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Open Source Patent Donations?

kdawson posted more than 6 years ago | from the fighting-the-good-fight dept.

Patents 185

patspam writes "As a software engineer I come up with patentable ideas every now and then, ideas which I'm not interested in pursuing myself but which I'd like to keep out of the hands of private entities/patent trolls in my own personal effort to defeat software patents. Should I patent the ideas and donate them to some sort of open source foundation? Or just blog about the ideas so that the 'prior art' exists in the public domain? What's your strategy for fighting against restrictive software patents?"

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Surely by definition (-1, Troll)

Anonymous Coward | more than 6 years ago | (#22938766)

The patent system can never be open source? [yahoo.com]

BEWARE THE LINK (4, Insightful)

IBBoard (1128019) | more than 6 years ago | (#22938776)

I've not clicked the link, but it's another Yahoo redirect link to an on.nimp.org address. Proceed with caution/insanity.

Re:BEWARE THE LINK (1)

jdowland (764773) | more than 6 years ago | (#22938786)

I don't know which link you are talking about, but patspam.com is a tag redirect to a wordpress blog hosted at blog.patspam.com.

Re:BEWARE THE LINK (2, Informative)

IBBoard (1128019) | more than 6 years ago | (#22938820)

I realised after posting that it would appear as a post with no obvious parent and I should have been clearer. The "beware" is for the GP comment, not the summary (noticed the "parent" link under my comment ;) )

Ban this troll, and some other advice! (5, Informative)

greginterrupted (1025818) | more than 6 years ago | (#22939492)

Can the moderators look up this troll's IP address and ban it? Or even the range of IPs? We have all seen these nimp.org links on Slashdot for several days at least, and it is annoying. I hate to give the troll attention by posting this but we should be able to ban this hater from Slashdot with minimal effort. I would hate to think that it is a dupe account of a meaningful poster, but we can take that chance given the content that the troll is posting as Anonymous Coward.

I fell for the link in Firefox and their popup blocker didn't catch it, even though I'm running the latest version and I have auto-updates turned on. Good thing my speakers were turned off.

If it hits you:

1. It's easy enough to hit ctrl-alt-delete and bring up task manager to close the instance of your web browser if you run windows.
2. If you run linux you're probably knowledgeable enough to do a kill or kill -9.
3. The design of the nimp.org link actually helps you to close all of the web browser windows that pop up. The default behavior of windows is to "group similar taskbar buttons" together. You may have noticed this from the old tabless-web browsing when you had many instances of (gasp) IE or another browser open. Windows would annoyingly consolidate all of the windows into a single button on the taskbar. To switch between windows, you needed to click on the button and a drop-down menu would appear. So the nice thing about this grouping is that after enough nimp.org browser windows show up, windows consolidates them, and you can simply right click on the one button that represents the dozens of web browser windows. Select 'close' from the drop down menu and you're good. In fact, I keep the "group similar taskbar buttons" feature turned on just for trolls like the AC who posts the NIMP links. That, and tabbed browsing lets me run only one instance of a web browser instead of running one instance for each open web page. If you want to change the behavior, right click on the taskbar and select properties, and you'll see a menu with the 'group similar taskbar buttons' checkbox.

Just wanted to bring some attention to this instead of sweeping it under the rug, and also wanted to provide advice on how to close your browser easily if it hits you.

Re:Ban this troll, and some other advice! (1)

thePowerOfGrayskull (905905) | more than 6 years ago | (#22940000)

Just curious, why click the link in the first place? A mouseover shows that it redirects (ultimately) to nimp...

Re:BEWARE THE LINK (1)

hansraj (458504) | more than 6 years ago | (#22938788)

I did click the link and it is just a troll. Not work safe.

As far as US is concerned (4, Insightful)

hansraj (458504) | more than 6 years ago | (#22938768)

you could just blog since the system is not first to file but first to invent. Moreover it also saves you patent fees that you would have to pay if you actually try getting a patent.

Re:As far as US is concerned (-1)

WetCat (558132) | more than 6 years ago | (#22938832)

Moreover, also write the idea, go to post office and mail it (sealed) to yourself (and may be also another one to your trusted legal advisor) by registered mail.
Do not open the package, when you receive it.
In case of a prior art you'll have a sealed, registered and dated proof of invention, which can be produced to lawyers.

Re:As far as US is concerned (4, Informative)

mavenguy (126559) | more than 6 years ago | (#22938890)

This is a common misconception. This will not defeat someone else who conceives and files for a patent later in the US. From 35 USC 102 [cornell.edu] :

A person shall be entitled to a patent unless--
...
(g)(2) before such person's invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other. (Emphasis added)

You need to actively work on it and have reduced it to practice (the latter which is satisfied by filing a patent application). Your triumphant opening of the envelope might garner you bragging rights, but no destructive effect on the patent rights of others.

Re:As far as US is concerned (2, Insightful)

Instine (963303) | more than 6 years ago | (#22939120)

"not abandoned, suppressed, or concealed"

Do you think thats an inclusive or an exclusive or?

Re:As far as US is concerned (1)

Instine (963303) | more than 6 years ago | (#22939134)

and don't say "yes"

Re:As far as US is concerned (5, Funny)

ddrichardson (869910) | more than 6 years ago | (#22939276)

No.

Re:As far as US is concerned (1)

Instine (963303) | more than 6 years ago | (#22939566)

tee heee.. would mod funny if could.

Re:As far as US is concerned (1)

bloobloo (957543) | more than 6 years ago | (#22939632)

Any of them. IF the invention by the original inventor was abandoned OR it was suppressed OR it was concealed THEN a patent can be issued to a later "inventor" Remember that you can have a cruel punishment as long as it is usual, and an unusual punishment as long as it is not cruel because the wording in the 8th amendment is cruel AND unusual.

Re:As far as US is concerned (1)

Dare nMc (468959) | more than 6 years ago | (#22940294)

Although having no bearing on the subject at hand.

>have a cruel punishment as long as it is usual, and an unusual punishment as long as it is not cruel because the wording in the 8th amendment is cruel AND unusual.


from the Magna Carta, which applies to both US and English law

the right and duty of the jury to pass final judgment on all laws, the moral intent of the law

typically this is more often used to throw out a unjust law, but I assume it works both ways. In the case of the 8th amendment this would clearly throw out any law allowing cruel but usual punishment.

Re:As far as US is concerned (0)

Anonymous Coward | more than 6 years ago | (#22939688)

You need to actively work on it and have reduced it to practice (the latter which is satisfied by filing a patent application).
Filing a patent application is not identical to reduction to practice. Reduction to practice means you have actually done or implemented whatever your idea is, and that can happen substantially after your patent is filed.

For example, I could come up with the idea of using trained butterflies in El Paso to clear up fog in London, based on an extension of the well-known butterfly effect. That's (arguably) a patentable idea. I've now blogged about it on /., so the idea has been conceived. If someone else were to pick up the concept, set about training some butterflies, and actually decrease the London fog, then he would have reduced the concept to practice and his patent rights would supersede my own.

If the submitter is talking about some bit of code that he's actually implemented, but has no intention of improving, then he's achieved the highest standard of reduction and can not be thought to have abandoned the invention. Now, if someone else would pick up that idea, improve on it, or extend it in some non-trivial way, then that second person would be eligible for a patent on the extension.

Re:As far as US is concerned (1)

SimonGhent (57578) | more than 6 years ago | (#22939802)

If someone else were to pick up the concept, set about training some butterflies, and actually decrease the London fog


Hey, I'm in London and it not foggy *at all*

Go butterflies!

Re:As far as US is concerned (1)

kalirion (728907) | more than 6 years ago | (#22939960)

before such person's invention thereof, the invention was made in this country by another inventor

Wait, so we can freely patent ideas/inventions from other countries?

Re:As far as US is concerned (1)

DustyShadow (691635) | more than 6 years ago | (#22940422)

No. If the invention is published in a foreign country, that document can be used as prior art in the U.S.

Re:As far as US is concerned (4, Informative)

IAmGarethAdams (990037) | more than 6 years ago | (#22938892)

Unfortunately however, this is unlikely to be admissible [snopes.com] in any serious context.

Most postal services have absolutely no problem with letting you send an empty, open envelope to yourself; after which you have an open, registered and dated empty envelope which you can later fill with a pre-dated proof of invention and seal.

Re:As far as US is concerned (1)

ckaminski (82854) | more than 6 years ago | (#22939432)

And if it's signed, dated and notarized?

Re:As far as US is concerned (1)

IAmGarethAdams (990037) | more than 6 years ago | (#22939480)

Then putting it in a sealed envelope still adds no additional credibility

Worthless advice, here's why. (5, Informative)

Yoozer (1055188) | more than 6 years ago | (#22938894)

Moreover, also write the idea, go to post office and mail it (sealed) to yourself (and may be also another one to your trusted legal advisor) by registered mail.
Do not do this. See http://www.copyrightauthority.com/poor-mans-copyright/ [copyrightauthority.com]
This trick works with anything else, too, so it worthless advice.

Re:Worthless advice, here's why. (1)

Psychotria (953670) | more than 6 years ago | (#22938968)

Additionally, copyright is implicitly given (well, in Australia anyway), so sending yourself a copy of something is a waste of a stamp.

We are not talking about copyright though--we're talking about patents. I do agree that it is silly posting yourself a copy of "whatever"... better just to publish the thing and claim the original art (read: others after you will have to battle with you prior art--it's not good if the prior art is sealed in a vault. Is it?)

Re:Worthless advice, here's why. (-1)

Anonymous Coward | more than 6 years ago | (#22938986)

Really, it's much better if it is NOT sealed, instead, for example on a postcard. The most interesting part is the date.
So it's probably a good idea, but it's better to do it using a postcard, not a sealed packet.

Re:Worthless advice, here's why. (1, Insightful)

Anonymous Coward | more than 6 years ago | (#22939014)

So post a blank postcard with your address on it. Years later, write someone elses invention/copyrighted work on the postcard. Still doesn't prove anything.

Re:Worthless advice, here's why. (4, Insightful)

asuffield (111848) | more than 6 years ago | (#22939206)

And if you want to accomplish something along those lines (proving that you had a document on a certain date) then that is precisely why notaries public exist in the first place. Take whatever it is along to your local notary and pay them their fee. In the eyes of the law, the document has now been proven to exist in your possession on that date. Unlike the ridiculous games with envelopes that you see in the movies, it actually works.

Re:Worthless advice, here's why. (1)

91degrees (207121) | more than 6 years ago | (#22939320)

Okay, it's not the best way of doing things, but I imagine it could help. If a copyright infringer claimed that he came up with the idea at a certain date, and you had done the sealed envelope trick at a date before then, then the infringer would at least need to come up with some suggestion as to why you mailed a blank envelope to yourself. An elaborate scam in which you planned to steal someone else's copyright some years hence really wouldn't pass the plausibility test.

This may be of limited use, and there are certainly better alternative available, but it's not totally worthless advice.

Re:Worthless advice, here's why. (1)

Yoozer (1055188) | more than 6 years ago | (#22939392)

It is worthless because the "evidence" is easily faked - you simply don't seal the envelope (completely) before sending it, so you can put in it whatever you want. If you read the link, you'll see a few methods of faking it. In fact, it's even worse than worthless because it gives the sender a false sense of legal security.

Re:Worthless advice, here's why. (1)

91degrees (207121) | more than 6 years ago | (#22939988)

It's not that easily faked. Let's use my comment here for an example. It's copyrighted by me. If you wanted to falsely claim ownership, how would you apply the technique in the link? Put it in the envelope that you previously mailed to themselves. Did you previously mail an unsealed envelope to yourself? I'm betting you didn't. Not only would your opponent have to prove it could be faked, but that it probably was faked.

Reasonable doubt is not enough to disqualify evidence in civil suits. You need the preponderance of evidence. i.e. is it more probably that you planned to fake this before the infringed item even existed, or that you posted to yourself in an attempt to protect yourself?

OT: Poor man's copyright the easy way (1)

davidwr (791652) | more than 6 years ago | (#22939744)

1) Post it to a web site and wait 6 months for archive.org to grab it.
2) Post it to a popular blog location whose date-stamps you can't fake.
3) If it isn't large, post it to your Wikipedia user page then revert the edit if the content is inappropriate for a Wikipedia user page. It will still be there, properly date-stamped, in the edit history.
4) Ditto your /. Journal.

Re:As far as US is concerned (1)

1u3hr (530656) | more than 6 years ago | (#22939852)

go to post office and mail it (sealed) to yourself (and may be also another one to your trusted legal advisor) by registered mail. Do not open the package, when you receive it. In case of a prior art you'll have a sealed, registered and dated proof of invention, which can be produced to lawyers.

All you'll have is proof you posted an envelope. No proof it was sealed or had anything it it when you did so. This is only useful for stamp collectors collecting first day covers.

Re:As far as US is concerned (5, Insightful)

thegrassyknowl (762218) | more than 6 years ago | (#22939040)

you could just blog since the system is not first to file but first to invent.

Since when has that pesky little thing called 'prior art' stopped the patent office granting patents, and since when has it stopped the legal system upholding those patents when they are used to sue the pants off the original inventor or anyone who is using his invention free of charge?

Re:As far as US is concerned (4, Interesting)

SLi (132609) | more than 6 years ago | (#22940348)

I've been told that a common trick for large companies in some countries when they hit a thing they figure out might be patentable but they are not interested in patenting it is write a rudimentary description of it and file it as a patent. At least here they've told me that is enough to get the application published in some public PTO journal, but it won't be examined until the examination fee is paid, which they just "forget" to do. So then they have very officially published prior art to similar claims for free.

Re:As far as US is concerned (0)

Anonymous Coward | more than 6 years ago | (#22939588)

Not sufficient for a prior art search. The patent examiners are going to look at (a) old patents, and, and . . . and not much bloody else.

If the idea has been practiced in a shipping product, that's great. Academic papers are a possibility, but they are weaker.

Some random web site (that could also be lying about the date) is not going to do much good.

legal advice (4, Funny)

simonharvey (605068) | more than 6 years ago | (#22938780)

What's your strategy for fighting against restrictive software patents?"
Well I suppose the first would be not going to slashdot for legal advice, but then IANAL.

Re:legal advice (2, Funny)

sporkme (983186) | more than 6 years ago | (#22938852)

My company is vastly intrigued by your refreshing concepts. Please email all of your code to: code-stealer slashtot.org (sorry for the obfuscation... can't be too careful these days). Once our firm receives your code, we will review it for viability and email you back with our offer. IANAL but I am totally "Al." You can trust everyone online, but be aware, many profitable arrangements are ruined by "best friends" who feign suspicion of legitimate businesses like mine, only to steal the data to resell to Korea. Just think about it. Tens of dollars await you my friend!

wtf legal advice on /.

Establishing Prior Art (4, Insightful)

codegen (103601) | more than 6 years ago | (#22938798)

I publish to a peer reviewed academic journal or conference. In most
of the conferences I'm involved in, we are always looking for
more industrial contributions.

Re:Establishing Prior Art (0)

Anonymous Coward | more than 6 years ago | (#22939286)

is that a haiku or something, i can't figure it out

Re:Establishing Prior Art (0)

Anonymous Coward | more than 6 years ago | (#22940154)

yeah that might work if your some academic freek but what if u dont have a degree?
just cos u have a greate idea dont mean u know about the some academic journal/conference crap letalone how to get something into it.
were talking 'i know how to code/maths for xyz way faster/simpler' kind of stuff here i would think.

GNAA: Gay Nigger Bake Sale - Penis Rocket 2 Moon (-1, Troll)

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Some considerations (5, Informative)

kanweg (771128) | more than 6 years ago | (#22938844)

Publishing is a fine way to create prior art, effectively inhibiting any further patents for that very idea. However, make sure you add as much detail as possible to give a patent attorney as little leeway as possible.

If you blog it, the content may get lost. Is it possible for you to (crudely) implement your ideas and put that code on sourceforge or some other repository, together with a description. In the comments of the code you can elaborate on things not implemented. In such a repository, the ideas may be longer lived, and more people may see it (and if necessary bring it to the attention of a patent office).

Bert
Patent agent

Re:Some considerations (2, Insightful)

n3tcat (664243) | more than 6 years ago | (#22939296)

I thought too much detail would in effect give the patent troll a "way out" as they can then just change one of the many details and become unique.

Patent Commons vs Prior Art (3, Interesting)

Anonymous Coward | more than 6 years ago | (#22938848)

Patent Commons can be pooled and used defensively (aggressively in defence) to defend Open Source. A patent commons that defends one particular cause can help find infringement in order to scare off someone accusing others of infringement. It can cause a ceasefire.

Prior Art helps block patents in general, but as we saw with the Amazon shopping cart patent it can take years and effort (from New Zealanders) to remove them.

So Patent Commons is more powerful, but it involves the patent submission process, and it can be costly. I suggest the patent commons if you're got the resources.

(I am not a lawyer)

Re:Patent Commons vs Prior Art (2, Informative)

JavaRob (28971) | more than 6 years ago | (#22938942)

How much does it cost to submit a patent? From what I understand, the legal documents are extremely complicated (so you need a lawyer) and the total cost will be somewhere from $5K up to $25K and possibly beyond depending on the complexity of the thing you're patenting (though the higher numbers will only come into play for highly-complex physical devices).

I absolutely agree that a donated patent can be quite useful -- but keep in mind that it's a sizable donation that *might* be valueless if there's some prior art you didn't find in your search.

The prior art approach seems like the way to go for most of us. It sounds like [wikipedia.org] you just need to publish the idea with enough detail that someone could implement it, to qualify as prior art:

In most patent systems, in order to anticipate a claim, prior art is expected to provide a description sufficient to inform the average worker in the field (or the person skilled in the art) of some subject matter falling within the scope of the claim. Prior art must be available in some way to the public, and many countries require the information to be recorded in a fixed form somehow.
A blog would seem to qualify; any way to more reliably prove the date of publication? Get it into the wayback machine [archive.org] , maybe?

USPTO FEES (1)

jbeaupre (752124) | more than 6 years ago | (#22940188)

USPTO Fees: http://www.uspto.gov/web/offices/ac/qs/ope/fee2007september30_2007dec17.htm [uspto.gov]

IANAL, and this is not advice. But it may help you understand some options.

The costs you quote are for paying someone else to write, file, and handle all correspondence with the patent office. Do it yourself and it's around $500 to file (basic utility filing). Get fancy, deal with a lot of responses to the patent office and it can get a bit more expensive. Have the patent allowed and pay for it to be issued is $720. Maintenance fees the add up.

But if your objective is to make the work public, then you're effectively abandoning the patent. Once it publishes, you might be inclined to not even bother with any of the steps beyond just filing. I understand you can also write to the patent office telling them you are abandoning it so something like that.

Two problems with this route:

1) clogs up the patent system with more stuff. More work for examiners might mean less attention paid to patents that might not deserve a patent grant.
2) The application will show as published, but it's not obvious if it's been abandon (requires more research). The existence of a published app may dissuade people from using your idea since they may think you are keeping it alive as a submarine patent.

Link to Patent Commons (1)

Tran (721196) | more than 6 years ago | (#22939382)

at least one - there may be others.
http://www.patent-commons.org/ [patent-commons.org] Check on Groklaw.net as well..

Hey when did Knuth start posting to Slashdot? (0)

Anonymous Coward | more than 6 years ago | (#22938864)

As a software engineer I come up with patentable ideas every now and then

Because if you're not Knuth, you have no patentable ideas (and no, new to you is not new).

Re:Hey when did Knuth start posting to Slashdot? (0)

Anonymous Coward | more than 6 years ago | (#22939298)

Aye, if all you're making is software, you have nothing patentable, but that doesn't mean you can't get a patent for it.

Creating "Prior Art." (5, Insightful)

mlwmohawk (801821) | more than 6 years ago | (#22938872)

To establish prior art you need to publish. The problem is that magazines and journals are fairly selective about content because they have to pay or the content has to fit their market or be interesting in some way. Then there is credibility, if you write an article about recommendations or motor control methodology, something you've done as a hobby project, a magazine or journal may not choose to publish because it can not properly verify the content.

We need to create an "on-line" and perhaps paper "journal" that will accept all technical submissions and publish them in a way that fits the USPTO's definition of "published" to establish prior art. That way *all* ideas get covered easily.

I've written a lot of articles and only been published a few times, its hard to get published. There are lots of would be authors out there and a lot of subject matter being written about.

Re:Creating "Prior Art." (0)

Anonymous Coward | more than 6 years ago | (#22939144)

Patents are also supposed to be non-obvious. That is to say, 'not obvious to a professional working in the particular field in question'. Blogging (etc.) about a new idea could also be used as evidence that a hypothetical patent fails to meet this criterion. Especially if several bloggers at different times in different fields of IT all independently come up with the same solution for a problem.

A good example is the attempted patent on the cursor. To be honest, as a programmer I can't see any other way of marking where the next character is going to appear - the cursor is pretty much /the/ most obvious way to do it. Therefore the cursor ought to be non-patentable. There are quite a few other IT-related things that have been patented, where I've thought 'wait a minute, if I had needed to do X, that's the first thing I would have tried'. So I think we should attack and undermine more patents on grounds of obviousness rather than on prior art. Obviousness is not affected by the issue of who was first to file.

Re:Creating "Prior Art." (1)

stranger_to_himself (1132241) | more than 6 years ago | (#22939254)

When I worked in biotech (this was in the UK in 2000-2003) our lab books, countersigned regularly by a senior academic and archived in the institute library were considered a good enough defense against subsequent US patent applications. I don't know if this was ever tested.

I agree there should be repositories for articles that are not necessarily of enough immediacy, impact or quality for publication, but still contain potentially valuable IP. I wouldn't be surprised if such a thing already exists. Nature magazine have a new 'Nature Precedeings' website to share pre-publication research, and I'm sure other subject areas are doing similar things.

Re:Creating "Prior Art." (4, Informative)

ortholattice (175065) | more than 6 years ago | (#22939282)

To establish prior art you need to publish. The problem is that magazines and journals are fairly selective about content because they have to pay or the content has to fit their market or be interesting in some way. Then there is credibility, if you write an article about recommendations or motor control methodology, something you've done as a hobby project, a magazine or journal may not choose to publish because it can not properly verify the content.

This is highly dependent on the journal. In the case of trade journals, a lot of them are actually dying for "real" articles buried in their mass of ads, and ads thinly disguised as articles, to attract readership. In the past I have submitted many "test cases" to a trade rag on electronics test and all of them were published without question. In some cases they were patentable ideas I specifically wanted to make public domain, because it wasn't worth it to me to go through the patent expense but I also didn't want to be prevented from using them in the future. As a side effect I became well-known in the field, very helpful for my consulting work.

On the other hand, I have submitted a couple of ideas to the "Design Ideas" section of EDN magazine. Both were rejected, even though I thought they were reasonable. I think the problem there is simply that the column is very popular and they have more submissions than they can publish, so it depends on the whim of the editor that day.

Anyway it depends on the journal. I guess my point is that if you're going to write it up anyway, might as well submit it and see what happens, doesn't cost anything. If it does get published, you'll make a name for yourself and have something for your CV, as well as establishing prior art. For best results find a little known or start-up trade rag in the field that's 90% ads. And if it doesn't get published, you'll still have your write-up for some on-line thing as you suggested.

Re:Creating "Prior Art." (1)

kong74 (840524) | more than 6 years ago | (#22939460)

Maybe http://www.lulu.com/ [lulu.com] is a sufficient way to publish.

Re:Creating "Prior Art." (1)

asdjlfhgas (603713) | more than 6 years ago | (#22939548)

The USPTO doesn't require a disclosure accessible to the public to be in a certain format to constitute prior art...an informal, off the cuff, profanity-laden, dated comment on slashdot.org would constitute prior art if it was pertinent to any claims at hand. Your personal website that is the last search result on google, if relevant and accessible via archive.org or dated with CMS or whatever, would fit the USPTO definition of "published".

publish (5, Insightful)

nguy (1207026) | more than 6 years ago | (#22938922)

You need to publish your invention in an archival format. Write it up for Dr. Dobbs or some other magazine.

Publishing it on the Internet is not enough; it doesn't count as prior art.

Even if you publish in an archival format, companies will often still patent almost the same thing and then worry about fighting it out in court. There are all sorts of ways of basically invalidating your publication for the purpose of counting as prior art, but it's still the best chance you have.

Patenting is pretty hopeless: it's enormously expensive, and trying to enforce a patent is even more costly. Patents are not useful for inventors or open source, they are only useful as legal ammunition for big companies and law firms to play games with.

Re:publish (3, Informative)

asdjlfhgas (603713) | more than 6 years ago | (#22939484)

Who modded this up? Publishing on the internet does count as prior art, if it is accessible via archive.org or is dated such that there is generally no reason to believe it was backdated. A dated comment on slashdot.org would constitute prior art as there is the presumption that the date was not altered for deceptive intent. It may be more transient over the course of decades as opposed to an actual publication, but it certainly would be usable as prior art if found.

Re:publish (1)

nguy (1207026) | more than 6 years ago | (#22940030)

That's idiotic advice. Prior art claims are hard enough to establish anyway, and you simply don't want to spend time arguing in court about whether a blog post counts as prior art.

There's a bunch of established ways of publishing something so that it counts reliably as prior art. Use one of them. Doing anything else is unnecessarily risky.

(You seem to assume that public accessibility and an established publication date are sufficient to establish prior art. That is incorrect: there are additional requirements, and it is far from clear that a blog post or a Slashdot post meet them.)

Re:publish (1)

asdjlfhgas (603713) | more than 6 years ago | (#22940156)

I didn't say there weren't better ways to publish. But if you are disclosing it for defensive purposes only, as an individual, chances are you don't want to spend the time and money trying to get your paper published in an official journal. You state that "you simply don't want to spend time arguing in court about whether a blog post counts as prior art" and "Doing anything else [besides established ways of publishing] is unnecessarily risky." Perhaps you would like to elaborate on these additional requirements which pertain to the medium in which something is published? Otherwise, you're merely generally alleging a point.

Re:publish (0)

Anonymous Coward | more than 6 years ago | (#22940566)

(You seem to assume that public accessibility and an established publication date are sufficient to establish prior art. That is incorrect: there are additional requirements, and it is far from clear that a blog post or a Slashdot post meet them.)
I am a patent examiner, and I have to say that if you were correct, there would be far more dubious patents officially granted than there already are. I have frequently cited web pages as prior art, provided that either there's a date on them or the Internet Archive has a copy from before the effective priority date, without incident. I've even used old revisions of Wikipedia entries and yes, even a Slashdot article or two. In all that time, I've only once had a problem where an attorney challenged the admissibility of something I found on the Internet, based on a discrepancy between the metadata in the PDF file I was quoting and the copyright notice inside the document itself being on opposite sides of a priority date. It's been my experience that most applicants just accept the publication or "last modified" date on a web page on its face, since the amount of effort they would have to expend to challenge it, combined with the diminished likelihood that they actually could prove that the claimed date of the reference is invalid for whatever reason, makes it simply not worth their time and money to challenge it IMHO.

Re:publish (1)

XLawyer (68496) | more than 6 years ago | (#22940486)

USENET has by and large been taken over by the spammers and trolls, but it may be a viable way to publish: after all, Google does index it through Google Groups. It's publicly available, indexed, and even has evidence (some, at least) of publication date.

Re:publish (1)

anomalous cohort (704239) | more than 6 years ago | (#22939818)

I can't believe that posters here are taking the original poster seriously as he is basically asking for advice on how to create submarine patents for the open source community. Hey folks, when did the ends start justifying the means?

IMHO, criticizing the patent system when for profit corporations abuse it yet encouraging the same abuse when it is done by open source foundations shows a lack of integrity. Wake up, people!

Re:publish (1)

SimonGhent (57578) | more than 6 years ago | (#22939910)

he is basically asking for advice on how to create submarine patents for the open source community


I think that's a little unfair.

Another interpretation could be that he's protecting an idea that could be used in open source and subsequently patented. Then if the patent holder were to complain there would be evidence or prior art, I don't think he's talking about submarineing here.

Re:publish (0)

Anonymous Coward | more than 6 years ago | (#22939924)

The one thing it does help with (not that I am a supporter of the current patent system) is to establish credibility in a field. (No, no, I'm not talking about patenting the colour magenta [slashdot.org] or one-click shopping or that crap. I'm talking honest patents.)

This is enormously helpful when you start building a company. Venture capital flows in a touch easier if you can show that you are serious. One tangible way to do this is with a patent. It might cost you $10,000 to patent, but it might benefit you with $100,000 in start-up capital grants.

Using blogs and tags (1)

MosesJones (55544) | more than 6 years ago | (#22938930)

A while back I blogged on using tags and blogs as a standard mechanism for publication [blogspot.com] . Now the point of this is that while the patent act says published it doesn't specify the publication type it just says that the other people filing could have obtained the information from it and that others will have read it.

To me this is a classic case where the internet has over taken the current laws to give us a much cheaper and simpler way of doing this.

The us is currently "reforming" its patent laws (2, Interesting)

plasmacutter (901737) | more than 6 years ago | (#22938934)

I haven't seen anything on this in a while, but It passed one of our houses already.

From what little i've tracked on it, theyre "reforming" the patent system by handing it even more firmly to trolls:

e.g.:

switching to first to file
putting severe restrictions on who has standing to challenge a patent
putting severe restrictions on the period during which it may be challenged before it can never be invalidated period.
(goodbye EFF patent busting campaign anyone?)

I'm sure more "reforms" have and will be added to this bill.

Given this, many other horrid sellouts, and the recent news our new bush appointed head of the fed refuses to impose regulations economics experts nationwide say are absolutely necessary because he holds right wing dogma above economic reality (surprise surprise), I would like to be first to cry "WOMEN AND CHILDREN FIRST!"

the lifeboat is across the great lakes to the north folks, those of you in steerage might want to start making your way there now.

Re:The us is currently "reforming" its patent laws (0)

Anonymous Coward | more than 6 years ago | (#22939598)

Sadly, you're absolutely right.

So all of us on /. have two options:

1. Expend massive effort and resources in a futile attempt to fix the system.
OR
2. Because a patent attorney or patent agent and PROFIT!!!

Personally I'm going with option 2.

Sometimes you have to make things worse before you can make them better.

The nature of software does not support the.... (2, Funny)

3seas (184403) | more than 6 years ago | (#22938948)

...patent ideology

What is universally accepted as not being patentable:

abstract ideas,
natural law
physical phenomenon

Mathematical algorithms as often added to this but in essence are included in the three primary.

The reason these are so universally accepted as not being patentable is that its near impossible to enforce patents against such things.
i.e. patent on gravity... you cannot use gravity without paying me royalties. But if you try and avoid gravity and walk off a cliff, paying royalties to some fool is teh least of your concerns.

How these applies to software:

Abstract ideas is rather obvious as software is the art of abstraction creation and use if anything is to be considered an art of abstraction.

Natural law is that abstraction is naturally a characteristic of human ability. Without it we could do nothing more than preform like any other animal incapable of developing technology, medicine, clothing, etc..

Physical phenomenon - thru the application of non-physical based abstraction we cause physical movement. If I tell you to go to the store and get a gallon of Mayfield milk, I have used abstract ideas communicated and received by you to act upon. If I/we did not have such ability, Mayfield milk would not exist to begin with.

Now many claim that software is in essence mathematical algorithms, but the basis of computer technology, the way it works, defines this constraint as a computer is based on "calculating" defined in terms of numbers (binary based). However, a radio station (fm or am) uses a carrier signal that cares not of what is carried over the signal, be it music, news, talk, noise, etc... And in the same way this basis of computing can as well be used as a carrier of abstraction far beyond math. Yet the carried its still inherently made up of the three primary things universally consider not being patentable.

This software patent fraud that has been going on has, as any attempt to contradict physics and nature, very bad effects, only due to the inherent nature of abstraction the skill of abstraction manipulation (human use and ability to deceive via abstraction manipulation) there are those who have remained fooled by such deception and unfortunately are in positions to indirectly tell people they have to walk off a cliff rather than recognize they are human with inherent abstraction skill and as a natural human characteristic it is to be expected and even encouraged to be what we are and make the best of it.

There is a way to not only prove all of this but in so doing build up a foundation of common knowledge solution direction of anyone "skilled in the field", non novel, and other aspects supporting non-patent-ability.

Humans can be deceptive for a long time and in an environment that even proves otherwise. This might be called the "human denial factor". Examples of this are well known, ie. Galileo and teh exoneration in the early 1990 of his views. But a lot of good such exoneration does Galileo now. Likewise the Hindu-Arabic decimal system took three hundred years to over come the far more mathematical limiting roman numeral system. Lets face it, only a fool would think nothing cannot have value (re: zero place holder), yet accountants using roman numerals were elite.. (sound familiar?)

Anyways, this idea of asking for funds/donations for to support software patents, regardless of the claimed intent of obtaining such patents, is supporting dishonesty and does not help to resolved the real issue of genuinely recognizing the honest nature of software.

for more see: Abstraction Physics [abstractionphysics.net]

Re:The nature of software does not support the.... (1)

samkass (174571) | more than 6 years ago | (#22940118)

Software is a machine. It executes in a virtual mathematical environment, but in its domain it's every bit as much a constructed machine as a lever, airplane, or telephone. Giving physical machines some sort of exclusive status as "patentable" while rejecting the patentability of software makes no sense to me. Yes, it executes on mathematical principles, but so do all the physical machines that have been patented.

Patents are expensive, publishing is cheap (1, Funny)

Anonymous Coward | more than 6 years ago | (#22938992)

In both cases expensive lawyers are needed to enforce your "rights". All in all, public domain probably has less protection than patents since it has no net perceived worth.

I've put stuff into the public domain before. It didn't stop anyone from filing patents on some of it anyway.

Re:Patents are expensive, publishing is cheap (1)

Woodpeckeruk (1098697) | more than 6 years ago | (#22939684)

Applying for a patent simply to publish, and not to have a patent granted, is a cheap and effective way of publishing for defensive purposes, and is a sure way of making the work searchable by patent offices. See my comment below.

Proof right there (0)

Anonymous Coward | more than 6 years ago | (#22938996)

The simple posting in the above demonstrates how dumb software patents are. It also demonstrates how few people really understand what it was intended to support. Anyone, including those that simply support it, that thinks they are able to just "sit around and think of patentable ideas" is wrong from the start. You're not a genius. You are one of the morons that are screwing up a system designed to protect fairly rare ideas.

Send them to me (5, Funny)

realkiwi (23584) | more than 6 years ago | (#22939004)

Send your ideas to me I'll look after them free of charge!

Bill G.

oh wait maybe I shouldn't have signed...

Honest opinion? (5, Insightful)

dpx420 (1210902) | more than 6 years ago | (#22939012)

Sell out. Patenting the ideas is going to cost you time and money, whereas if they are truly worth the attention of the 'evil corporations' you stand to make a substantial gains from making them available to a company with the required resources to put them to use. Around here a higher than average subset adhere to strange personal religions that financial benefit from your own ingenuity is somehow immoral, and that the world is better off if real companies can't use these ideas and make them a practical reality (but that's ok, some guy sitting in his parents basement will knock off a buggy implementation in 10 years time, for freeeeeee man). You decide which of these outcomes you would rather see.

There are only small number of people for which simply blogging their ideas would:
a.) get them taken seriously, or even noticed at all,
b.) be worthwhile for them personally in terms of personal reputation and the longer term benefits of that.
Those are people who are already recognised within specific (usually comparatively small) technical communities, often with freelance careers for which reputation is important. I'm going to guess that you are not in this position because all this would be obvious to you otherwise. It is also rather naive to think that articles simply posted on a web page will stand up as prior art in courtroom against competent lawyers. This is simply pragmatism.

I'm going to make another assumption, that you are posting this question out of a genuine uncertainty of how to reap the results of your own creativeness (which is something that anyone deserves). If you are simply seeking group endorsement (perhaps subconsciously) then my reply probably hasn't been of much help to you.

The two are not mutually exclusive..and good idea. (1)

plasmacutter (901737) | more than 6 years ago | (#22939116)

There are several large companies with highly publicized ties to the OSS community who do things like vow to set aside patents when an OSS projects are using them. Doing research on this regard is a good thing.

You could even make it a condition of your "selling out"

so whadda ya expect? (1)

airdrummer (547536) | more than 6 years ago | (#22939170)

> strange personal religions that financial benefit from your own ingenuity is somehow immoral

after 40+ years of commie infiltration into our pubic edumacation system;-}

Re:Honest opinion? (0)

Anonymous Coward | more than 6 years ago | (#22939222)

What if 'my own ingenuity' is finding a way to be a con-artist and trick the world into thinking that the ideas of others are really my own, and then milking them for all they are worth? Am I a moral, upstanding capitalist citizen?

What about taking over as CEO of a company and using 'my own ingenuity' to embezzle as much money from the company while running it into the ground, and then jumping off with my golden parachute just before the company crashes?

I -- and many others -- believe that people making money off of their ideas isn't necessarily a bad thing. A bad thing is people thinking that they are /owed/ something by society just because they had an idea. You should have a /limited/ window in while to capitalize on your idea. If you can't do it, then society shouldn't guarantee you some 1000 years of making attempts to turn your idea into personal profit. On the other hand, society shouldn't guarantee you some 1000 years of profitting off of your idea.

When it comes to things like patents, society is granting you a monopoly to develop your idea into a reality and sell it to the public. The purpose of patents is not to give huge multinational corporations extra legal ammunition to beat small businesses over the head with in the pursuit of paying their CEO and board of directors an extra $1 million Christmas bonus. The purpose is also not to say that just because you came up with an idea, you can keep that idea in some sort of death grip into your grave.

----

In any case, he's saying that he wants to basically give his ideas away for free. You're just trying to say "Your personal philosophy is wrong." You're not really helping anything with the original question. The fact that 'competant lawyers' can render any prior art as invalid says bad things about our patent system. How can a functioning patent/legal system allow someone who first came up with an idea have his idea 'stolen' away by some company just because they have enough money to throw at the issue? Is this moral to you too? For a company's 'ingenuity' in litigation to give them profit by stomping out others' legitimate claims?

Re:Honest opinion? (1)

mdwh2 (535323) | more than 6 years ago | (#22939308)

Around here a higher than average subset adhere to strange personal religions that financial benefit from your own ingenuity is somehow immoral

There are many arguments against software patents - this however is just a straw man.

and that the world is better off if real companies can't use these ideas and make them a practical reality (but that's ok, some guy sitting in his parents basement will knock off a buggy implementation in 10 years time, for freeeeeee man).

Your argument is the wrong way round - under the patent system, we're left to the individual who comes up with them to come up with an implementation, which might work, might not, or maybe he might sell it to a company, who then might use it, or they might just use it as a bartering tool against other companies. Under the suggestions of the OP, real companies will be able to use these ideas and make them a practical reality.

If he makes his idea available for all, then that means those companies with resources are also free to be able to use this.

(I presumed by "out of the hands of private entities/patent trolls", he means companies that patent them to prevent others using them, and not that he wants to prevent companies from using the idea - after all, if he did that, then he too would be a patent troll.)

Re:Honest opinion? (1)

expro (597113) | more than 6 years ago | (#22939816)

Sell out. Patenting the ideas is going to cost you time and money, whereas if they are truly worth the attention of the 'evil corporations' you stand to make a substantial gains from making them available to a company with the required resources to put them to use.

OK so far...

Around here a higher than average subset adhere to strange personal religions that financial benefit from your own ingenuity is somehow immoral, and that the world is better off if real companies can't use these ideas and make them a practical reality (but that's ok, some guy sitting in his parents basement will knock off a buggy implementation in 10 years time, for freeeeeee man). You decide which of these outcomes you would rather see.

Now the idiocy is starting to show. Most people on slashdot make their living by making their ideas available to others for money and being happy that they can.

The moral question, which either you choose to distort or has just eluded you is whether it is moral to use the patent system in the way it exists today. This is similar to other moral questions such as whether it is moral to dump radioactive waste into a river, sell your children into slavery, profit from fraud, etc.

Whether you work with a corporation to patent something or try to do it yourself, you will likely get screwed out of any real profit, and be a tool in the hands of others for proliferating monopoly and stopping others from using their own brain and ideas even in ways which were not at all benefiting from your work. That is how patents work, and that is why many try to derive their incomes without being part of the corrupt patent system, selling their ideas and inventive capacity without insisting on government subsidy/monopoly grants to profit from them.

Re:Honest opinion? (1)

dpx420 (1210902) | more than 6 years ago | (#22940532)

This is similar to other moral questions such as whether it is moral to dump radioactive waste into a river, sell your children into slavery, profit from fraud, etc.

Aside from the debate surrounding the morality of software patents, the fact that you are comparing their alleged negative effects with those of human rights abuses, or deliberate nuclear release, shows that you are out of touch with reality. Unfortunately this doesn't make it any easier to not take what you say with dubiety.

you will likely get screwed out of any real profit, and be a tool in the hands of others

Are you talking from experience? Or basing the probability of this happening from what you have read on your favourite nerd websites. Somewhere in the world people are getting screwed over every day, in all aspects of life. Maybe it's safer to shut yourself away 24/7 so that your ideas never see daylight (or languish in some repository which every company is afraid to touch). Of course, risk/reward dictates that you won't ever achieve much either. Someone better tell that to all the successful inventors out there who had legal and business sense as well as being brilliant innovators.

protective publication (0)

Anonymous Coward | more than 6 years ago | (#22939106)

protective publication usually serves this purpose. It is less effort than a patent and much faster.

A private blog may or may not be found, should such patent be later filed by anyone, or should there be a legal case. Private blogs are useful only if you are the one who will be using the idea, then you know there is one.

build a prototype (2, Insightful)

FudRucker (866063) | more than 6 years ago | (#22939192)

build a prototype version .0.1 with well known friends of GNU/GPL and get it licensed under the GNU/GPL-3 and release it on SourceForge, then you know it is anchored somewhere...

Accelerando (1)

er_head66 (224488) | more than 6 years ago | (#22939210)

Check out the novel Accelerando [accelerando.org] .

Discusses this concept precisely...guy goes around dreaming up random ideas, then immediately patenting them and donating to Open Source organisations.

Fun singularity-related read. Creative commons too, so it's free.

Publish it as a patent application (5, Informative)

Woodpeckeruk (1098697) | more than 6 years ago | (#22939426)

The best way to ensure that i) it is published; ii) that it will be available for patent searching in perpetuity; and iii) you don't have to spend too much money, is to write it all down in detail and send it to a patent office as an application. Provided you pay the initial filing fees, all patent applications are published. You can speed up publication by specifically requesting it, rather than waiting for 18 months. As an example (since I am a UK patent attorney), what I would recommend is filing an application consisting of pretty much anything at all, paying the £100 fee and then letting the application lapse after publication. Even easier than that, simply post your invention disclosure to the UK-IPO, Newport, Gwent, UK including the words "I would like to apply for a patent for the following", making sure to include some contact details, and the UK-IPO will let you know what else they need.

If I remember right, the US has a similar 'defensive' patent system for doing precisely this, but I would rather leave the details to someone else.

Re:Publish it as a patent application (3, Informative)

theantipop (803016) | more than 6 years ago | (#22940456)

This is the best answer so far in regards to the actual question. If you want your idea to be used as a defensive measure against future patents, you want it to get the most coverage by the examiners who will be searching. Previously published patents and patent applications are, with few exceptions, the primary source and the major focus in the course of the search of an examiner.

You may think publishing it somewhere on the internet will be good enough until you realize it's not feasible to search every whackjob blog out there for claim language that you probably haven't reproduced. Also, archive.org doesn't actually archive a lot of these small, personal websites so it would be very difficult to reliably date the material.

IP.com (1, Interesting)

Anonymous Coward | more than 6 years ago | (#22939648)

A website called www.ip.com was specifically designed as a place to publish if you want your work to be recognized as prior art. It is recognized as an acceptable form of publication by the USPTO, as far as I know. Visit the site yourself and read the full details.

open source patent pools and patent agents (3, Informative)

j0nb0y (107699) | more than 6 years ago | (#22939658)

I've seen some discussion on /. of creating open source patent pools to protect open source projects from patent infringement.

I want to point out to everyone thinking about such a thing that you *do* *not* have to go to law school and become an attorney to file prepare/file/prosecute patent applications. All you have to do is pass the patent bar exam.

A law degree is not required to sit for the patent bar exam. All you need is a technical background (which most /.ers have). There are a list of degrees that will automatically qualify you to sit for the patent bar. Included are various engineering and science degrees. Computer Science is included, but to automatically qualify, the school had to have had a certain accreditation at the time you graduated. You can also qualify with *any* computer science degree under category b option iv, but that requires a transcript along with course descriptions for 40 credits worth of qualifying courses.

If open source projects want to start filing a lot of patent applications, then having a project member become a patent agent would be a good idea.

I'm a first year law student, and I'm planning on taking the patent bar this summer.

Re:open source patent pools and patent agents (1)

Woodpeckeruk (1098697) | more than 6 years ago | (#22939794)

You don't have to pass any exams to prepare and file patent applications. Anyone can do it. It's just that patent attorneys can get a better patent for you.

Re:open source patent pools and patent agents (1)

sharkb8 (723587) | more than 6 years ago | (#22940054)

The patent bar is merely a test of your ability to do paperwork. It's all procedural, and doesn't cover anything substantive. You CAN file a patent for someone else after having taken the patent bar, but it won't be worth a crap until you have some experience drafting patents. No one tells you when you're studying for the patent bar why you use "comprising" instead of "consisting of" in the claims (it's because "comprising" is open ended, and doesn't foreclose any other elements being added to a claimed invention, "consisting of" limits your invention to the elements claimed) By the way - the patent bar's easier than you think, take it asap. It's computerized, multiple choice, and the answers are all taken straight from the MPEP. They even give you a searchable MPEP in the test software. It's in PDF format, and split into chapters, but not too bad. As for costs, it's $515 to file a patent for a company with less than 500 employees, double that for a large company. Legal fees range from $k-$20 for the initial application and $1500-$3k for each office action. It's also about $2k for publication and issue fees after the patent is granted. And yes, IAAPL.

Produce a proof-of-concept (1)

CodeShark (17400) | more than 6 years ago | (#22939678)

At the lowest possible but probably patentable level. Pretend that you're a patent examiner and include in your notes enough detail about what the code is designed to do and how it works to defeat subsequent attempts to patent the same tech, and then publish the piece as "open source software", and submit the code via the GPL to a larger project or code library such as Creative commons.

s
Reason being, if the technique is truly useful, it is more likely to be used in other projects and more the more projects that it's in, the more eyes that are aware of the tech and the higher likelihood that if someone gets sneaky with a patent application they'll object during the patent evaluation process with NUMEROUS examples of prior art.

prior art implementation v.s. online posting (1)

vglass (1255990) | more than 6 years ago | (#22939746)

I am seeing some posts saying that a blog posting may not be considered sufficient in court for proving prior art. However, I'm curious to know how an actual working implementation of an unpatented idea would be seen. For example, once an idea becomes part of a software product documented version history would that be seen as prior art?

There is a better way (1, Informative)

Jane Q. Public (1010737) | more than 6 years ago | (#22939808)

to stop software patent trolls: fight the entire concept of software patentability.

Software is properly part of the domain of copyrights, not patents. The very idea of patenting software is an abomination.

Just Say No.

IBM defensively published for 50 years; (3, Informative)

davidwr (791652) | more than 6 years ago | (#22939814)

IBM Technical Disclosure Bulletin [wikipedia.org] .

IP.COM [ip.com] provides a way for you to publish your own work and add it to their searchable prior art database.

You may also be interested in the Patent Commons [patentcommons.org] .

Did I say 50? (1)

davidwr (791652) | more than 6 years ago | (#22939830)

Sorry, I meant 40. Wishful thinking perhaps.

Provisional Patents (1, Informative)

Anonymous Coward | more than 6 years ago | (#22940100)

Provisional Patents are the answer.

They only cost around 100 or 150 $ and they permit you to take a year to file the full patent. In the meantime, they represent prior art *in* the patent system, so no one else can patent that.

In a year's time, you still don't have to patent your idea, but the prior art stays there as a record that you at least thought it up back then...

Are you employed by someone? (2, Informative)

timothyf (615594) | more than 6 years ago | (#22940130)

Better make sure your contract doesn't say anything about the company owning inventions that you come up with while you're employed by them. Bottom line, talk to a lawyer, not Slashdot.

Should FOSS Developers Apply for Patents? (1)

JimGarrison (1234382) | more than 6 years ago | (#22940200)

From the Software Freedom Law Center's legal guide [softwarefreedom.org] :

Merely owning a few patents will not provide an effective defensive counterweight to a hostile competitor that holds hundreds or thousands of patents. It will also be entirely ineffective against so-called patent trolls. Patent trolls are companies that acquire, sue on and license patents but do not produce any products that might infringe others' patents.

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