re:No (1)

WillyWanker (1502057) | more than 2 years ago | (#36955834)

Because like copyright it went from being a tool that fosters innovation and creativity to one that reaps huge monetary rewards at the expense of innovation and creativity.

Re:No (1)

moonbender (547943) | more than 2 years ago | (#36954172)

Hey, did you pass around an TAL recommendation before? That is, months ago? Someone on Slashdot did, and since then it's pretty much become to be my favorite podcast (and despite the name, it's easy to relate to as a European). Just wanted to say thank you to whoever it was. ;)

Re:No (1)

jkauzlar (596349) | more than 2 years ago | (#36954240)

No, the episode came out just a couple weeks ago. Wonderful episode, wonderful show.

Re:No (0)

Anonymous Coward | more than 2 years ago | (#36955266)

I think he was asking about TAL the show. It's been on since 1995.

Re:No (0)

bmo (77928) | more than 2 years ago | (#36954316)

I may have tossed around the TAL episode about failed cryogenic life extension months ago in a response about a modern cryogenics life extension article on /.

I believe the episode was entitled "Mistakes were made"

http://www.thisamericanlife.org/radio-archives/episode/354/mistakes-were-made/ [thisamericanlife.org]

TAL is the best show on radio or TV.

--
BMO

Re:No (0)

Anonymous Coward | more than 2 years ago | (#36954366)

The parent comment is overly glib and misstates the legal standard for willfulness.

First, the standard for willful infringement is not "knew or should have known." The standard is "at least a showing of objective recklessness" (see In re Seagate 497 F.3d 1360 (Fed Cir. Aug. 20, 2007) (en banc)).

Second (and this is just a quibble), there is no such thing as incidental infringement. There is only infringement (whether direct, induced, or contributory) and willful infringement.

Re:No (1)

darkmeridian (119044) | more than 2 years ago | (#36954478)

Pretty much this is the right answer. Patents only serve to exclude. The fact that you aren't covered by one patent doesn't give you the right to use the subject matter; it only means that that patent will not be a problem. The OP is considering a freedom to operate study, which is much more intensive and requires a search and review of all relevant patents. That's costly because the team of lawyers doing the paper has to cover their asses.

If you create your own code without looking at anyone else's code, then you might be liable for patent infringement but it won't be willfull infringement, which can unleash all sorts of asskicking such as treble damages and attorneys fees.

John Koza is a really good guy (0)

Anonymous Coward | more than 2 years ago | (#36954508)

Before seeking questionable guidance from slashdot, why didn't you address your question to Mr. Koza. John Koza is a naturally intelligent and good-natured gentleman. I have no doubt that he would respond to your query. He is the type of person that would probably be willing to suggest additional GP software that you might want to explore.

Before getting your panties in a knot, please, drop a note to Dr, Koza.

The code is prior art? Other patients have expired (1)

nzac (1822298) | more than 2 years ago | (#36954546)

Assuming you can prove the code is 20 years old either patents used in the code have expired or later patents are invalid due to prior art that would hard to ignore.

Unless the code modified to include new patents he should be safe?

Re:No (2)

MSTCrow5429 (642744) | more than 2 years ago | (#36954752)

There cannot be valid duplicate patents on anything. See 35 U.S.C. 102.

Re:No (1)

HermDog (24570) | more than 2 years ago | (#36955354)

There cannot be valid duplicate patents on anything. See 35 U.S.C. 102.

That would be helpful if patents had to be valid these days.

Re:No (1)

MSTCrow5429 (642744) | more than 2 years ago | (#36956002)

There is a presumption that an issued patent is valid, but that presumption can be rebutted.

This American Life episode was wrong (1)

Theaetetus (590071) | more than 2 years ago | (#36955532)

>Is there any way for me to be sure that using this code is safe from any patent troll attacks if I choose to use it?

Short answer: No Long answer: There are duplicate patents of everything out there. This was explained in the This American Life episode 441. http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack [thisamericanlife.org]

If you look up the patents they're referring to, one is a continuation of the other. They're not duplicates - an inventor is allowed to file a patent application, and then later file a continuation application claiming priority to the first. The first one is not "prior" art for the second one, because they have the same effective filing date.

This American Life simply got it wrong.

Solution:

Stop looking at patents, you idiot. Actively looking at patents and then violating someone's patent means that you "knew or should have known" of the other patent, infringed on it deliberately, and are now liable for triple damages. This is in contrast to "incidental" infringement of someone's patent.

This is also not correct. The author looked at a patent and reasonably believes it has expired. Accordingly, the author has a reasonable belief that the claimed subject matter is no longer subject to an active patent. Thus, performing the patented method would not knowingly be infringing a valid patent.

Disclaimer: I'm not your lawyer, this is not legal advice, and should not be relied on.
Further disclaimer: You're not a lawyer either, BMO, and so you shouldn't be giving incorrect legal advice without a disclaimer.

probably safe (0)

Anonymous Coward | more than 2 years ago | (#36954024)

patents issued before ~1996 lasted 17 years from date of issue. So the patent theoretically would have expired June 19, 2007.

I say theoretically, because then, and now, patents can be delayed to make up for delays at the patent office. My guess is that this patent probably did not receive a term adjustment of five years, but you don't know, and you can't know until you look up the patent file and research.

Patent isnt the problem... (0)

Anonymous Coward | more than 2 years ago | (#36954032)

Unless I have read your question wrong, it's copyrigth I'd be thinking about. The process would be most likely okay in different code, but the copyright still stands. Do you want to use it within the terms of licence? You are good to go. If not, rewrite, but the process will be fine to use.

Patents and Copyright (0)

Anonymous Coward | more than 2 years ago | (#36954034)

The patents may have expired, but there may have been others granted for different, new, novel uses that are still in effect and which may bite you. The other issue is that the author claims copyright on the code.

Copyright is for the life of the author + so many years (the exact amount negotiated by the Senators from Disney escape me right now), so that could be another way you could get stung.

I'd simply use the code as the author wishes, and give credit in the headers to the patents - expired as they may be...

Hope this helps...

They still have the copyright. (2)

nzac (1822298) | more than 2 years ago | (#36954040)

You will have to rewrite the code to avoid copyright.

You could ask him if you can use the code if it was never used for anything profitable he could be a nice person and let you credit him.

Re:They still have the copyright. (2)

multimediavt (965608) | more than 2 years ago | (#36954470)

He already grants a free license to academia...follow the links

Re:They still have the copyright. (1)

nzac (1822298) | more than 2 years ago | (#36955962)

I assume he read that much of licence but its not the most permissive licence ever. From my reading anyone else wanting to use the code would have to apply for the licence and then apply his changes. If he wanted to do anything useful with the code apart from producing some figures for a journal then the licence is pretty useless.

Get a lawyer (1)

mbone (558574) | more than 2 years ago | (#36954052)

Relying on Slashdot for legal advice ? Not wise.

Re:Get a lawyer (0)

Anonymous Coward | more than 2 years ago | (#36954148)

brought to you by the American Bar Association.

This is actually one instance where you certainly don't need a lawyer. The facts are well established. Patents expire after 20 years. Copyright is essentially forever. There's likely a million patents on this same thing, some of which haven't expired (which is no different than anything else in software). If your business is successful, there's some chance you'll get sued by patent trolls.

A lawyer won't tell you anything useful beyond that, and will charge you thousands of dollars.

The real advice is stop worrying about the patents. Nobody is going to sue you unless you're successful anyway. Either abide by the copyright license, or make your own implementation of the algorithm based on the patent, or make a clean-room implementation of it based on the code.

Re:Get a lawyer (1)

pete6677 (681676) | more than 2 years ago | (#36955706)

When it comes to software patents there's no such thing as a clean-room implementation. Or more precisely, it would still get you sued. Patents on physical things only restrict a particular method of doing something. Software and business method patents cover the end result. Look at all of these smartphone patent trolls popping out of the woodwork. They aren't suing over the actual methodology - they're suing everyone that makes any kind of pocket device that performs computing, even if it was developed in a clean-room.

Re:Get a lawyer (2)

snowgirl (978879) | more than 2 years ago | (#36954178)

Relying on Slashdot for legal advice ? Not wise.

This. More so, specifically, don't assume that since the disclaimer says they last 20 years that that means that it has expired. I could put a disclaimer that says that the patents last for only 5 years, then you go "oh, it's not patented anymore!" And reimplement it, and then I sue you for knowingly violating my patent. Why? All because you took legal advice from the very person you would end up being a defendant against.

Re:Get a lawyer (2)

Dragonslicer (991472) | more than 2 years ago | (#36955028)

More so, specifically, don't assume that since the disclaimer says they last 20 years that that means that it has expired.

Well, this is something that can be verified outside of whatever disclaimer is in the code. In this case, though, it isn't quite right. A patent that issued in 1990 would be valid for 17 years after issue. Patents that issue now are valid for 20 years after filing.

Re:Get a lawyer (0)

Anonymous Coward | more than 2 years ago | (#36954272)

Seems like almost every day I see someone ask a question I see "get a lawyer" posted on /.

I'm beginning to wonder if this isn't a recruiting ground for customers for lawyers. They can now stop advertising in the yellow pages and on diner placemats.

short circuit eval *before* you "gift a lawyer" (1)

epine (68316) | more than 2 years ago | (#36954776)

Relying on Slashdot for legal advice ? Not wise.

Paying for a lawyer to tell you he can't actually help you, not wise.

You'd think computer programmers wouldn't be quite so stupid. I'm researching building codes for secondary suites today, as someone I know is looking at purchasing a nearby property. There's the official act, which is buried behind a paywall. There are also unreliable secondary sources, which I can click through immediately. Should I even bother?

Here's the thing. Willing to take on the risk if:

plumbing + electrical conversion < $refit_budget

Either *alone* (you've heard of short circuit evaluation) could render the decision negative. Each might have a fee required to obtain authoritative information. Money is saved by accessing *first* the official code with the greatest chance of rendering a negative decision (suitably weighted by the fee required).

Now how am I supposed to weight the odds without asking complete idiots? The authoritative sources are stuck behind the fee I'm trying to minimize.

Rely upon is so "Wikipedia will never work" it makes me puke. There's a lot of potential for prudent cost minimization long before you have to pay the fucking lawyers their extortionate fees. Excellent lawyers that don't charge fees are as common on the ground as massless pulleys.

The whole point of social group-think is to retune the balance of power until you're pretty sure you aren't paying a lawyer his hostage fee for a hostage he doesn't actually have.

I don't mind paying lawyers for services rendered. A proper title search is real work. I do mind paying lawyers for making me feel like chicken shit. I live every waking hour of my professional life navigating rule based systems, but somehow the building code surpasses my intellectual powers of first appraisal?

Primo Levi once wrote a book titled, "If not now, when." If the technologists of the world are not willing to stand up and say "your rule based system is full of shit" then what?

After self-driving cars become routine, textual analysis of laws and bylaws is in the gun sights. There are already TED talks setting up traffic cones for the battle to come:
Four ways to fix a broken legal system [ted.com]

What's happened here, again, almost without our knowing, is, our culture has changed. People no longer feel free to act on their best judgment.

No shit, Sherlock. And that's just the first one I found. Adding a strikethrough attribute to "get a lawyer" as sage advice concerning matters of everyday practicality would make a decent life mission. Don't get me wrong: conflict happens. With the potential for real conflict, you most definitely want to talk to professionals, and the fees won't be trivial. But no-one asks any more "Is there potential for real conflict?" What we ask is "Would you rather feel chicken-shit wise or self-assured stupid?" Who wants to live in a world like that?

Re:short circuit eval *before* you "gift a lawyer" (1)

tibit (1762298) | more than 2 years ago | (#36955998)

If you're in the U.S., law must be accessible to all, in its entirety -- this apparently has a long legal history. So if something is a code -- too bad for the organization that tries to bully you into paying, it's your right to get it at your library, and it's your right to copy and redistribute it as you please. This is in stark contrast to, say, Europe, where plenty of directives "include by reference" ISO and IEC standards that cost thousands of dollars.

For U.S. building law from pretty much every state, law that includes some international codes, see bulk.resource.org [resource.org] . Don't ever spend another dime on NEC or building codes that are law in some jurisdiction in the U.S. It's silly.

Re:Get a lawyer (0)

Anonymous Coward | more than 2 years ago | (#36955568)

halleo My Name Is DR Nick, and how can I be aid of no?

no it does not pass into public domain (2)

Surt (22457) | more than 2 years ago | (#36954060)

The code is also protected by copyright, which is the real opposite of public domain, and lasts basically forever. The idea is no longer protected by patent, so you can now make your own, clean-room implementation of the idea without violating the patent.

Re:no it does not pass into public domain (1)

PRMan (959735) | more than 2 years ago | (#36954174)

"Clean room" meaning that it's too late, because you already looked at the code. But if you do rewrite it, make sure you don't have the code in front of you as you do it.

Re:no it does not pass into public domain (0)

Anonymous Coward | more than 2 years ago | (#36954330)

You can always find a competent programmer and tell him to implement the idea, without him at any point reading the original. Now you can even read the code all you want to make sue you understand it, find the flaws and tricks etc.

Re:no it does not pass into public domain (1)

backslashdot (95548) | more than 2 years ago | (#36954590)

I am not a lawyer, but I think you can have it in front of you to make sure you aren't writing any code that looks similar.

The idea is no longer patented so I think all he has to do is to make sure his implementation doesn't lift chunks of code verbatim.

Re:no it does not pass into public domain (1)

michael_cain (66650) | more than 2 years ago | (#36955408)

This has missing <sarcasm> tags, right?

I'm not a lawyer either, but have been through this. As others have pointed out, patents have a finite life but copyright is basically forever. If it gets to court, the only legally safe approach is a standard clean room implementation: one person/group read the copyrighted code and wrote a spec, a non-overlapping person/group wrote all new code from that spec. Be prepared to show your version control history to the court to demonstrate that you started from scratch, and explain to the court the process you used to limit communication between the two teams to the spec itself.

If you right specs from the code, IT IS NOT CLEAN (0)

Anonymous Coward | more than 2 years ago | (#36955696)

Looking at the original code is and developing ANYTHING, including a set of requirements/specs means that your implementation is no longer a clean room.

To be clean room you have to start from ZERO, using nothing but published specs ... not specs and/or requires written by somebody looking at the original source covered by a patent and non-public-domain copyright.

The Copyright doesn't expire. (1)

robbak (775424) | more than 2 years ago | (#36954064)

The copyright doesn't expire after 20 years, so you cannot copy the code. You can re-write it, though. As long as you have never seen the original.
Note that nothing makes you safe from patent troll attacks, but using 20-year old code is as close as you will ever get. Mind you, someone will probably claim that combining two obvious techniques covered in Knuth, written in expired patents, in the same software, is covered by their patent issued last year. Even if you just copied an example from K&R.

Re:The Copyright doesn't expire. (1)

the eric conspiracy (20178) | more than 2 years ago | (#36954784)

US Patent documents are not copyrightable. So if the code appears in the patent it is free of copyright.

Re:The Copyright doesn't expire. (1)

brusk (135896) | more than 2 years ago | (#36955664)

That makes no sense whatsoever. Something in a patent document could, for other reasons, be copyrighted--for example, I could include a copy of a short story I wrote in a patent application (for example, in explaining how a short-story-rewriting machine worked). Would that deprive me of copyright over my short story?

Re:The Copyright doesn't expire. (1)

kanweg (771128) | more than 2 years ago | (#36956278)

No, it means you can copy (xerox/scan) the patent (the patent system exists to distribute information; and requires the applicant to do it extensively so it can be reproduced). If you put the code on a disk as code (not as a scan, that would be fine), it will be covered by copyright. Unfortunately there's double-dipping here.

Bert

Copyright (1)

Blackeagle_Falcon (784253) | more than 2 years ago | (#36954068)

Even if the patent has expired, the code is presumably covered by copyright (which has a much longer term than a patent). You can use the underlying method described in the patent, but you'll have to write your own code implementing that methodology.

no, rewriting does not protect you (1)

Surt (22457) | more than 2 years ago | (#36954092)

Patents cover ideas, not implementations. Rewriting the code with the same idea still violates the patent. Rewriting would allow you (maybe, depending on how you rewrite) to avoid a copyright violation claim. But for patents, you are busted no matter what you do if you use the same idea/mechanism as the patent holder. Again, they have power over the invention's premise, not its specific implementation.

Re:no, rewriting does not protect you (1)

PRMan (959735) | more than 2 years ago | (#36954186)

Patents cover ideas, not implementations.

Actually, patents cover an expression of an idea. They explicitly CANNOT cover an idea, although companies and judges are edging ever closer to that line.

Re:no, rewriting does not protect you (2, Insightful)

Anonymous Coward | more than 2 years ago | (#36954464)

They leapt like superman across that line many years ago.

Re:no, rewriting does not protect you (0)

Anonymous Coward | more than 2 years ago | (#36954312)

Actually in some countries where law makes sense patents can only cover specific implementation and patenting an idea is impossible. But not in US. Tell me how buildings with rotating floors have been built in the 50's and the 60's but just in 2007 a guy patented turning floors in a building in US. And then he claims his patent is valid for the whole world.

Patents should only be able to cover an implementation (a material, an application) and only within the country that issued that patent.

Re:no, rewriting does not protect you (1)

Dragonslicer (991472) | more than 2 years ago | (#36955048)

I think you missed the issue date of the patent. Protip: unlike copyright, patents expire during your lifetime.

Short answer (0)

Anonymous Coward | more than 2 years ago | (#36954094)

Its expired but its actually a bit more complicated than that to determine the length of a patent. First, you have to check whether this was filed before or after June 8th, 1995 which is when the US adopted the so-called "twenty year" term. If it was filed before that date, it was 20 years from the date of filing, or 17 years from the date of grant. The 4935877 ("'877") patent for example falls in this category. Therefore, we can tell right away that its already guaranteed to be expired. If its after that date, its 20 years from the date of the earliest non-provisional application that it claims priority to. (divisionals, continuations, continuation-in-parts all count for this). Second, you need to adjust for a terminal disclaimer (the patent will die at the same time of an earlier one to ensure there's no double patenting - fairly rare to see this), or term extension (days added to the twenty-year term due to delays at the USPTO - fairly common to see a year to two added). Third, you need to check to see if the maintenance fee's have been paid at 4, 8 and 12 years after the date of issue. If they haven't been paid - it dies. That said, if its less than 5,000,000 it has to be expired by now.

Now as to whether you can use the code in the patent? It's probably safer to use the code in the expired patent than go for a variation that still may fall under a valid patent somewhere else. The point of the patent system is to disclose your invention to the public in return for your term of exclusivity. Once its expired, the public gets to enjoy the benefits.

No, no, and no. (1)

nedlohs (1335013) | more than 2 years ago | (#36954136)

also patents != copyrights

Use It (0)

Anonymous Coward | more than 2 years ago | (#36954162)

It's public domain now, so go ahead and use it.

There is no copyright issue because the inventors did not reserve their copyright. If they had, there would be a notice at the beginning of the description. This patent is expired. While new patents get 20 years from their filing date, this one would have received 17 years from its issue date. That means that this patent expired in 2007.

The nice benefit of using this patented method is that no one has a realistic chance of suing you. No one else can reasonable assert that their patent is valid if you show them this patent.

Re:Use It (1)

larry bagina (561269) | more than 2 years ago | (#36954442)

Under the Berne Convention (which has been in effect in the US since 1989), copyright is automatic and does not require registration.

Re:Use It (2)

mysidia (191772) | more than 2 years ago | (#36954612)

It's public domain now, so go ahead and use it.

NO.

There is no copyright issue because the inventors did not reserve their copyright.

"Rights reserved" is not required for a work to be covered by copyright. The notice used to be required, in the US, but this was changed, for any work published after 1989 in the US, a notice is not required; copyright is automatic, as soon as a novel work with the required 'creative aesthetic' is fixed in tangible form, and is owned by the person who created the work. Today only ~20 countries in the entire world require any sort of notice.

The notice is for the benefit of those countries, and it is a reminder to the owner of the copy, what rights they don't have. Damages will increase if you remove a copyright notice, or prepare and distribute copies of a work with a copyright notice, as it will be presumed willful infringement -- you cannot claim ignorance (the notice is right there, in black and white.)

Besides the software very clearly states:

";;; Copyright (c) John Koza, All rights reserved.
;;; U.S. Patent #4,935,877. Other patents pending."

Re:Use It (1)

jackbird (721605) | more than 2 years ago | (#36955446)

1989? Wasn't it in the late 1970s when the US adopted the Berne Convention?

Re:Use It (1)

mysidia (191772) | more than 2 years ago | (#36955612)

1989? Wasn't it in the late 1970s when the US adopted the Berne Convention?

Last I checked, the law was called the Berne Convention Implementation Act of 1988, not 1969.

Re:Use It (1)

jackbird (721605) | more than 2 years ago | (#36955654)

Odd, because I just bothered to check myself, and indeed the Copyright Act of 1976 did away with the notice requirement. You are correct, however, that the act did not harmonize US Law with Berne, just with the Universal Copyright Convention.

RFTL .. Link (2)

OzPeter (195038) | more than 2 years ago | (#36954242)

OK .. seriously RTFL .. it says explicitly right there under what circumstances you can use the code. Did you read it? Did you attempt to contact the Author? Do you need your nose wiped by the /. crowd as well?

Re:RFTL .. Link (1)

multimediavt (965608) | more than 2 years ago | (#36954512)

Amen!

Published in 1992 (0)

Anonymous Coward | more than 2 years ago | (#36954268)

Since it was published in 1992, the easiest way to be competely sure it's clean is wait till 2002 (and figure out what month) -- at that point, any extant patents either does not cover it or is perforce invalidated by the code itself as prior art.

If you want to start now, though, just search for Koza's other patents from that time period (August 1, 1991 through the publication date in 1992) and see if any of them seem to cover it.

Rewriting can avoid copyright (if done correctly, such that you're not just non-literally copying it to make a derivative work) -- it doesn't help at all with patents. In fact, rewriting it may cause you to inadvertently violate other patents, and costs you the 100% bulletproof defense that your code is older than the 20 year patent term, though it's still pretty safe.

The code is copyrighted, it doesn't pass into the public domain until Congress stops extending copyright terms, so forever+1 day seems about right. If you can't use it under the proffered academic-only non-profit license, you'll need to rewrite to get around that. Which should be no end of fun if the author's inclined to get litigious -- you'll want to keep signed journals of your reverse-engineering work to reach a purely functional (thus non-copyrighted) description, and preferably another coder who hasn't seen the original to do the reimplementation.

Re:Published in 1992 (0)

Anonymous Coward | more than 2 years ago | (#36954650)

Whoops, I'm a moron -- forgot about the pre-1995 17-year term. So there's definitely no patents in effect on it.

Copyright's still a bitch, and it'll make you its. So license it or clean-room rewrite -- have fun.

It may be good protection ... (1)

MacTO (1161105) | more than 2 years ago | (#36954278)

Verify that a patent was filed, then check with a lawyer. The lawyer should be able to tell you:

a) if the patent has actually expired

b) how to reproduce the library as closely as possible to the patent's description without being sued over copyright (over the original library)

If it has expired and you can reproduce the library without violating copyrights, that patent should be a good defence if someone claims that you violated their patents (on that portion of your code).

Patent term expiration (4, Informative)

Dachannien (617929) | more than 2 years ago | (#36954340)

Patents applied for (or claiming continuity) before 8 June 1995 have a term of either 17 years from date of issue or 20 years from the filing date (or the earliest filing date in the continuity chain), whichever is longer. On or after that date, the term expires 20 years from the filing date (or the earliest filing date in the continuity chain). This is modified by any patent term adjustment printed on the face of the patent, which results from some kinds of delays during examination caused by the USPTO. If the applicant filed a terminal disclaimer in the patent, then they have disclaimed additional patent term beyond the expiration of some other patent because of "double patenting" issues. Additionally, the patentee must pay maintenance fees at 3.5, 7.5, and 11.5 years after the date of issue to avoid abandonment of the patent.

And that's not even all of the potential caveats related to patent term expiration.

In this case, of course, the patent in question expired a few years ago at least. A clean room implementation of that patent (to avoid copyright issues) will have no patent hassles arising from that particular patent. There could be other patents covering related techniques or improvements on that same technique that are still in force, although the risks associated with that are similar to the risks faced by anyone writing code these days.

Re:Patent term expiration (2)

multimediavt (965608) | more than 2 years ago | (#36954550)

Go look at the link, and realize where it goes (i.e. what server at what university), and then read what you wrote and tell me if a major university is going to let genetics code that they hold the patent to, fall into the public domain in the age of Big Pharma? A British university that filed, and got, three U.S. patents... and "foreign counterparts, and other patents pending."

Re:Patent term expiration (1)

Dachannien (617929) | more than 2 years ago | (#36956132)

Do you even know what a genetic algorithm [wikipedia.org] is?

Very important.... (1)

moosehooey (953907) | more than 2 years ago | (#36954354)

The 20 years is not hard-and-fast. For one thing, it used to be 17 years from issue, and I believe in 1990 they used the old calculation method. Now it is 20 years from filing. The 20 years is very often extended using a complex equation that comes out different if you look at it funny. So get a patent attorney to confirm that it's expired, and that there are no other patents that you might be infringing (where there is one...).

Asking Slashdot without obfuscating the question.. (1)

couchslug (175151) | more than 2 years ago | (#36954372)

...may mean you are screwed.

Write to the guy and ask... (1)

Freddybear (1805256) | more than 2 years ago | (#36954418)

Write to the guy and ask for his terms for licensing the library. If it's not too expensive, well and good.
If it's not worth it for your product, you know what to avoid in your own code.

LMAO... (1)

multimediavt (965608) | more than 2 years ago | (#36954430)

That's not just any code you found there. And it's protected by more than one (maybe, probably not) expired patent:

United States patents 4,935,877 5,136,686, and 5,148,513, foreign counterparts, and other patents pending.

That's code written by a University of London Computer Science professor, and he didn't pay for those patents out of his university salary. UCL paid for them. I would imagine those patents are quite intact, as large research universities don't often let go of IP like this. Especially genetics code in the age of Big Pharma.

You won'y have to worry about a troll. You'll get the scientist and the university that hold these patents. Good luck! You're gonna need it!

Re:LMAO... (1)

multimediavt (965608) | more than 2 years ago | (#36954440)

That's not just any code you found there. And it's protected by more than one (maybe, probably not) expired patent:

United States patents 4,935,877 5,136,686, and 5,148,513, foreign counterparts, and other patents pending.

That's code written by a University of London Computer Science professor, and he didn't pay for those patents out of his university salary. UCL paid for them. I would imagine those patents are quite intact, as large research universities don't often let go of IP like this. Especially genetics code in the age of Big Pharma.

You won'y have to worry about a troll. You'll get the scientist and the university that hold these patents. Good luck! You're gonna need it!

*won't...grrr

Re:LMAO... (0)

Anonymous Coward | more than 2 years ago | (#36955672)

You're an idiot.

First, the laws are the laws -- when the patent term expires (and yes, they have expired), they don't have an option of "not letting go".

And further, it's not genetics. It's genetic programming, and if you don't know the difference, you need to GTFO of /. and jump off a bridge. Not to punish yourself for being stupid -- that would require much more pain -- but just to get you out of everyone else's way.

Ask the author for a better license (1)

realxmp (518717) | more than 2 years ago | (#36954500)

Given that the patent has expired, and the state of software licenses on sample implementations have moved on a lot since the 90's ask the author. Just write him an email or snail mail asking if he'd be willing to license it under a more modern license. Modified BSD, LGPL, GPL or Creative Commons etc which would protect him and you. You'd be surprised how often that works, mainly because most authors hate to see a bit of code go to waste and it's nice to know something you wrote so long ago can be of use.

Absoluty not. (1)

darkchubs (814225) | more than 2 years ago | (#36954850)

First of all, there are so many overlapping idea patents that it almost certainly has contemporaries. The adaptation of the patent system to cover "processes" has lead us to a quagmire that a corrupt government (such as ours) is paralyzed to strike down. The only way we will see an end to the idea of idea ownership is when it hurts the big dogs. Then.... things will change. I see it starting to crumble now, let's hope this oppressive, startup crushing culture of "more IP better" comes to an abrupt halt soon.

I would think that asking a patent lawyer (2)

Stan92057 (737634) | more than 2 years ago | (#36954970)

I would think that asking a patent lawyer would be the only thing to do. Any advice here is just that, advice.

No hope (1)

PPH (736903) | more than 2 years ago | (#36955712)

I'm sure someone has refiled by appending "using the Internet" to the original claims.

Chrome on Linux (0)

Anonymous Coward | more than 2 years ago | (#36955926)

Chrome on Linux can't open a text file that happens to have a .Lisp extension?

The "won't open in Chrome on Linux, YMMV" reminds me of the old "Best viewed in Netscape" you used to see on Geocities sites etc.

Patents are scary (0)

Anonymous Coward | more than 2 years ago | (#36956272)

Longtime reader, first-time poster here.

Even if the specific patent you're talking about has expired (which it may not have, because the patent term depends on when and where it was issued, and it may have been renewed, as others have mentioned)...The facts of the matter are:

(1) Things that are ridiculously broad, obvious, and already-been-done are quite regularly patented in our industry.

(2) Something that is broad, obvious, and/or already-been-done should, legally speaking, not be issued a patent in the first place, and if it somehow gets one, a court should be able to overturn it.

(3) The patent office is so overworked that they don't check those things and a lot of patents that shouldn't be issued, get issued, particularly software patents.

(4) It's ridiculously time-consuming, expensive, and uncertain to hire lawyers and fight in court to get a patent invalidated or show your code doesn't infringe.

(5) As others have noted, even though it seems to be morally right to actually read all the possibly relevant patents and carefully code around them, if you make a mistake and accidentally put something in that's covered, or you think that something's not covered and a court later finds that it is, you get hit with triple damages. This is one of those situations where the legal system will actually punish you for going out of your way to do what most of us would think is morally right -- which IMHO indicates a badly broken legal framework.

Here are the common strategies for dealing with it:

A. Write your code and pray that it doesn't become high-profile enough to make a lawsuit profitable enough for a patent troll looking for cash or strategic enough for an unscrupulous company to target you as a potential competitor.
B. Write your code and pray that you or your employer has deep enough pockets to pay your lawyers to fight and the troll if you lose.
C. Write your code and pray that all the trolls are sensible enough not to "kill the goose that lays the golden eggs." That is, hope the trolls ignore it if it's unprofitable and otherwise, work out some sort of profit-splitting arrangement (alternate spelling: "protection racket") with you if it turns out to be worth something. Of course, you'll need a separate racket with each troll that decides to threaten to sue you.
D. Write your code and buy a bunch of other peoples' broad, obvious, already-been-done patents. If you're sued by someone for violating their patents, countersue them for violating your patents. Pray that trolls are rational enough to realize it's a situation of mutually assured destruction, or pray that your legal warchest is larger than all the trolls' combined, so you have the advantage if things go to court. This strategy is quite popular with the Googles and Microsofts of the world.
E. Write your code and lose your job when your company is sued into bankruptcy, or your house and kids' college funds if it's something you wrote on your own time.
F. Write your code and hide a bunch of suitcases full of Benjamin Franklins and/or gold bars by digging holes deep in the woods in a nearby state park, next to where your friendly local serial killer buried all the bodies. When you're sued and lose your house, dig it up and pray you don't go to jail for hiding assets from the courts, or because the cops get confused and think the bodies belong to you :)
G. Don't write your code. If you're a professional code monkey, this implies a career change :(
H. Since the situation generally favors patent trolls and patent lawyers, maybe those are financially lucrative, if morally questionable, directions for your career change :)
I. Write your President and Congress, and pray that sanity rears its ugly head in Washington, DC -- a rare sight indeed, at least in this twenty-something's lifetime, regardless of which party seems to be in control of things at the moment. Patents are Constitutionally a federal matter
J. Move somewhere else where things are better. As a typically insular American, I have little idea what the world is actually like outside our borders, so I couldn't begin to suggest where that might be.

IANAL, of course, and none of the above happens to be based on personal experience, just things I've read about software patents over the years.

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