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Basic Patent Law for Programmers

Roblimo posted about 15 years ago | from the what-you-didn't-know-you-needed-to-know dept.

News 221

Steven Young writes "As an intellectual property attorney, and a regular Slashdot reader, I would like to share a few of my thoughts regarding patent issues, especially as they relate to programmers. Although patents (for better or worse) are playing an ever-expanding role in the software field, many programmers do not know much about them." (Full story below.)

Independent Invention is Not a Defense to a Claim of Patent Infringement
- by Steven Young

People sometimes get confused about whether or not independent invention (i.e. inventing something without reference to the work of an earlier inventor) protects them from patent liability. This confusion is likely due to their familiarity with copyright law. Under copyright law, you only have liability to a copyright owner if you actually copy their copyrighted work. If you create a work of your own without reference to their copyrighted work, you are not liable to them for copyright infringement, even if your work closely resembles theirs.

Liability for patent infringement, however, does not depend on your having copied the work of another. You can be held liable for patent infringement if you have made, used, sold or imported, without a license, something that is claimed by a valid patent owned by another. Your lack of knowledge about the work (or patents) of another is irrelevant to the question of whether you are liable for infringing that person's patent.

Because you cannot realistically compare your own creation against the millions of existing patents, or even against the thousands that might be in the same field, there is no way to completely shield yourself from liability for patent infringement. Even if you could compare your work to those existing patents, there would be ever present danger from those patents that might issue next Tuesday. I see this potential "gotcha" as one of the most problematic aspects of current patent law.

The legal fiction that supposedly justifies this result is that a patentee (i.e. patent owner) is given this very strong right in exchange for disclosing an invention to the public. Upon the publication of a patent, everyone is constructively (i.e. by legal fiction) put on notice that they are no longer free to do the particular things claimed by the patent. As I mentioned, however, there are millions of patents currently in effect -- no one is really aware of the scope of coverage of any sizeable portion of them. Although there might be some individuals who are aware of the general state of patent coverage in particular niches, even they would be exposed to potential liability for those patent claims they are not aware of.

To compound the silliness of all this, the courts have held that no one but a patent attorney can really know what the scope of coverage of a patent claim is. Therefore, even the theoretical justification for absolute liability in patent law is not applicable to individuals who cannot afford to keep a small army of patent attorneys on retainer.

Software patents (of one kind or another) are valid in most countries of the world (even those that officially do not grant software patents).

In the U.S. software is clearly patentable. What many people are unaware of, however, is that, for practical purposes, software has been patentable in the U.S., and most other countries of the world, for quite some time. The current debate about software patents in certain non-U.S. jurisdictions is a matter of form over substance.

While you may not be able to patent "a computer program that performs the steps of X, Y and Z" in some countries, you can generally claim something like, a computer apparatus consisting of a processor and memory, wherein the memory contains instructions which, when executed by the processor, cause the processor to perform the steps of X, Y and Z Because this type of claim is directed to a computer programmed in a particular way, and not just a program itself, most countries will allow that claim. Strictly speaking, it is not a "software claim", but the effect is nearly the same. Anyone wanting to use the program described by the steps of "X, Y and Z" will necessarily infringe the claim, so this is one effective method of getting coverage for software. There are other forms of such claims, such as a claim to "a computer readable medium storing computer instructions which, when executed by a processor cause the processor to execute the steps of X,Y and Z", or even a simple method claim such as "a method comprising the steps of...". The computer readable medium claim would cover a diskette or CD-ROM containing the "X, Y and Z" program. The simple method claim broadly covers the steps of doing X, Y and Z, regardless of whether a computer is used or not. Some of these claim forms may not allow a programmer to be sued for direct infringement (for example, if the programmer is not distributing a pre-programmed computer, the programmer is not directly infringing the "computer apparatus" claim), but a programmer could be sued for contributory infringement on any of these claims. Legal form aside, the end result to a programmer is the same: using or distributing your programs puts you at legal risk.

The scope of a patent is defined by its "claims" -- patents generally cover much more than one specific product.

A lot of people think of patents as covering particular products -- a new speaker might be marked with one or more patent numbers, suggesting that there is a patent on that exact speaker. Actually, things are more complicated than that. Each of the patents indicated on the speaker includes one or more (usually more) "claims." Each claim specifies one or more characteristics which must be present in any device for that device to infringe that claim.

For example, there might be a claim specifying that the speaker cone angle is between 40 and 45 degrees, and that the speaker magnet is made of an alloy of iron and nickel, in which nickel makes up at least 5% of the alloy by weight (clearly I am just making this up, and I don't know anything about speaker cones, magnets or metallurgy). In order for the claim to be allowed by the Patent Office, a patent examiner must be unable to find an example of a speaker with a cone of the claimed shape and with a magnet of the claimed type. To infringe that claim, a speaker must have both these claim elements. Any speaker with both elements is an infringing device, and any speaker without both elements is (probably) not an infringing device.

Other claims in the patent may claim other combinations of elements, and each claim essentially stands alone. If you infringe one claim of the patent (i.e. you make, use, sell or import something that has all of the elements of the claim), you are liable for infringement, even though you are not infringing the other claims. It is as though each claim is an independent patent. To be free from infringement, you must clear every claim of every patent.

Willful infringement of a patent exposes you to major damages.

Ordinarily, when someone is found liable for patent infringement, they are prohibited from continuing the infringing activity, and they are ordered to pay the patent holder damages equal to a reasonable royalty for the use of the patent, or the patentee's lost profits. The law permits judges to increase the monetary damages by up to three times, however, if there is a finding of willful infringement, meaning that the infringer had knowledge of the patent before engaging in the actions which constitute infringement.

If someone brings a patent to your attention, and you decide that you are safe because it does not cover what you are doing, you are entering into a legally shaky area. The Court of Appeals for the Federal Circuit (effectively the final word on patent law, since the Supreme Court rarely takes patent cases) has ruled that anyone who is not a patent attorney is not qualified to determine the scope of the claims in a patent, and that it would be unreasonable for you to determine that a particular patent is not applicable to what you are doing unless you first get a legal opinion from a patent attorney. Because, as a matter of law, you couldn't really have believed that you understood the patent (yes, our federal courts can be quite condescending), you will likely be found liable for triple damages if it turns out that you were wrong, and that you really are infringing the patent.

Because of this, lawyers routinely advise their clients to avoid reading patents in areas they are working in. The danger posed by the willful infringement doctrine is seen as outweighing any benefit that can be gained from reading patents. This state of affairs, of course, negates even the theoretical benefit of the patent system, that the public at large learns about new technology once it is patented. As it stands, the people who should be learning from patents in any given field are the same people who stand to lose the most if they dare to take a peek.

The standard of invention for patents is much thinner than most people believe.

When a new patent is announced, one of the most common criticisms is that the patent is invalid because the patented invention is merely an obvious extension of something that is already done. Theoretically, this is a valid criticism. Two requirements for a valid patent are that it is novel (the inventor was the first (sort of) to invent that particular thing or method), and non-obviousness (that the invention is not an obvious extension of something that is already known).

In practice, the level of inventiveness required for patentability is vanishingly small. It is relatively easy to show that a patent claim is invalid for a lack of novelty: you simply find something in the prior art (prior art is typically something that was published more than a year before the patent was applied for, although there are many exceptions) that includes all of the elements of the claim. Showing that a patent claim is invalid because of obviousness is considerably more difficult. First, you have to find examples in the prior art that, when taken together, add up to the patented invention. That is not enough, however. You also have to find something in the prior art that suggests putting these prior art pieces together. That is often difficult to find, even where a modification does seem obvious.

During the examination of patent applications by the Patent Office, many claims slip through that are clearly obvious. This can happen for a number of reasons. One is that the patent examiner has not found any prior art that can be combined to give all of the elements of the claimed invention. Another is that the patent examiner has not found any suggestion to combine prior art that has been found. Still another reason is psychological: a rejection on obviousness grounds is rarely clear-cut, and some patent examiners are uncomfortable making such an inherently subjective call. So, when a claim to an obvious invention makes it through the Patent Office, what happens? Generally, the validity of the patent is only challenged by a defendant when the patent owner sues for infringement (assuming the defendant has enough money for a defense). In court, however, much deference is given to the judgment of the patent examiner who originally allowed the claims, and invalidating an issued patent is a very high hurdle. Unless the obviousness is extraordinarily clear (and it rarely is), the patent will not be invalidated on grounds of obviousness, and the patentee will be able to stop others from using the claimed invention.

The consequence of this is that very little inventiveness is necessary in order for a patent to be valid. As a rule of thumb, it is probably safe to assume that every trifling modification, no matter how small, will be patentable by someone -- as long as that someone gets to the patent office in time. In practice, there is a strong possibility that any given patent will be ruled valid, unless you can find something in the prior art that is exactly what is claimed in the patent.

Patents are national in scope, however...

A patent offers exclusive rights to the owner of the patent only within the country that granted the patent. International treaties, however, have made it relatively easy to get almost identical patents issued in many countries. While each country independently examines each application, patents that are allowed in one country generally get allowed in other countries as well. The existence of a U.S. patent suggests the possible existence of corresponding non-U.S. patents (and vice versa).

The U.S. is one of the only major countries that does not publish patent applications until they are issued as patents. In most other nations, patent applications are published 18 months after filing. This publication gives the public some notice of what is coming down the pike. Although the U.S. does not publish, many U.S. companies routinely file foreign counterparts to their U.S. patent applications, typically using the system put in place by the Patent Cooperation Treaty (PCT). The PCT provides for publication 18 months after the patent was first filed, even if that filing was in the U.S. As a result, even though the U.S. does not publish patents that are being examined, searching through international patent publications can tip you off as to what is currently being examined in the U.S.

Determining whether a patent is valid and enforceable is a non-trivial exercise.

Determining whether a patent is valid and can be enforced is very complicated. Some of the reasons a patent might not be valid or enforceable include:

  • (i) someone else invented the same thing first;
  • (ii) the invention was described in a publication more than a year before the patent application was filed;
  • (iii) the invention was offered for sale (by anyone) more than a year before the patent application was filed;
  • (iv) less than all of the actual inventors were named in the patent application;
  • (v) the inventor misled the patent examiner during examination of the application;
  • (vi) the inventor failed to disclose material prior art to the patent examiner during examination; and
  • (vii) the patent owner has misused the patent (the "misuse" doctrine is similar to antitrust).
This list is not nearly exhaustive, and each point on it is qualified by many exceptions. I provide this merely as a suggestion for ways to go about trying to get a patent declared invalid or unenforceable. If you intend to invalidate a patent, you will need to consult a patent attorney.

Disclaimer My remarks here are intended to be of general use, but (of course) they should not be taken as legal advice -- if you have questions about any particular patent issues, you should see your friendly neighborhood patent attorney.

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excellent, clarify prior art, please? (1)

MattMann (102516) | about 15 years ago | (#1601974)

it's not clear to me what "prior art" is if the prior-artist is me.

You can be held liable for patent infringement if you have made, used, sold or imported, without a license, something that is claimed by a valid patent owned by another.

if I write software that I don't particularly publicize or that I do particularly publicize, and then someone develops, applies for, and is granted a patent, am I protected? Let's assume that I can "prove" when I did it: How much does my own publicity enter into the question of whether my art is prior?

Also, BTW, you (and others) use phrases like

The legal fiction that supposedly justifies this result is that a patentee ... is given this very strong right in exchange for disclosing an invention to the public.

Look, call it an historical fiction, a raw deal, a moral fiction, all sort of things, but it's not a "legal fiction" because it is a legal reality. The bit about "software is not patentable" is a legal fiction since it's legally not true.

Re:Whoa (1)

smoke (771) | about 15 years ago | (#1601975)

The 'idiots' will drop patents eventually. It just takes some time and a bloody war we have to survive. It's pretty hard to explain that in this field communism is way ahead of capitalism.

Re:Patent everything. (1)

else...if (100943) | about 15 years ago | (#1601976)

Don't forget that anything which has been available for a year is no longer patentable (at least in theory). Most of open source is protected by that. Not all, unfotunately, but most.

Yes, But WHY? (0)

Anonymous Coward | about 15 years ago | (#1601997)

Intersting, but do patents help more than hurt the industry [and I'm not talking the law industry which it is obviously a goldmine for].

Let's abolish it already (0)

Anonymous Coward | about 15 years ago | (#1601998)

This law is going to cause lots of tears and many crucifixions of ordinary, law-abiding people. Even worse, many hackers' spouses and children are going to lose their savings and homes because of it.

So can't we change the law before we see the sad precedents in 60 Minutes.

Marko [mailto]

Thank you. (1)

Hermetic (85784) | about 15 years ago | (#1601999)

I must say thank you for an extremely well written and informative piece.
There is an obvious depth of knowledge in the article, though it is still easy to read and follow.

Might I suggest it be required reading for everyone before commenting on stupid patent stories here at /.?

Most of the comments usually display little or no knowledge of existing patent laws and proceedures here in the US, and a moderation of "Hasn't read the FAQ" would be quite handy in such cases.

Re:Software Patents. (2)

Cuthalion (65550) | about 15 years ago | (#1602000)

Where do you draw the line? Firmware? Microcode? Gate logic?

What's the difference? An invention's an invention. If you can emulate Roger's gate logic in software to perform the same operations and implement the same algorithm that he and RogCo spent $171m developing, is that different than if you just implement the hardware solution?

The reasons to and not to patent software are pretty much the same as those not to patent hardware. The big difference is that software patents affect more software geeks (and the open source folks).

law vs. morality (1)

HiThere (15173) | about 15 years ago | (#1602001)

I accept that what you say is what the law describes. This basically means that only companies have any rights, that only the wealthy can defend themselves successfully, and that if you try to justify yourself by pointing at the facts, you will be subjected to triple fines.

Also that you have no right to assume that a sentence means what it says.

Ever wonder why the lawyer jokes are so vicious?

Re:A question (3)

the eric conspiracy (20178) | about 15 years ago | (#1602002)

IANAL, but I do hold 10 patents so I have a bit of knowlwedge of how it works. From your description it sounds to me like Microsoft has a good patent. If nobody had used Bayesian networks in help systems before, they have at least two of the basic requirements to get a patent covered.

As far as Google goes, yes, they can patent the use of an algorithm to rank web pages. You can't patent an algorithm any more than you can patent any other natural law (i.e. gravity), but an application of an algorithm seems to me to be a pretty good topic for a patent. In reality it's the same idea as the Microsoft patent - you have a tricky technical problem, and come up with a slick way to solve it. In principle it's no different than the patent that was awarded for those little ramps that show down the bowling balls when they return to you at the front of the lane. Just because gravity is a well known phenomena doesn't mean the ramps aren't an invention.

If you look at patents, at the heart they describe a new application of an existing, well known scientific or mathematical principle. After all, this is what technology is. My first patent came from applying the Clausius-Clapeyron equation to a vapor-liquid equilibrium to develop a very sensitive temperature controller. I didn't invent Clausius Clapeyron, certainly, but I did invent a very effective temperature control system for a very difficult to handle situation.

Group against software patent (0)

Anonymous Coward | about 15 years ago | (#1602003)

I think there should be (if not already) a group devoted to combat software patents. If all (or most) of the programmers are against patents, then there might be a way to be heard. Why not a wolrdwide programmers strike, asking government to abolish software patents? This is a bit exagerated, but I'm sure together programmers and engineers would have some power...

Re:A question (1)

DdR (42123) | about 15 years ago | (#1602004)

The patent you talked about can be found on IBM's patent server (http://www.patents.ibm.com [ibm.com] ), for example this one [ibm.com] . Although I work in the field (as a Ph.D. student), I had no idea companies were patenting these algorithms... I'm going to think twice about publishing good results in the future :) It does frighten me a bit that companies can take work which was mainly generated by university researchers, polish it up here and there and patent it... Perhaps researchers should put their work under the GPL?

Re:Patent everything. (1)

schporto (20516) | about 15 years ago | (#1602005)

Two little things though.
1. Patents cost money. Typically at least a couple hundred just to file. To have it issued is more than that. Of course if you were just making it public then the issue fee wouldn't matter.
2. Although you may think it'll get things changed it would probably only get the cost raised.
-cpd

The possibility of an agreement... (0)

Anonymous Coward | about 15 years ago | (#1602006)

Between the computer programmers of earth, the IP attorneys of earth, and the governments of earth to stay out of each other's way, perhaps? Arguably, lawyers and governments hold tremendous direct power, however a somewhat overlooked fact is that computer programmers have become even more indirectly powerful than either through the fact that everyone uses computers and relies upon such, just as everyone depends upon a farmer. Is it possible that a mutual peace agreement can be struck such that governments and attorneys agree to keep off of computer programmer's turf, in exchange for, say, better debugging practices and more honest business practices across commercial programmers (A warranty for your $2000 software package per chance?). Inherently, the governments and lawyers could balk at the idea and run for free software, however if they errode that important foundation of computing, they will have run themselves out of options one day. So how about it? Fair software licensing for fair patent practices?

Excellent Piece (3)

Foogle (35117) | about 15 years ago | (#1602016)

Mr. Young deserves a big pat on the back for this. Patents have been a big part of slashdot discussions in the last year and I think we all could use a little bit of reference for our arguments, rather than mindless postulation about laws we don't fully understand. Thank Steve. People like you, ESR, and Bruce Perens are the spokes that keep our community together.

-----------

"You can't shake the Devil's hand and say you're only kidding."

so... no $$, you're screwed... right? (0)

Anonymous Coward | about 15 years ago | (#1602020)

While I appreciate the advice, this is all that this piece seemed to point out.

Attorney reference (4)

osterby (104420) | about 15 years ago | (#1602024)

This is a link to a list of Minnesota attorneys who practice intellectual property law and were voted among the best in their field by other attorneys in Minnesota. It may not be that helpful to non-Minnesotans, but several of the firms mentioned are national and might be expected to practice in this legal area in your geo area.

Super Lawyers: Intellectual Property & Computer Law [superlawyers.com]

Software Patents. (2)

spell_caster (82187) | about 15 years ago | (#1602026)

I thought patents could only be for "buildable" devices (i.e. hardware). What precedents started the ball rolling with software?

Thanks, Mr. Young (0)

Anonymous Coward | about 15 years ago | (#1602029)

It's nice to get an explanation from someone who works in the field. It certainly doesn't make me feel any better, though. :-( Is there any hope of improving the system? I feel like I'm at the mercy of some low-life non-producer who can patent some ridiculously obvious technique and then take me to court, knowing that I can't afford to defend myself.

Patents.... (1)

Pierre (6251) | about 15 years ago | (#1602030)

I just sat through a seminar a few weeks ago given by a patent lawyer. The picture painted wasn't as grim as the piece painted above.

I thought it was interesting that to be a patent lawyer they have to take a special bar exam which requires them to have a degree in the sciences.

Instead of litigation the first step is usually a invitation to stop what you're doing. Like what happened to Expedia. MS decided they would rather fight the patent than stop so they're going to court.

Software patents are an interesting area (makes me glad to be an ME). On one hand the idea is that you give full disclosure of you idea and the goverment grants you a 20 year monopoly on your patent. Society benefits from the open exchange of ideas and rewards you by giving you open access to the market.

In a lot of ways it's an open source idea. Just you have to wait 20 years or buy the rights to use the ideas before the patent is up.

Of course 20 years is an eternity in the software business.

I think the real solution is to go into patent law and sit around being exposed to cutting edge technology while helping your own bottom line.

Re:Patent everything. too expensive (0)

Anonymous Coward | about 15 years ago | (#1602031)

Few individuals could afford to "Patent everything". This in effect creates a monopoly on ideas by large corporations with legal resources. God Bless America.

Re:Excellent Piece (2)

dingbat_hp (98241) | about 15 years ago | (#1602032)

Excellent indeed.

So, how does this worthwhile piece stay preserved for all eternity, and somewhere it will be findable by future search engines. Is a basically transitory medium like Slashdot the best place, and is a script-driven site like Slashdot the best place to make it accessible (it's fairly webcrawler proof). Do postings like this need something more from the Slashdot mechanism ?

In California... (2)

vlax (1809) | about 15 years ago | (#1602033)

Here, any work you do that uses company resources can be claimed by that company. If you make something outside of your working hours on your own equipment it is yours, no matter what your contract says. That was settled years ago.

Non-competition clauses have no legal force in the state of California. You can quit and go into buisness competing with your former employer anytime you choose. You can also go to work for their clients or their competitors.

Many employers in California still include that kind of language in contracts in hopes of scaring you, but they are invalid.

In other states, most non-competition clauses are illegal, but circumstances vary from state to state. If your investions are your own and were not produced using company resources, I believe they are yours no matter where you live, but I'm not a lawyer - I just know my rights in California.

lawyers (1)

MillMan (85400) | about 15 years ago | (#1602034)

"To compound the silliness of all this, the courts have held that no one but a patent attorney can really know what the scope of coverage of a patent claim is. Therefore, even the theoretical justification for absolute liability in patent law is not applicable to individuals who cannot afford to keep a small army of patent attorneys on retainer."

Straight from the lawyers mouth, here he basically admits (the way I see it anyway) that money is more important than the truth. I suppose everyone knows that anyway. It's fun to see a lawyer actually point that out, however :)

The patent system needs a total overhaul. Some of the patents that I see companies receiving actually scare me, for different reasons. I can think of a few.

One is the patent discussed here just a few days ago, amazon.com's one-click ordering. This process is so obvious (and seems like a natural evolution) that I could have written it up myself. If I ever order from some other company that uses a similar technique, I sure don't want to pay the royalties to amazon that filter down to me in the form of higher prices, for a process that is hardly novel.

Another involves the mapping of the human genome. The last time I heard anything about this it hadn't yet been patented, and I can't remember which companies were trying for it. Just the fact that this was even being considered scared the hell out of me. Information that is contained in nature should NEVER be patentable, and I don't care how much the investors are spending to map out our DNA. The potential misuse of this patent is staggering. This has no direct relation to OSS, I'm simply trying to point out how bad the patent system is.

This leads me to a question, actually. The idea of patents AFAIK is to promote ingenuity. However, this assumes that the main motivation of inventors is money. Are all people that shallow? Has any OSS been patented? Maybe it's obvious that the answer is no, because of the nature of OSS liscensing. On the other hand, if no OSS software has been patented, and some other company, say microsoft, comes along, and adopts some chunks of code for its own use....would this generally upset people in the OSS community? Or is any improvment in microsoft's software viewed as a Good Thing?

Open Guerrilla Source (1)

Sorklin (88002) | about 15 years ago | (#1602035)

Baring a change in Patent law or another solution presenting itself, our future is very bleak. Some have suggested a software patent repository group that keeps all its member's patents in order to fight this trend. I see something else making its way in the midterm future. Open Guerilla Source. How I see it is that OSS continues in the vein that it has been going, until the first major patent hurdle. After the outcome (which I don't think would be good), a new pattern emerges. Based on the crack culture, OS Hackers would shroud themselves in mystery (just think -- 'this update released by Kaptain Kernal') and release code updates in a hit and run manner. Maybe a few FTP sites in less restricted countries would be the place to find your updated code. Basically the abuse of patent law gives birth to a larger illegal underground who are *really* fighting for freedom. Freedom of code. With no one to sue, the patents are rendered defacto dead (another good pseudonym in my opinion).

Re:Is there a lobby for influencing patent law? (1)

Jobe_br (27348) | about 15 years ago | (#1602036)

The only potential problem I see with this is the initial cost of the patent as well as the cost of the intellectual property lawyer (patent lawyer) to write up your patent and go through all the gymnastics to get it submitted.

Btw - does the concept of Open Source Software need patenting? Just a thought ...

Thank you again, Mr. Young, for this informative article!

Support for assertion? (1)

whuppy (33165) | about 15 years ago | (#1602037)

". . . the courts have held that no one but a patent attorney can really know what the scope of coverage of a patent claim is."

Please provide a citation to support this interesting assertion. Thank you.

Open Source helps fight stupid software patents (1)

agravaine (66629) | about 15 years ago | (#1602038)

It seems to me that the Open Source movement is one of the best vehicles for maintaining sanity in software patent law. Here we have tons of source code for: operating systems, compilers, multimedia apps, etc, etc, available for public searching/indexing. This is, in effect, a huge, worldwide library of prior art!

Just imagine: ten years from now, some dinky startup company may get sued by for infringement on some 'obvious' color blending algorithm, and they can go to court and possibly get the case (and the patent) thrown out by demonstrating that the exact same algorithm was used way back in 1998 in release 1.2.17.42.11 of the GIMP [www.gimp] !

As such, it seems to me that someone could make a valuable (if not exactly glamorous) contribution to the open source world by creating a repository for old versions of stuff, to ensure that, ten years from now, the source code to version 1.2.17.42.11 is still available, with some system of time/date-stamped hashcodes to verify the date of 'invention.'

Any thoughts?

the standards are really low (1)

Anonymous Coward | about 15 years ago | (#1602039)

At my last job, we were filing for patents on stuff for which there was obviously prior art so that we could build a defensive portfolio. Heck, one of the guys I worked with holds patents on "Computer Hardware" and "Computer Software" which he received at a previous employer.

The reason you can get away with this is that the standard of obviousness is basically zero. The legal system credits inventors with being too smart to understand that their invention isn't an obvious extension of prior art. The patent lawyer is the one who makes that decision and s/he gets paid more to write a patent.

Combine this with patent officers who are less technical than the patent lawyers (a scary thought) and the result is unsurprising. Some slashdotters should probably give it a try sometime, you'd be surprised at what you could patent.

Actually, maybe that would be a solution for the FSF. Just file patents on all the algorithms they want to use (even if they are already patented) and then write the code they want to write. I'm willing to bet that 99% of their applications would be accepted.

Another way of Open Sourcing patent (1)

wendy (42400) | about 15 years ago | (#1602050)

Since patents can be invalidated based on the existence of prior art -- someone has already described what you claimed -- another way to preserve software openness is the simple publication of the code, along with perhaps a broader description of what it does and how. Making these references easily available would help stop the patent office from granting patents for non-novel claims and help challengers in fighting overbroad/invalid patents.

Common sense dictates... (0)

Anonymous Coward | about 15 years ago | (#1602051)

...that there should be separate patent laws for intelectual property. The problem is that patents are really designed for physical manufacturing, but software is essentially just ones and zeros.

As long as companies are allowed to patent intellectual property with the same set of rules that apply to say, a microwave oven, I don't think there's anything that can be done than hope you don't get sued. It should be treated differently, since software is a different kind of commodity that was probably never envisioned when patent laws were put into place.

But I can't sit around and say, "they should..." all day, cos there's too much they should do. Besides, I have to get back to my working on my own patent, whereby a user uses a rolling input control ("Mouse") on an internet enabled computing device ("PC") to manipulate ("Click") a visual representation of a button ("Button") to perform a specific task ("Submit") that enables any other individual using a similar computing apparatus to view this electronic submission ("Post").

Re:Software Patents. (1)

Psychofreak (17440) | about 15 years ago | (#1602052)

Software is buildable. It can exist in the firmware sense(BIOS, hdd controllers..), which is just that it is coded into a chip, or the hardware sense, where it is actually burned into the chip (old BIOS), or the software is somehow otherwise encoded onto a device, then the patent is on the device containing the said information and the said information. It is stated as such in the article. I also have read a lot about algorithms being patentable, which is more reasonable when you have a large comprression algorithm that took a team a few years to develop. I don't entirely agree with the patentability, but it is more reasonable.
I would look for the algorithms as the preceddents for starting the ball rolling along with firmware/hardware type stuff. I'm not a law student, so it's not my field, but these are my guesses.

Re:Excellent Piece (1)

omarius (52253) | about 15 years ago | (#1602053)

I second your bravuras. This article is two things: 1)Very interesting and informative, and 2)An excellent example of why I think the Open Source movement is so strong: diversity of expertise. In what other forum can a bunch of geeks gather and have one of them raise their hand and say, "hi, I'm an intellectual property lawyer, I could tell you about this. . ."?

The Open Source movement has much more than momentum and media going for it right now. It has proponents who are experts in their fields -- Technical Communicators and Lawyers and Designers and Artists as well as programmers, sysadmins, and engineers. And I think it's right fantastic, myself. If we can keep together and remember to ask for help when we need it, Open Source will keep rolling no matter what the media -- or Mikrosovt -- have to say about it.
Omar.

Re:Patent everything -- nice but futile idea (2)

CheapVerbiage (47207) | about 15 years ago | (#1602054)

If your patent is rejected, great! That means no one else can patent something so obvious.

Unfortuantely, no, if your patent is rejected, it only means that someone else can go patent it by using more convoluted language (legalistic BS). In fact, even if your patent is accepted, someone else could patent it again next year, or after ten years, just by using different language, thanks to the PTO. The real problem is that the system is designed to serve the interests of lawyers (perhaps because the President is one such person?) rather than technology and the economy (which it seems designed to undermine in any way that it can).

Still, I agree with your fundamental suggestion. Launching a patent crusade to save the software profession is a laudable idea. What I see as unfortunate is that no volume of patents will protect us when it is so easy for BS artists to file frivolous lawsuits against people of limited means.

Re:goddam lawyers (0)

Anonymous Coward | about 15 years ago | (#1602055)

I will try t find the page...but I read at a gov watchdog's website that listed the jobs of congresmen that something like 40% of Congress (both houses) are lawyers.

-paul

My god. It's worse than I thought. (1)

bkeeler (29897) | about 15 years ago | (#1602056)

I propose the formation of an organization.

Said organization would be a coalition of free software developers. It would do the following:

  • Assist free software developers in applying for patents,
  • Take custody of those patents,
  • Sue the heck out of companies like Microsoft whenever they violate the patents,
  • Use the proceeds of said lawsuits to fund the application for new patents, and also to defend developers of free software if they get sued for infringement
Fight fire with fire!

Re:Patent everything. (1)

Matrix42 (70365) | about 15 years ago | (#1602057)

Patent everything? That's a great idea, if you can afford it. There are still two factors that you're ignoring:

  1. Patents cost money. You want to patent the use of the middle mouse button? Go for it...except it will cost you over a thousand dollars to try, and your chances of actually landing the patent are close to nothing.

  2. Lawsuits cost money. So what if you've patented the middle button? MS will just come out with a product whose features are accessed with the middle button, and what will you do?
    • Ignore them. In this case, why did you spend the money to get the patent?
    • Write them scary letters. Good luck.
    • Sue them. If the patent is found to be unenforceable (which it likely would be, in such a case) you're now out another ten thousand dollars or so.

In short, while the idea of all OSS advocates patenting their inventions is a nice one, it's doomed to failure because of economic concerns.

-- Jarom Lechner

Don't f**k the system. You might catch something

Patent-Lefted (0)

Anonymous Coward | about 15 years ago | (#1602058)

What we need is an organization that Patent-Left's things just like we "Copy left" things.

"This algorithm is Patent-lefted. This means the use of this algorithm or derivitaves of this algorithm may not be restricted in any way."

Then say we Patent-left things like compression algoritions(gzip,bzip2), ...

If parts of Mpeg were patent-lefted, The whole mp3/mpeg2/DVD mess would/could not exist.

Re:While we have an IP attorney around... (1)

ufdraco (78193) | about 15 years ago | (#1602059)

Merk, this is going to sound like a real cop-out, but as Stephen Young said: when it comes to legal advise, you'd be best off talking to a lawyer (since our legal system seems to feel they are the only people capable of understanding law anymore).

That said, best of luck to you.

Re:A question (1)

taniwha (70410) | about 15 years ago | (#1602070)

no! do publish - and include lots of wonderfull examples of practical uses of your algorithm - by doing so you invalidate any future patents on the same idea

I suspect publishing is to patents as GPL is to copyrights :-)

No, make prior art instead (4)

Tim Macinta (1052) | about 15 years ago | (#1602071)

That's a bit impractical for a couple reasons. First off, patents cost money (on the order of $10k a piece) and take time to file. Attempting to patent everything would take a lot of money and a lot of time. If you're willing to do this, more power to you, but it's not something I would expect anybody (other than a large company with ulterior motives) to undertake.

Secondly, while holding a patent on something theoretically prevents somebody else from patenting the same thing, this doesn't hold true in practice (due to the general ineptness of the patent and trade office). If I remember correctly, there were two nearly identical patents issued for LZW compression, one to IBM and one to a company that would later be bought by Unisys. IBM was nice about it and allowed people to freely use LZW compression, but Unisys was not so nice and that's why we're in the mess we are today with GIF images.

It seems to me that a better strategy would be to create as much prior art as possible. If it doesn't save you the time and effort it takes to patent things it will at least save you the $10k per patent that would kill most people. It would also be a lot more impressive to build actual programs than to stoop to the level of companies like priceline.com [inc.com] and try to extort the patent system.

Re:Patents & Open Source (0)

Anonymous Coward | about 15 years ago | (#1602072)

I've recently been thinking about something like this. Those in charge at the small Internet software company where I work have recently been rumbling ominously about software patents, and they've caused me to wonder whether there's a better response than the obvious hostility.

Perhaps what is needed is an Open Patent Agreement, with a similar viral nature to the GPL. It could work like this: companies and individuals can sign up to the OPA, which states that all patents they own are licensed free to companies and individuals who own either (a) no patents, or (b) only OPA patents.

This would allow all the right-minded people who think patents are a Bad Thing, to carry on coding and publishing for free as usual, while forcing companies and individuals who don't fancy the OPA, to the negotiating table for Intel/DEC style cross-licensing agreements.

Anyone with legal training (in the US or elsewhere) got any comments?

Peter Hartley, pdh@chaos.org.uk

Let's all move to Slashdania (2)

meersan (26609) | about 15 years ago | (#1602073)

Let's all move to Slashdania. I've seen people post similar things on Slashdot before, but it's such a good one I think it bears repeating ;) And with all the Neal Stephenson reviews lately, it's been brought to mind again.

Imagine -- our very own technologically-oriented geek-phyle.

Pros:

  • No more overwhelmingly reprehensible government-driven Big Brother-style censorship -- first it was the CDA, then the Son of CDA, now post-Columbine hysteria
  • Get rid of completely horrid marketing-oriented privacy invasion -- spam, identifiers hidden in sw/hw, profile-selling
  • An escape from all this mind-bogglingly disgusting patent nonsense. Bleargh.

(Any synonyms for 'yucky' I forgot?)

Cons:

  • Location. I'm sure one of us has an island in the Bahamas stashed away, any donations? :) Antarctica is kind of cold this time of year.
  • Internecine civil warfare over OSes, window mgrs, languages, etc
  • Geeks tend to be loners more interested in techtoys than governing -- be suspicious of anyone who can't 'show you the code'. Somebody has to collect taxes, and I'm afraid I'll be too busy drooling over my new Athlon.... Inevitably, the whole thing would probably be taken over by PHB-types masquerading as wannabes. And we'd have to start all over.
  • Somebody needs to come up with a better name :P

Worth wishing for, I suppose.

You might say I'm a dreamer... but I'm not the only one....

Ouch (1)

vlax (1809) | about 15 years ago | (#1602074)

I looked at your example.

It looks like they're trying to patent any use by a computer of methods for generating a belief netowrk or minimising the number of variables in it. (Although the patent is so vague I can't be sure - it's just a bunch of flowcharts. Most of the descriptions apply to standard methods of doing Bayesian learning.)

I'm not sure, but I think this means my CS homework last year was in violation of IBM's patent.

That is depressing.

Statutory Invention Registrations (0)

Anonymous Coward | about 15 years ago | (#1602075)

If your patent is rejected, it doesn't get published. which means someone else can then try to see if they can get a patent on it.

What you want to do is file a statutory invention registration. This is (in the US) a filing with the patent office which legally declares something to be known at the time it was filed. The patent office publishes these and they can be used as evidence against the validity of future patents.

Re:goddam lawyers (1)

tallpaul (1010) | about 15 years ago | (#1602076)

Hey, FWIW, it is my understanding that most politicians *are* lawyers.

Re:I am appalled... (0)

Anonymous Coward | about 15 years ago | (#1602077)

I believe the author was saying just as much himself, but in a broader sense that the entire patent system works against the original intent. The main point is that it is risky for the person inventing to actually look at other patents thereby removing all value they may serve to the people it was intended to serve. The only people who can without worry look at patents are patent attorneys, so that particular species of leech are the creation of the flawed system. The saddest thing (other than that this has been going on for years and now the lawyers are firmly entrenched) is that even a judge would be of the opinion that you as an inventor can not make descisions about patents you read and to strengthen that belief make the penalty higher if you attempt to do so. Where ignorance is no excuse at the same time that information can incur higher penalty. I believe patent lawyers have created for themselves the most beneficial (to them) job security.

Re:A question (1)

vlax (1809) | about 15 years ago | (#1602078)

Thanks, that's what I was afraid of. I guess I have to find a different algorithm to do that kind thing.

I remember the good old days, when if something appeared in academic literature, you were safe using it. This is really going to kill research.

Re:I am appalled... (0)

Anonymous Coward | about 15 years ago | (#1602079)


I believe the author was saying just as much himself, but in a broader sense that the entire patent system works against the original intent. The main point is that it is risky for the person inventing to actually look at other patents thereby removing all value they may serve to the people it was intended to serve.

The only people who can without worry look at patents are patent attorneys, so that particular species of leech are the creation of the flawed system.


The saddest thing (other than that this has been going on for years and now the lawyers are firmly entrenched) is that even a judge would be of the opinion that you as an inventor can not make descisions about patents you read and to strengthen that belief make the penalty higher if you attempt to do so. Where ignorance is no excuse at the same time that information can incur higher penalty.


I believe patent lawyers have created for themselves the most beneficial (to them) job security.

How about an "anti-patent" organization (1)

jms (11418) | about 15 years ago | (#1602080)

Hmm. I (half seriously) propose the establishment of an "anti-patent" organization. Call it "AntiPatent, Inc."

AntiPatent would be funded by a consortium of software companies and individuals who have an interest in a patent-free software world.

The purpose of this public interest organization would be to take out as many legitimate, broad patents on computer software as possible. In the current patent office environment, this may not be very hard at all. It would also seek out donations of software patents, much as the FSF seeks out donations of source code.

The goal of AntiPatent would be to make it impossible for anyone to write computer software without infringing the AntiPatent Inc. patents.

Then, AntiPatent would turn around and offer to license these patents under the following terms:

All AntiPatent patents may be licensed by any person or organization freely and without charge.

However, the instant such person or organization brings litigation against any other person or organization, claiming infringement of THEIR patents, all licenses to AntiPatent technology will be immediately revoked.

License to AntiPatent technology may only be restored by the litigating organization or person by that organization or person agreeing to license the patent in question, free of charge, to the allegedly infringing person or organization, and paying all legal expenses brought on by the litigation.

In other words, similar to the GPL, AntiPatent turns the idea of patent law 180 degrees, and uses the coercive power of patents to promote freedom of innovation, as opposed to the patent "land grab" that is going on now.

Comments, anyone?

- John Schulien
jms@uic.edu

You misunderstand (0)

Anonymous Coward | about 15 years ago | (#1602081)

. . . "legal fiction" is a legal term with meaning. It's not just a fancy way of saying "fictional".

So Mr. Young was completely correct.

Re:A question (1)

vlax (1809) | about 15 years ago | (#1602082)

The patent hasn't been published anywhere where I can find it. It wouldn't surprise me if MS tried to patent any use of the algoritm in decision support. The algorithm has been in use in decision support for years. If MS can keep a patent just for help systems, I can live with that.

Re:Can you beocme a patent lawyer easially? (1)

sethg (15187) | about 15 years ago | (#1602083)

My wife has a Ph.D. in chemistry. When she was looking for a job, she learned that some law firms will hire Ph.D.'s as assistants (I don't know the formal job title) to help their lawyers prepare applications and the like, and then pay the Ph.D.'s way through law school. You can get a similar job if you have a master's degree, but you might have to pay your own law-school bill.

Re:Patent everything. (1)

Znork (31774) | about 15 years ago | (#1602084)

Such defensive patenting is already done. Those companies who recognize the fact that the patent system is completely broken and out of control (Oracle, I think, recently made a statement to that effect) still have to defend themselves against patent lawsuits from other companies. All the larger corporations are either the bad players or forced to pull guns too, and point them at eachothers heads so they have a standoff (patent crosslicensing).

A similar approach from the free software community would be to obtain several broad patents on various things of use to almost all software companies (how about 'slashdot effect' as 'method for bringing massive amounts of viewers to your webpages'), and then have the patents controlled by a trusted party. If anyone threatens a free software project, simply counterfile patent violations over those broad patents to get them to back off.

Its the Mutually Assured Destruction of the software world. Wether that is a good way to keep peace or not is debatable. It would be a lot better if the entire idea of software patents was wiped; software has much more in common with works of art (copyrightable) than it has with invention. And invention in the software industry is not the least affected positively by patents, rather it is reduced.

is OSS at risk for "patent extortion"? (2)

tuffy (10202) | about 15 years ago | (#1602085)

I doubt it. Take the infamous GIF format. Once Unisys decided to crack down on their patent, OSS shifted very quickly to the PNG format instead for lossless images. Just as OSS can be fixed very quickly when bugs appear, it can also be modified in the case of a "legal attack". Is any major corperation going to spend the $ on a target that can move itself into compliance so quickly - or for so little monetary gain? OSS doesn't exactly offer a treasure-trove of wealth to be exploited.

And if someone should bring out the full-frontal-assault of patent litigation, wouldn't big Linux-backer corperations work to its defense? I wouldn't want to get into a legal tangle over patents with someone like IBM - with its big Linux investment and hoard of patents.

Just a few thoughts...

two questions : (0)

Anonymous Coward | about 15 years ago | (#1602088)

- Is there a way to officially state your opinion that the patent system should be reformed or abolished ? If everybody could officilly say they no longer want the current patent system. Politicians during election time are bound to draw some conclusions of this. - Some companies (Oracle, Adobe, ...) have released press releases in which they said they no longer want the patent system, because it hurts them more than it brings them. Isn't it possible that if a battle was fought against the patent system, some big companies could spring in with legal aid, as a public affairs kind of deal ? Also I don't believe there are that many big companies who are really in favor of the current patent system. Think of it : who is a patent owner going to attack ? Answer : the one who has a lot of money !!! But not too much money of course, or the patent might become overturned.

Re:While we have an IP attorney around... (0)

Anonymous Coward | about 15 years ago | (#1602100)

Although some companies have clauses in their employment contracts that you can't work for another company in the same field, work for the company that your company has a contract with, it is non-binding. I know of a few people who have been sued by their previous employers for this and the previous employer lost! The reason is that 1) you can't prevent a person from being able to earn a living, 2) any knowledge or skill learned at that employer is not their property. There are alot of states that have "Right to Work Laws" that were implemented to prevent this. So! this is just a scare tatic employed by companies to try and keep you loyal to them and at their mercy.

That is Copyright law (1)

TheCarp (96830) | about 15 years ago | (#1602101)

There is *NO* reverse engineering law (yet)
Theoretically it goes like this:
Reverse engineering software is covered under
"Fair Use" (copyright law)

However if you reverse engineer, then write
your own version...they can claim you just copeid
them or that YOUR code is a derivitive work
based on theirs.

So the idea is that YOU reverse engineer and just
document the general concepts and flow (no actual
code)

Then you hand your document to person B who
has never seen the code just your document
(this is the clean room...he has not been
"Soiled" by seeing the code) so since he
never saw the original code...he can't be
making a derivitive work based on it.

It all rests on copyright law.

Re:Patent everything. (2)

ucblockhead (63650) | about 15 years ago | (#1602102)

Ignore them. In this case, why did you spend the money to get the patent?

Precisely so you can ignore them!

Anyway, anybody have a good idea how much it costs merely to file? There are, what, 10,000 or so open source coders. If each one spent a couple hundred bucks to patent just one...

You wouldn't necessarily have to sue anyone else. Instead, the patent would merely be a defense against someone else suing you. It would also be evidence if they sued a third party.

In other words, suppose I have an application that uses the middle mouse button. Now suppose Microsoft patents the middle mouse button use. Then, they see my program, and sue. Aren't I better off if I have a patent? Sure, it costs money to defend myself, but I'd have to without the patent.

A more likely situation would be for Microsoft to sue Corel for their middle mouse button application. In that case, couldn't I merely tell Corel about my patent and let them worry about the rest. It would cost money, but then, they'd have to spend it to defend themselves anyway. This would merely boost their odds.

(Admitedly I know next to nothing about this subject. Consider this brainstorming.)

Re:While we have an IP attorney around... (2)

doom (14564) | about 15 years ago | (#1602103)

The only direct knowledge that I have is for
California, which is supposedly a "right to
work" state, and it has laws that obviate a lot
of the "non-competition" crap that gets put
in employee agreements.

My personal experience with these things is that
a lot of them are scarecrow agreements. The
lawyers throw lots of intimidating shit into them
that they know is unlikely to stand up in
court, because they figure they've got nothing
to lose by trying to con you.

The only company I've seen with a reasonable
employee agreement is SGI (which actually
volunteers to tell you about some of the laws
that protect employees).

As it happens, I've got a copy of one here. At
bottom it says:

California Labor Code Section 2870

a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment supplies, facilities, or trade secret information except for those inventions that either:

1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer.

2) Result from any work performed by the employee for the employer.

b) To the extent a provision in an employment agreement purports to require any employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.

Some clarifications (5)

Chuut-Riit (48419) | about 15 years ago | (#1602104)

I too am a patent attorney and a regular slashdot reader, and commend Mr. Young for taking the time to write an excellent and informative article. I have some different viewpoints on some of the issues that he addresses, however. I also have some suggestions as to how the open source community can help with this problem. As with Mr. Young's comments, none of this is intended as legal advice.

First, no lawyer that I know (and I know far too many) would counsel their client to avoid becoming familiar with the patent situation in their field in the hope of avoiding getting tagged for willfulness. Most lawyers and their clients vastly prefer to deal with these situations by evaluating the patent and either (1) getting a clearance opinion in place or (2) trying to negotiate a license.

Second, mere knowledge of a patent is not the touchstone for determining willful infringement (and therefore for determining increased damages). The situation is much more complicated, involving a highly factual, "totality of the circumstances" approach to the question of whether the alleged infringer (a) respected the patent rights of others by (b) developing a reasonable, good faith belief that their product/service did not infringe.

Third, the situation for those innocently infringing is made worse by a poorly defined legal doctrine known as the "doctrine of equivalents." Basically, this doctrine allows a court to find infringement even if the device/service is not strictly within the scope of the claims, but contains changes that the plaintiff's attorneys can convince a judge or jury are "insubstantial."

The whole situation is a nightmare for software developers who don't work for large corporations with in-house legal staff. One big problem is tha t most of these software patents are probably invalid, but once granted are presumed valid by statute. It is extremely difficult to get one of these things invalidated once it has issued.

Open source software has the potential to be an enormous boon in resolving this problem. One of the major issues faced by the patent office is the inability of the patent examiners to adequately search the prior art, because they don't have access to much of it. Having source code publicly available is an important first step in addressing this problem. Making the patent office aware of it is the next step.

There already exist some organizations that put out calls for prior art to attack particularly notorious software patents, and slashdot readers are probably already familiar with them. Their efforts should be assisted and lauded. However, a more fundamental approach with greater long term benefit to the public is to make the patent office aware of what has been done in the industry in the past, so that they can integrate this prior art into their search and classification system, making it accessible to examiners who issue these patents, and hopefully preempting the hijacking of some of these algorithms, software, etc.

A possible simple solution. (0)

Anonymous Coward | about 15 years ago | (#1602105)

Make patents non-saleable (but still lease-able) and non-transferable. That way at least the inventor will retain some control and the BFC's (big corporations) will have less control.

Perhaps make the longest lease term legally limited to five years. The inventor has an incentive to have and patent good ideas, the corporation has an incentive to fund the inventor and lease the patent but cannot completely wrest control from the inventor.

It definitely seems to me that there is little incentive for the individual inventor to patent his/her ideas (financially prohibitive, very risky and time/energy consuming) - heck with the current system why bother coming up with new ideas unless you have a corporate sponsor with very deep pockets.

Re:Is there a lobby for influencing patent law? (1)

Bolero (67403) | about 15 years ago | (#1602106)

I may be wrong (IANAL), but this is how I understood the article that Mr. Young wrote.

If you publish the code of your software a year prior to the attempt of another person to patent that same code, the patent would be invalid because of the exsistence of the code available to the public well before the application of the patent.

If I am not wrong, then all Open Source Software that has been available to the public for more than a year will be safe. But what I also gathered is that when a patent is applied for, you must show the patent office proof that the person applying for the patent is not the first to come up with this "novel" way of doing things.

Use Google (0)

Anonymous Coward | about 15 years ago | (#1602108)

I've found that Google [google.com] returns a lot of /. articles.

A possible ray of light for Open Source? (2)

Jack William Bell (84469) | about 15 years ago | (#1602110)

First off, excellent article and many kudos!

There are several things I find very troubling about patent law, as I understand it and as it is portrayed in the article. First off, the views of both the Patent Examiner and the Patent Lawyers are held by the court to hold more weight than those of an engineer with practical experience. This means that the only experts whose opinions carry any weight are experts in the Patent laws, not in the things being patented!

Secondly, the following quote: "...lawyers routinely advise their clients to avoid reading patents in areas they are working in. The danger posed by the willful infringement doctrine is seen as outweighing any benefit that can be gained from reading patents. This state of affairs, of course, negates even the theoretical benefit of the patent system, that the public at large learns about new technology once it is patented. As it stands, the people who should be learning from patents in any given field are the same people who stand to lose the most if they dare to take a peek."

As the author of the article points out, this behavior tends to obliviate the intent of the patent laws, which are to protect the rights of the inventor while allowing the inventor to share the process. Although it isn't explicitly stated, it seems obvious the author agrees with many of us that the patent laws, as they stand, are broken.

But there does seem to be one important ray of light for Open Source here. Basically I refer to the statement that prior art can consist of anything 'published'. Open Source Code is published, or at least I would tend to believe it is published. Please correct me if I am wrong, but is it not possible to fight a Patent Infringement suit by simply pointing out that the code in question was 'published' before

the patent was applied for?

Of course this still means an Open Source developer might be liable for algolrithms used after the patent was applied for, but then what? How do you collect royalties from something distributed for free? The patent holder would be forced to prove a 'loss' due to an inability to sell their product, something that might be rather difficult to do.

Jack

Isn't the patent system unconstitutional ? (0)

Anonymous Coward | about 15 years ago | (#1602112)

But then again, when have you heard of something unconstitutional being abolished ?
It's not like free speech is a reality.

Whoa (0)

Anonymous Coward | about 15 years ago | (#1602120)

First, that was a great article, and I'm *really* pleased that it appeared in Slashdot.

Second: I think I'm just gonna go cry. It all sounds so outrageously corrupt. What's worse, it's completely unfixable -- there are too many vested interests at stake. And when was the last time you heard of a judge having half a brain, anyway? May as well give up on the concept of appealing any patent decision . . .

A question (2)

vlax (1809) | about 15 years ago | (#1602121)

My interest is specifically in the patentability of software algorithms. There are two specific cases I have in mind: Google's PageRank algorithm, and Microsoft's patent on Bayesian networks.

Google's algorithm is to some extent described in on their homepage. (At least the core of it is - it doesn't actually respond exactly the way it should, but close enough in most cases.) It uses several well known algorithms to rank web pages. Can such a patent actually cover the use of a common algorithm like theirs to rank web pages? Am I thus forbidden to use link networks at all to rank web pages?

Secondly, Microsoft, a number of years ago, apparently independently rediscovered a mathematical construct called a Bayesian network, which now forms the heart of Microsoft's help system. As I understand it, they have patented this usage. Bayesian networks were first described 200 years ago, but can a patent applying them to computer support (or perhaps to other applications - I have not been able to obtain a copy of MS' patent) be valid? Or does the claim of pre-existing art invalidate it?

I'm asking for some informed opinions. In case it's an issue, let me state for the record that I understand no one on /. is giving legal advise - what I do is my own problem.

Can you beocme a patent lawyer easially? (1)

bluGill (862) | about 15 years ago | (#1602122)

I've known a couple people without college educations (at least not in law) who have taken the bar, and are now lawyers in some specific area. I've considered doing that myself.

They all warn that the BAR is not an easy test, but if you spend time at your local library you can probably pass it. Where time is measured in months.

Anyone know more about this? Anyone done it? I've accually only heard this third hand, and one guy who was half way through his studies to take it.

Patents & Open Source (1)

andyturk (92537) | about 15 years ago | (#1602124)

Software patents are a bad idea generally. But they (I think) can also pose problems for people publishing/using Open Source code.

Would it be possible to create something an Open Source patent organization which could "own" and enforce software patents in the open source community?

There's got to be a lot of patentable stuff in open source--it just hasn't found its way to the PTO yet. If this organization charged license fees for non-OS use of the patented idea, it could generate some funds for itself.

Over time, there might be a large enough "minefield" of OS patents that it would become economically beneficial to put new code under the OS umbrella because you wouldn't have to pay the OS patent organization any license fees.

Imagine if instead of paying Unisys $5K to get legal for using .gif images, companies paid a similar amount to a non-profit Open Source patent organization? I think that'd be pretty cool.

I am appalled... (1)

Azog (20907) | about 15 years ago | (#1602126)

This was a fascinating article. I'm just disgusted by the whole situation, though. It's so obvious that patent law, at least for software, completely works against the original intent of the law.

But, it's good for big, rich, companies. So it's unlikely to be changed. Arrrgh.

Even worse is that it does apply to open-source software. I was previously unclear on that, but if I understand the article correctly, even if the programmer is anonymous or hasn't made any money directly off the software, people who use patent-infringing open-source software can be sued.

Yuck.

Torrey Hoffman (Azog)

Re:Excellent Piece (1)

mthiel (21378) | about 15 years ago | (#1602128)

I must agree, this was really useful information!

Independant Invention thingy (2)

Matts (1628) | about 15 years ago | (#1602130)

This misconception stems not from Copyright law, but from reverse engineering law where it is (was?) legal to reverse engineer a product if done in a clean room environment.

One thing I have to ask about your interesting article - how international is what you've written? What are the international implications? Some patent laws simply won't apply where a lot of free software is written and I'd be very interested to hear if it would be possible to sue someone in a different country for a patent that wouldn't be an issue in that country.

Matt.

perl -e 'print scalar reverse q(\)-: ,hacker Perl another Just)'

Is there a lobby for influencing patent law? (2)

Jobe_br (27348) | about 15 years ago | (#1602132)

Wow!

First off, thank you so much for this enlightening feature article! I think the author did an excellent job describing patent law in a way that all the IANAL people can understand (like me ;-))

Second - holy sh*@! It certainly seems that the way patent law stands at the moment is utterly useless. For all intents and purposes, a corporation could kill OSS simply by applying for and receiving patents for a large majority of software that is in existence. Granted - applying for a patent is expensive (something like $20,000?) - but the way large corporations throw money at Quad Xeon P3 550+MHz servers, a few grand here and there seems rather insignificant.

The only remaining question would be "why would anyone want to kill OSS?" Clearly if we have to stop writing free software, we won't be running to our nearest software store and purchasing a replacement ... what could a company hope to gain?

It certainly seems to me that if a lobby doesn't exist to get patent law changed, one should be started (I wish I had that kind of money or influence). I'd definitely throw in what I can to get patent law as it applies to pseudo-random sequences of 1's and 0's (software) nixed.

Something needs to be done - now that we have an idea of what patent law can do to us, what should be/can be done?

Patent everything. (3)

ucblockhead (63650) | about 15 years ago | (#1602134)

Perhaps it would make sense for those who worry about overreaching software patents to simply start patenting everything they can. I suspect that there is much open source software that could be patented if someone made the effort. So instead of worrying about whether or not people should have the right to patent what you've done, merely patent it yourself and then give everyone the right to copy your invention.

Patent Perl. Patent ELF. Patent RPM. Patent the use of the middle mouse button. Hell, patent Slashdot. If your patent is rejected, great! That means no one else can patent something so obvious. If it isn't, well, that's great too. It means that we can all use it without worrying about some corporate sleazebag doing it first.

(And who knows, slashdotting the patent office may get things changed.)

I wouldn't want to be a lawyer. (0)

Anonymous Coward | about 15 years ago | (#1602139)

I don't think I could stand to be a lawyer when the laws are muddled or corrupt. A lawyer is constrained to work within the law; as a mere lawyer, he (or she) can't change it. He can try to exploit contradictions in the law, to either his own or his client's advantage, but his opponents will only exploit the other sides of such contradictions. What can a just lawyer do when the law is unjust?

I am in favor of patent protection as an idea, but the laws described in this article constitute a faulty implementation of that idea. Patents are supposed to protect inventors from manufacturers who don't pay royalties, from re-inventors who would dilute the value of originality, and from lazy dweebs who patent glittering generalities and then file lawsuits to prey on real inventors.

My way to fix the patent system? Complex: Your patent, if approved, takes effect the date you filed it, regardless of how long it takes to process. All applications once received are posted and permanently made available on the Internet for public browsing. Patent numbers are not serial but are assigned by subject like the Dewey Decimal System. Prior art is anything prior to the instant you filed. Applications can be submitted electronically by anyone for a nominal fee (and withdrawn by the submitter later if needed). Etc.

Instead of a lawyer, I prefer to be an intellectual activist. Attack bad laws at the root: bad or missing ideas.

-- an Ayn-onymous Coward

Re:Linguistic Viruses (0)

Roundeye (16278) | about 15 years ago | (#1602140)

Look up the word "meme". This is nothing novel.

Establishing Prior Art - and - Why Patents?? (0)

Anonymous Coward | about 15 years ago | (#1602141)

First off, patents can be rejected on the basis of prior art. So someone can't, as was suggested previously, go out and patent, perl, rpm, etc. The "publication" of perl and rpm constitutes prior art over any subsequent attempts to patent them, or parts of them. (But not improvements to them)

In other words, you can only be sued for your software if you use someone else's patented, or patent-applied-for, material. When you publish your software, you are protected from subsequent patent applications. IT IS WORTH MENTIONING THAT YOU SHOULD HAVE AN ESTABLISHED, VERIFIABLE DATE OF PUBLICATION. It's also reasonable in this context to publish early and often, as is the norm for Open Source. This moves your publication date earlier, and your protection with it.

Why Patents?

Once upon a time, inventions were produced after a lot of sweat and perseverence - a substantial investment. The patent is supposed to give the inventor a reasonable opportunity to profit from his/her investment.

This has gotten completely out of hand.

While there are some patents that still meet the original mold, (I have at least one of these, produced after YEARS of experience, learning, and failure.) many are generated with next to no investment, other than the legal fees required. (Sad to admit, I have a few of these, too, though thankfully fewer than the other kind.)

IMHO this latter class of patent constitutes an abuse of the concept, and is where /. readers should focus their outrage.

Re:Can you beocme a patent lawyer easially? (1)

Kaa (21510) | about 15 years ago | (#1602142)

I've known a couple people without college educations (at least not in law) who have taken the bar, and are now lawyers in some specific area. I've considered doing that myself.

AFAIK, a long time ago it was possible for people to become lawyers just by passing the bar exam (that is, without going to law school). That is not possible now. You will not be allowed to take a bar exam unless you show a law degree. Law school takes three years, not speaking of money.


Kaa

Not exactly... (0)

Anonymous Coward | about 15 years ago | (#1602143)

They can't actually patent your work; they can patent an *application* of your work, but ONLY if you haven't metioned that application in your publication.

Re:Can you beocme a patent lawyer easially? (3)

ajakk (29927) | about 15 years ago | (#1602144)

As someone who embarking on the journey to become a patent lawyer, let me explain exactly what it takes to practice patent law.

There are two types of people who can handle patent work. There are patent agents and patent lawyers. To qualify as a patent agent, you must pass the Patent Bar Exam. A patent agent can perform all of the duties related to patent work except for litigation before a court. Patent lawyers have passed both the Patent Bar Exam and a State Bar Exam. Patent lawyers may litigate patent cases before the Federal courts.

The complications arise in the qualifications to take each of the Bar Exams. For almost all State Bar Exams you must have earned a JD or LLM from an accredited law school. To take the Patent Bar Exam, you must pass one of three qualifications.
1) Earned a BS in Engineering or a hard science(chemistry, biology, physics). Computer Science was recently added.
2) Have take 30 hours in chemistry, 30 hours in physics, of 40 hours in Engineering/chemistry/physics courses.
3) Be a certified Professional Engineer.

The patent bar exam is an open-book multiple choice test that has two 3 hour sections. It covers the rules and procedures of the Patent Office. The normal rate of passage is about 35%.

Doug Bridges

Re:Protocols, etc.. (2)

Thomas Charron (1485) | about 15 years ago | (#1602146)

I was thinking more the other way around, Aka, someone files a ptent in 1998. In 1999, someone uses a simular protocol. Panent is granted in 2000. Can the original submitter of the patent sue the guy who came out with an equivilent protocol in 1999?

A question for Steven: What now? (1)

asynchronous (98963) | about 15 years ago | (#1602147)


Thanks for the post. Now, I wonder if you have
any idea where to proceed? Certainly, efforts
to lobby on behalf of free cryptography, etc,
have been met with a fair amount of success.
Why not patent reform? There's a lot at
stake, but first and foremost is the stifling
of innovation. The question is, how? Amendments?
Lobbying? Write our politicians?

Thank You Mr. Young (0)

Anonymous Coward | about 15 years ago | (#1602149)

I also would like to take this opportunity to mention a couple innovations in public so nobody can get a patent on my amazing ideas :
  • the riding toaster
  • diesel-powered razor (although this was arguably inspired by an old episode of the muppets)
  • the number '3'
  • a combination fork, knife, and spoon called the "spnork"
  • hemos-hamster action figures (with kung-fu programming action)
  • hemos-hamsterpult and accessories
  • a sombrero that catches fire when a hidden switch is flipped
-k

Any *real* horror stories? (1)

sansbury (97480) | about 15 years ago | (#1602152)

Every time I read about software patents, I see lots of "worst-case" scenarios of what could happen, theoretically.

But does anyone know of any cases where ridiculous software patents (like Amazon's 1-click shopping patent) have actually been defended successfully, and someone has really suffered as a result?

My suspicion is that a lot of these companies doing the patenting are doing it because they're afraid someone else will patent their stuff first, and charge them money for their own ideas.

The rate of innovation in software is such that most patents would seem to be moot within 1-3 years. Could this be the case, or do such "method" patents make the scope so wide that a patent on, say, MS Word 3.0 would cover StarOffice somehow? Ick.

-cwk.

Algorithms (0)

Anonymous Coward | about 15 years ago | (#1602159)

This is nice and neat and all. However, it's too complicated for someone who has no idea of what you're trying to say understand. However, concerning algorithms: If someone has an algorithm that, let says draws an image a certain way. And they patent this algorithm. Can you legally devise an algorithm that is not related to the first, that accomplishes the exact same task? Or is this illegal and infriing the patent?

Re:goddam lawyers (0)

Anonymous Coward | about 15 years ago | (#1602160)

The politicians that make the stupid laws that lawyers take advantage of. Lawyers are just the effect. Politicians are the cause.

Protocols, etc.. (2)

Thomas Charron (1485) | about 15 years ago | (#1602161)

Are protocol specifications also patentable? Aka, can someone patent the idea of using TCP/IP to transfer data in a tag based language, such as XML?

Or even more broad, patent something like XML-RPC, etc?

Re:Can you beocme a patent lawyer easially? (1)

troyboy (9890) | about 15 years ago | (#1602162)

One problem: To become a patent attorney/agent, you must pass the patent bar, which requires that you have a degree in a science/engineering field.

Re:A question (2)

Lord of the Files (10941) | about 15 years ago | (#1602163)

The bayesian networks thing sounds like the situation is similar to that of RSA. RSA is based on a theorem in number theory that had existed for years before RSA was patented. But the RSA patent simply covers applying that theorm to cryptography on the computer. It was patentable because it was an application that no one had tried before. MS may be claiming the same thing with bayesian networks - that they were the first to apply them to computers.

Patent lawyers as engineers .... (2)

taniwha (70410) | about 15 years ago | (#1602164)

I have been involved in the writing of a number of patents (probably too many) - to the point that I can almost bash one out by myself :-(

One thing I've noticed is that the patent lawyers come at the problem from almost an engineer's point of view - they are trying to solve a tricky problem in logic - they are programming it in their own programming language 'patentese' - it has the ability to create things that are almost variables (refer to something by a specific name then refere to it later with the exact same name preceded by 'the'), arrays 'the first XXX', 'the second XXX' etc etc and subroutine calls (refering to previous claims recursively). To make things worse some simple things like 'and' and 'or' seem to have mutated to their own meanings.

Of course it all belies that whole concept of patenting something which is in exchange for 'describing an invention to the public'. I wonder if anyone's ever tried to have a patent overturned because it wasn't described in a manner that the public (ie. the engineers who were supposed to read it in order to avoid it) could understand? A case like that would upset a lot of applecarts :-)

Finally, even though I have a bunch of patents, I think that this patent frenzy is crazy - it completely debases what a patent used to be - all of my patents together probably wouldn't come close to the equal of one patent of Edison's.

While we have an IP attorney around... (4)

Merk (25521) | about 15 years ago | (#1602165)

First let me say that was a very informative an interesting article. But while we have attention on IP law, allow me to branch the discussion.

One issue that has been bothering me lately in regards to IP law is the matter of contracts signed with an employer that gives them very broad powers.

When I signed up for my current job I was somewhat desperate and wanted a job quickly. I didn't expect to be around long and because of that I signed away some rights I probably shouldn't have.

The documents I signed included one containing non-competition clauses (I can't work directly in the same industry for some time when I leave, and can't go for work for one of our clients). They also included documents saying that any ideas I came up with on company time were theirs, and any ideas I came up with not on company time, but relating to company business were also theirs.

Lately I've been doing some contract work with another company outside of work hours (with the knowledge of my main employer). Since I'm doing a lot of unique and interesting things with this job I've been wondering if I might get in trouble. I'm not really worried about the non-competition clauses since the work is very different, but I am worried about the IP issues. If I come up with something while doing this outside work, can my employer force me to cough up the invention / idea / whatever?

How legal and enforceable are non-competition and "we own your inventions" type contracts? And if they are fully legal and enforceable, what, aside from quitting, can I do to reclaim some of my rights?

PS: Sorry this is all worded very vaguely but I don't have the contracts readily available now so I can't currently give the exact wording. (but I can find them if it really depends on the exact wording)

Okay, here's a question... (1)

Surazal (729) | about 15 years ago | (#1602166)

Suppose I, as an independent software developer, release a free software project under the GPL. How do I insure that my ass doesn't get sued into oblivion (with my income that wouldn't take much) if some algorithm I use infringes on, for example, one of IBM's patents. Am I even capable of even defending myself even if the patent was easily proven as invalid? What happens when the patent is enforcable?

While this document was enlightening, I get the wary feeling that I'm going to eventually get screwed over sooner or later, thanks to our government's brain-dead patent policies. What are the solutions? Can I cover myself for liability purposes, or am I going to have to depend on the whims of some faceless corporation and the supposed expertise of patent lawyers? Hell, what if I can't even afford a lawyer?

This is troubling for me, because to me it says "Say goodbye to your hacking days; everywhere you'll turn you're gonna run into a patent and get screwed". What can be done to keep the hacking culture alive and keep it from stifling because of the paranoia induced by potential lawsuits for something you didn't even know was a problem the day before? Can anything be done at all?

A Few Clarifications on Patent Law (4)

doogieh (37062) | about 15 years ago | (#1602167)

I believe it is a little worse than Mr. Young lets on.


(1) Especially in university or early open source development, you are still liable for infringement EVEN IF YOU DID IT FIRST. While you think you'd be protected as a "prior user," this isn't well established. Congress is passing legislation that will allow corporations to use this defense, but make it difficult for universities or individuals to apply it: if you sell your invention after the other entity has patented it, you are still liable. [This is the American Inventor Protection Act of 1999.]


(2) It isn't just patents coming out tomorrow that are an issue. There are thousands of patents in the PTO covering software and internet uses people think are in the public domain. This "land grab" covers business methods, algorithms, and a number of areas previously thought unpatentable.

(3) For technical reasons, a patent can conceivably cover something you've done for a long time. If you've done X for years, and a patent claiming only Y in it's "written description" comes out, you shouldn't be an infringer. But if the patent arguably includes X in the claims, you shouldn't be an infringer but may very well be adjudicated as one. Your previous practice would only be a defense under particular circumstances (i.e. it was published)

(3) I think we need a patents and general intellectual property HOW-TO group. Anyone out there interested in putting together a basic explanation of patents, trademarks, copyright, and software/internet for /. style reader, let me know.

Re:Patents & Open Source (1)

z4ce (67861) | about 15 years ago | (#1602168)

That would be all good and stuff, but you are forgetting this is a big peice of what opensource is all about. Keeping things free. If they would want to have their knowledge restricted they would get a closed-source license. However, they wish to spread their source and have it improved on.

Re:Protocols, etc.. (1)

Lord of the Files (10941) | about 15 years ago | (#1602189)

I think so. There have been articles about similar things recently. The only thing is that it's harder to get it declared a standard if you patent it. There need to be 2 independent implimentations for it to become a standard, even in name. In practice you have to convince people to use it, and if you charge a lot, that's hard.

bringing all economic activity to a halt (1)

CheapVerbiage (47207) | about 15 years ago | (#1602191)

That is what parasites do to a body.

The greatest danger is that some "rogue state" will not abide by U.S./western patents and thus accelerate the development of their technology by 17 years. If patent law has its way, even China could have better software than the U.S. 20 years from now. Patents might be a great way for the vested interests to control technology within their geographic domain, but as long as there are competing nations (i.e. more than one), you are going to need to let your tech people do their jobs at some point, lest your competitor do the same.

I don't know if we can fix these institutions without destroying them. They are moving fast in the direction of making it impossible for us to do our jobs at all. Maybe it wouldn't hurt to shut down all but 2 or 3 of the law schools in the U.S. Either that, or eventually all software will be written by less than half a dozen firms, and academic software will be a dim memory. It's sounds downright... Bolshevik: the Company is the State, via PAC money, and as such that State owns all property.

So, what do we do? (2)

Mr. Slippery (47854) | about 15 years ago | (#1602192)

I knew the situation with patents was bad, but this makes it sound like the only thing to do is take the folks from the Patent Office (or maybe the Court of Appeals for the Federal Circuit) out back of the barn and put them out of our misery.

What do we do? The only organization I've ever heard of to oppose this sort of thing is the League for Programming Freedom [mit.edu] , which is not much more than some web pages at the moment (no formal organization, no budget). Who else is there to co-ordinate actions against SW patents?

Re:Is there a lobby for influencing patent law? (1)

andyturk (92537) | about 15 years ago | (#1602193)

I doubt lobbying would work because the other side can spend more money on lobbying than we can.

Suppose you received a patent for your pseudo-random sequences and assigned it to a non-profit organization which would protected the patent for you? If someone wants to use your patented idea in an open-source way, then the license is very cheap. If the use is *not* open source, then it costs more.

License fees collected this way to go pay for the legal fees to patent other open source stuff.

There may be a large number of ideas like yours that could be used to set up a defensive perimeter of open source patents.

What do you think?

Re:Patents & Open Source (1)

CWCarlson (2884) | about 15 years ago | (#1602194)

Imagine if instead of paying Unisys $5K to get legal for using .gif images, companies paid a similar amount to a non-profit Open Source patent organization? I think that'd be pretty cool.



I think it'd be horrible! One of the principles behind Open Source software is free usage. Insisting that another party pay for the use of a piece of OSS is totally contrary to the philosophy. Suggesting that a party contribute to a worthy cause in exchange for the free use of the software is another matter completely, however...

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