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Basic Patent Law for Programmers 221

Posted by Roblimo
from the what-you-didn't-know-you-needed-to-know dept.
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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Basic Patent Law for Programmers

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  • 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.

  • by smoke (771)
    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.
  • 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.
  • It won't happen like this - I know of course you're being facetious with a
    grain of truth - what I mean is, it won't be simple; choosing a side won't
    be simple.

    * The technology in question will be much more sophisticated than most laypeople
    can understand.

    * The history will be fuzzy. Who applied when? When was it issued? When was
    the OpenSource version published? etc.

    * Dan Rather won't be reporting it. Big Media is owned by Big Corporation who
    owns Big (dubious) Patent Portfolio. Therefore, positive publicity, if any at
    all, for the little guy will be harder to come by. Besides, President Clinton's
    Stupid Cigar Tricks (patent pending) is more important.

    Perhaps I'm generalizing too much, but, hey, I'm cynincal.
  • Nope. I should have been a bit clearer--if you were already doing something, and didn't recognize it as a "new invention" then that other inventor's new patent --shouldn't-- be patentable, but may very well be held valid in court. This is patent law, not common sense. Or if the language of the patent covers conduct that used to be in the public domain, that same conduct could be covered by the patent if some trivial condition is met, like doing X (public domain) versus doing X on the internet (covered by the patent.)
  • Everyone, except entities which enforce software patents, of course.

    Nah, that'd just bring the sharks out and make you look meanspirited. Instead, be like Ghandi and retain the moral high ground.
  • Here is the US definition of infringement:

    http://www.bitlaw.com/source/35usc/271.html

    Note the distinction between a "patented
    invention" in (a) and a "component" in (c)
    and the use of the word "material".

    Interestingly, it appears to me that the
    greatest risk of liability would be from
    section (f) relating to exporting.
  • chicken and egg...
  • Here is the US definition of infringement:

    http://www.bitlaw.com/source/35usc/271.html

    Note the distinction between a "patented
    invention" in (a) and a "component" in (c)
    and the use of the word "material".

    Interestingly, it appears to me that the
    greatest risk of liability would be from
    section (f) relating to exporting.

  • This assumes the patent office employees know jack about the patent's applicable field, that they actually take the time to properly research it, etc, etc..
  • Good point. I'd forgotten Google and of course this is one of those instances where Google's algorithms (counting inbound links) works where webcrawlers simply cannot.

    There's an article at http://webreview.com/pub/97/04 /11/feature/part2.html [webreview.com] about web design in general; chiefly why pervasive format-based markup is a bad thing (use CSS ASAP), but also about the problems of search engines finding their way through database and script driven sites.

  • Nah, all the big corps will just give the Univ's etc $$ and the students have to sign away all their work to the corps..

    Students get their PhD's but can't use them at their new job unless it's with the big corp.. great huh?
  • But according to the article, specifically the points for overturning a patent, doesn't OS software have a distinct disadvantage?

    point iii says that that the invention must have been offered for SALE.

    point ii may give us some hope, but what kinds of publications are acceptable and is OS software doing this?

    I'm not sure OS isn't covered, but a few warning bells definately went off in my head.

  • by Chuut-Riit (48419) on Tuesday October 19, 1999 @10:40AM (#1601996) Homepage
    (1) a clearance opinion is a letter from a patent attorney that analyzes the patent claims, specification, and the patent office file, possibly additional prior art, and possibly the accused device, and states that the accused device does not infringe, the patent is invalid, or both, with detailed analysis as to why this is the case. The opinion "clears" the device in the U.S. to the extent that it can be used as an "advice of counsel" defense to charges that the infringement was "willful," so that the patentee gets increased damages.

    (2)I'm not sure what you mean by a "dispute stage". The PTO has an internal appeals procedure for applicants who have had their patent applications denied by the patent examiner. If the applicants lose at this stage, they can pursue their appeal in court. The PTO also has a "reexamination" procedure, where anyone can submit prior art to the PTO and argue that the prior art raises a substantial new question as to whether the patent should have been issued. This isn't done too often (I know it sounds good) because the requester can't participate after the initial request is filed. After that, it's just the patent owner and the PTO examiner. Statistically, most patents come through the process with at least some claims, and these claims are stronger (will hold up better in court) as a result. In addition, you can't use prior art in reexamination that the examiner considered the first time through, no matter how badly they botched its interpretation.

    As far as providing incentives, you're going to love this. The PTO rewards examiners on a "production system" (I know because I used to be an examiner). The examiner's have a rigid quota that they have to meet, and get points if they reject an application for the first time, if they allow an application to become a patent, if they answer an appeal to the PTO Board of Appeals, or if the case becomes abandoned. Their performance ratings are based on meeting these production goals (which haven't been changed since the 60's), and they are rewarded if they exceed their goals.

    The result is that some examiner's play the system so as to reject the applications a few times, forcing applicants to "refile", and then allowing the applications (because an allowance is an easier way to get a "counter" than writing an appeal brief).

    There are some rays of light on the horizon, however. I believe that the House has approved a bill that would modify the reexamination procedure to allow considerably more requester participation (at a considerably higher fee, but still way cheaper than litigation). Also, there are periodic roundtable discussions, etc., on these kinds of issues. Finally, check out the PTO website (http://www.pto.gov) for info about making your voices heard.
  • 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.

  • 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).
  • 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?
  • by the eric conspiracy (20178) on Tuesday October 19, 1999 @08:33AM (#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.

  • 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?
  • 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
  • Scenario:
    I write OSS and it is spread widely via ftp, etc.
    Other than burning a CD to backup my HD I make no 'hard' copies.

    Sometime later..
    I discover that Big Business Inc. has just applied for/been granted a patent on the features of my SW.

    I would protest, but...

    Q1. How do I prove I published earlier?
    Q2. What constitutes publication?
    Q3. How do I do it cheaply/for nothing?
  • by Cuthalion (65550) on Wednesday October 20, 1999 @06:56AM (#1602011) Homepage
    The big difference is that software can be distributed for free.

    Okay, so you have an ingeneous solution to problem X, but will take you and a team of PHDs several years to actually get the solution implemented good, and to be aware of all the issues, and prove that it's a good solution and what all. Total cost? lots.

    If the solution's necessarily hardware, you say ScumCo shouldn't be allowed to just rip it off, and skip the R&D costs and therefore be able to undercut you and force you out of the market. All they would have would be the cost of implementing the already researched solution and manufacturing costs, which is why they'd be ABLE to undercut you even if you were running your plant pretty efficiently. That's generally why patents are considered appropriate for hardware.

    But what if it's a software solution? You and these PHDs need to eat while doing research. But now for ScumCo to rip you off, they just need to implement the algorithm you spent $x to develop, and they don't even have to worry much about manufacturing costs. So they can undercut you even further. Is it okay if they charge $250 a seat instead of your $25000? What if Microsoft becomes alarmed that someone who's not Microsoft is making money and decides to ship a free version of your product? What can you do about it? Unless you can recoup the R&D costs in between your product release and their product release, you lose because you bothered to do something new.

    The way it goes now, is if you develop something that you think it's new, and it's not, you get sued a bunch, and you lose. So, I certainly agree that the patent system needs reform. But that hardware and software are so fundamentally different that the idea of IP applies to one but not to the other is silly.


  • Microsoft's patent is pretty good, considering they actually did something no-one had done before. They took the Bayesian network principle and applied it to user-interactive systems, mainly help systems. I worked for a company (Hugin Expert [hugin.dk]) between 1991 and 1993, who were specializing in using Bayesian networks for inteactive systems (expert systems). So it is definitely not a new idea. I don't remember us doing any help systems though, it was mostly medical or mechanical diagnostics. The original mathematical breakthrought which made it possible to use Bayesian networks for interactive systems was made in the 80'ies.
  • There is an internal "Quality Review System", but it's a joke. They only sample a small number of applications, and concentrate on finding nitpicky procedural problems to send back to the examiner (see my response above regarding quotas: the quality review people also operate on (you guessed it) a quota system). The people who do the quality review are even less aware of what is going on in the field than the examiners, and just add another layer of bureaucracy. All I can suggest is that you make your displeasure known in the strongest possible terms to the PTO, Congress, the Commerce Department, etc., and suggest that the resources devoted to increasing examination quality be increased(e.g., by getting the examiners on field trips to development houses to see what's conventional in the field), providing better prior art repositories etc. Again, the people who read this site are probably some of the best positioned to know what is conventional in software development, to publish on these topics, and to get the published material into the hands of the PTO for inclusion in its prior art collection (or, e.g. on a website with bombproof date-stamping that examiners can be made aware of and can check for art).
  • by Foogle (35117) on Tuesday October 19, 1999 @07:53AM (#1602016) Homepage
    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."

  • A couple of weeks ago there was a bit of news about South Africa (if I remember correctly) completely ignoring the patents on certain drugs and manufacturing them for their population. Their excuse was that the inflated costs the drug companies charged to cover R/D and make a profit effectively kept large portions of their population from using the drugs. Apparently they formed some kind of organization to attempt get countries to allow the manufacture and sale of at-manufacture-cost drugs for people who were unable to pay full price. This organization is apparently getting a lot of support.
  • I thought patents could only be for "buildable" devices (i.e. hardware).

    The European test is still close to this: a computer program "as such" is considered just to be a method for performing a "mental act", and is therefore specifically excluded from patentability. However, under guidelines the EPO brought in in 1985, computer programs are patentable if they have a "technical effect".

    For more information, see:
    http://www.ladas.com/GUIDE S/COMPUTER/Computer.EPOJP.html [ladas.com]
    and
    http://www.jurisdiction.com/epc.htm [jurisdiction.com]
    which includes the text of the section of the law in question.

    This had led to some truly classic decisions, a real must for connoisseurs of the mind-numbingly pedantic and the bizarre:

    • A claim for an image processing system was disallowed because the wording, "A method of digitally filtering data including scanning a data array with masks...", specified no physical entity that the data represented, so was held to be a purely mental act; an amended version, "A method of digitally processing images in the form of a 2D array..." would have been okay, except they then discovered it wasn't novel.

    • Word processing, according to the Board, is just a series of mental acts. This lacks technical significance and is therefore not patentable. Since there is no technical effect, this also rules out any methods for spell-checking, or for contextually identifying incorrect homophones ('there' instead of 'their')

    • But an IBM invention, to translate printer control codes into different control codes for a different system, was patentable, because it related to the control of machinery (a clear technical effect).
    Even friends of mine studying to be lawyers are bemused... Meanwhile, to make it more complicated, the UK patent courts reckon that the new EPO guidelines (brought in under political pressure) are themselves incorrect; that its decisions on the subject are wrong; and so won't recognise them as proper case-law.

    I also found a one-day seminar with most of the main players, held a couple of years ago:
    http://www.patent.gov.uk/softpat/en /frmain.html [patent.gov.uk]
    but the couple of speakers I read seemed mostly to be congratulating themselves on how sensible they were.

    Strange world, patent law...

    • First: who is willing to establish an organisation that does nothing but reads open source code, good bad or indifferent (if there is objection to it, then a particular sort like GPLed code could be targetted), and writes the ideas and concepts covered in the code in as many ways as possible, publishing the resulting long lists of ideas and algorithms on newsprint and CD-rom? This serves two purposes- one, the CD-rom can be text-searched by the patent office (it would be a valuable service to them), and two, the newsprint copy can be notarized and stored somewhere as legal evidence. I publicize my own patentable ideas as best I can, but there's the question of proof. I really can't afford the materials or time to write a newsletter, have it notarized and stored, but somebody must begin doing this to accumulate hard evidence on prior art, and the time to start doing it is now. Who is willing? I can't do it but I would pay for it- if necessary I would budget this above food, because it's about my future.
    • Second: I see a lot of yammering about the legal forces involved here, but very little consideration of the public relations angle. We are behaving like we have to fight this using legal means which are denied to us. Instead, there's a lot of history to look at, precedent to consider, that suggests that the best thing that could possibly happen to us is for a well known coder to get nailed for infringement, be a scofflaw ("I invented this and I'm going to keep using it and sharing it with others"), and get sent to jail for contempt. That would be a martyr. Can you picture the public reaction?
    "This is Dan Rather, and I'm speaking through these bars to Chris Johnson. Mr. Johnson, why are you in prison?"
    "I wrote a video game, Dan."
    "You wrote a video game. And did you attack somebody with this video game? Was it a violent video game, or have obscene content?"
    "No. It's chess."
    "Chess is a video game?"
    "I wrote a video game that lets you play chess on a computer. Microsoft has patented playing chess on computers, and threatened to put me in jail if I didn't destroy my program, which I wrote two years before their patent was made. I refused, and, well, here I am."
    "How do you feel about being put in jail for writing a chess game on the computer?"
    "It's pretty weird. I'm also not allowed to use any computers for ten years..."
    "So you don't do anything dangerous, like write a checkers game on the computer?"
    "Yeah, that's it. But all the other prisoners only get to use Windows machines anyway, so I'm not missing much."
    "This is Dan Rather from San Quentin Prison, reporting on the fate of a man jailed for writing a chess game on his computer. Although this may seem like a rare and strange occurrence, you may be the next victim- here at NBS, we've just spent a hundred and twenty-seven thousand dollars replacing our video editing software for the same reason. We had people writing software for us, and they were sued. The difference between freedom and this jail cell for our employees totals a hundred and twenty-seven thousand dollars- the irony is, the software we're enjoined from using, worked. What we've purchased, does not, and if you see peculiar flashing lines or freezes in the video, a lack of synchronization between voice and image, take a moment to consider the price tag, because we sure do. This is Dan Rather signing off."
  • by osterby (104420) on Tuesday October 19, 1999 @08:02AM (#1602024) Homepage
    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]

  • First, Thank you for the _clarrification_ & taking the time to try and soothe our tempers.

    "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."

    Having that said, how could a patent lawyer or person at the patent orifice possibly be competent or understanding enough (I mean no disrespect) to judge a h/w or s/w technology patent request if they do not have the qualificatinos to build a board or create an application or know the physics behind the technology?

    --Clay

  • I thought patents could only be for "buildable" devices (i.e. hardware). What precedents started the ball rolling with software?
  • I'm not sure that defensive patenting is a better legal defense than prior art. If somebody patented the use of the middle mouse button, and then threatened to sue, it seems to me that the best defense would be pointing to X (the windowing system). I can personally vouch that it has been using the middle button since 1989 (when first I met X)--and that's enough to get the new patent to fail the "novel" test.
  • 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.
  • 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 ?

  • 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.
  • "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?
  • 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).

  • 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!

  • ". . . 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.
  • 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?

  • by Anonymous Coward
    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.

  • Ok, I read like the first few sentences and thought imediately, if, unlike copyrights, patents don't serve to protect people from others stealing/copying their ideas, but instead allow them to create a monopoly on an idea, WHY do we even have them? The two characteristics of a patent listed were novelty, and non-obviousness. If another inventor /invented/ a /novel/ /non-obvious/ piece of work which was similar to yours, you should NOT have the right to force him from selling or distributing or using it, as long as he didn't steal any content or ideas from you.

    Does this not make sense. Really...if we have copyright law, what are patents for? Sure, you can say patents are for ideas, whereas copyrights are for materials things. That still doesn't answer the question what good patents are. Ideas could just as well fit under "copyright"able items (not that that is a great idea, but it has to be better than patents).

    I say if you did something cool in your backyard, so to speak, you should not be able to be stomped on by someone bigger just because he "called it" first.
  • Two reasons "obvious" patents get passed:

    1) If a patent clerk refuses a patent, (s)he may
    be called in to court to defend the refusal. That
    wastes their time they'd rather be doing their
    job, and is a stress (_any_ court appearance is
    stressful) they'd rather not go through. Thus,
    its far easier to just pass the patent and let
    some challanging company go through the rigor
    instead.

    2) Patent office researchers don't get paid
    enough. To really know whether a patent is
    valid, one must know the industry, and have
    the intelligence and education to make a proper
    decision. If you have that kind of experience,
    would you work for the PTO that pays you standard
    government salaries, or would you work
    competitively in the industry itself? Worse still
    are those who are paid a TON to write the
    patent's, legaleze since there's so much money involved if it passes.

    IMHO, there really is no way the PTO can really
    get the right kind of people working for them.
    The only exceptions are those that _want_ to do
    it, and they're getting fewer and farther
    between...

    The system itself is screwed.
  • We can agree to disagree, of course :)

    -----------

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

  • I think that the patent system is broken. Useless. Any benefits that may have been caused by it are now lost.

    The idea of a patent agency is that the government trades a temporary monopoly for full disclosure. Someone gets the right to be the only company making a product (or in some cases, doesn't, but gets royalties) and they tell everyone how to make the product so that when the time limit is up, competition will be helped.

    It's a great idea. It's probably worth it for a company to trade the chance for a secrecy enforced monopoly for a temporary guaranteed one. It also helps the other companies because everyone gets the information at the same time, not just the sleezy ones who try to buy trade secrets. The consumer benefits because the company can make back R&D costs from higher prices, and thus will bring out a quality product, and the consumer benefits later as well, when the prices drop (ideally after the first company made back costs) and the device gets cheap.

    But, what went wrong?

    One thing is that protection is too long. And not just in the software field, in any. It doesn't take ten years to gear up a factory, or scour the country for trained engineers. The protection doesn't need to be so long to guarantee a monopoly for a time. Five years might be a better length.

    Independent discovery (which is a defense in copyright cases) means nothing. This is a *big* problem. We've all heard of Elijah Grey(sp?) and Bell, and how they both had a telephone, but Elijah was a day(week?) late to patent it... If someone else independently invents something you're trying to patent, or just did, and can prove it was independent, then this should dismiss your patent on grounds that it was too obvious.

    It should be "Use it or lose it". If a company patents a competing technology, RISC vs CISC, or Rotary vs Reciprocating engines, and then just lets one sit unused, the patent should be invalidated. The idea of a patent is that it gives the inventor a monopoly on the patented device, not that they can shut down discovery in whole fields to protect themselves for competitors looking for better methods.

    This whole triple-indemnity thing stinks. If a patent isn't specific enough for a professional in the field to understand then it's not specific enough in its scope to warrant protection. (Any law saying layman can't function in the field of law is "By lawyers, for lawyers" and is **bad**, it undermines our whole society.)

    The patent office should cover the initial cost of the trial for both parties. This way small businesses can afford to sue companies previously immune due to lawyers, and large companies can't put small companies out of business through legal fees. The cost could then be collected from the loser of the trial. So if you sued needlessly, it'd be free until you lost, then you'd have to cough up, so it wouldn't allow free attacks on companies, but it would enable you to protect yourself. Fines should also be attached to the court costs in cases where the patent laws were being misused. (If the patent office allows patents without checking them carefully and fully outlining the areas of coverage, then they should be made to front the costs of the inevitable lawsuits.)

    The court proceedings should be handled by a special lawyer-free court for purposes of determining if infringement happened. Then if it did, passing it to the regular courts for damages. This would further lower the prohibitive costs of participating in the legal system. Much like many small-claims courts don't allow claimants to have a lawyer, because the judge plays an investigative role.

    I can't think of any other specific changes now, but I'm sure there are more.

    The main idea is to bring the patent system back to one that lives up to its old purpose, to encourage competition. To do this we need to punish abusers, lower entry barriers, and get rid of excessive legalese.

    Not only should there be no area where non-lawyers are cautioned to stay away from, but if the field is better handled by engineers why do we even need the lawyers if we set the system up right?
  • ||Everyone, except entities which enforce software patents, of course.

    |Nah, that'd just bring the sharks out and make you look meanspirited. Instead, be like Ghandi and retain the moral high ground.

    If I recall correctly, Ghandi had no problem with fighting non-violently against injustice.

    Retaining the moral high ground is what we are doing right now: we publish our inventions in source code without patenting them, meaning everybody including the other side is free to use them. If we want to continue doing that, then no open source patent portfolio is needed. If however we want to fight against software patents that hinder us, then we need to assemble patents ourselves and use them aggressively.

    --

  • Funny story, but you cannot have criminal liability for breaking a civil law. In other words, you cannot go to prision for violating a patent.
  • If I hadn't posted in this thread already, I would. This is the best written post I've seen yet on how to deal with the situation!
  • 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.
  • 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.
  • 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.

  • 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.

  • 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!

  • 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

  • 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.

  • Unfortunately I'm not in California. I'm in Ottawa, Canada.

    In case you're interested, the contract I signed reads:

    The undersigned Employee hereby promises the Employer:
    1. To promptly disclose to the Employer in writing all inventions, discoveries, developments, innovations and computer programs ("inventions") made, in whole or in part, by the Employee during the course of or in relation to the Employee's employment with the Employer, whether conceived or developed during working hours or not, including but not limited to inventions:
    2. resulting from work performed by the Employee or any other employee of the Employer for the Employer
    3. relating in any manner whatsoever to the present or contemplated business of the employer, or
    4. resulting from the use of the Employer's time, equipment, materials, or work facilities;
    to assign and hereby does assign to the Employer all the Employee's interest in and title to inventions required to be disclosed by the Employee to the Employer
    to execute at the Employer's request, whether made during or after the Employee's employment with the Employer, any instruments prepared by or on behalf of the Employer or the Employer's successors in title acknowledging or assuming the Employer's interest in and title to inventions required to be disclosed by the Employee to the Employer or assisting the Employer or the Employer's successors in title to obtain any registered copyright, design, patent, or any other intellectual property rights whatsoever.
  • You raise some interesting points, and I feel certain that I haven't fully understood what you are proposing, but how do you propose to deal with the following situation with respect to your hypothetical patent pool:

    As a patent attorney, you undoubtedly have seen the situation where Large Corporation (for fun, let's use the totally fictitious designation "M$") approaches small corporation or independent developer, plunks down a portfolio of 20 patents, and says "Prove to me that your product doesn't infringe one or more of these." Faced with potential damages and legal costs sufficient to bankrupt him, even the most pissed off small corp. or individual will usually back down and either get out of the business or take a license if there is any substantial possibility of getting tagged for infringement on any of the patents.

    Now, suppose the M$ approaches the patent pool, and threatens each of its members the same way, but instead of demanding that they cease and desist, or that they take a license to M$ patents, M$ demands an exclusive license (with right to sue for infringement) to the pool patents.

    How do you prevent the pool members from caving?
  • Intresting side point, that means that Lincoln couldn't have become a lawyer in todays world. Since he didn't even have a high school diploma. hmmmmmmm Not sure what that means but I believe it speaks of elitism. What next, you can't be an inventor without and engineering degree? Pity poor Edison.
  • People shouldn't be required to obey rules/laws/etc that they cannot understand.

    The government recognizes that only patent lawyers have the least chance of understanding patents.

    Therefore, anyone who is not a patent lawyer should be allowed to ignore patents.

    One of the basic principles of a fair set of laws is that everyone can know and understand what laws they are supposed to follow. If people cannot know/understand fully the current body of law, the body of law should be simplified until everyone can understand and follow it. This includes things with the force of law, like patents.

  • To respond to the simple question as to whether you can become a lawyer without going to law school: I believe there may be some states (actually, very few) that actually do not require a law school degree before passing the Bar Exams. Please note that some states actually require a law degree from an ABA-approved/certified law school. If you are in a state where you can get called to the bar without a law degree, then the other posts in this thread apply. Be prepared to spend many hours of studying just to pass the Bar Exams. Also, a background in some kind of science is almost a necessity for most types of patent law. If you are not afraid of spending the next 6-10 that it may take you to become a patent attorney, don't let your age hold you back. I have met quite a few people in the course of my studies that decided to change career paths and head to law school even in their *middle* years. Cheers
  • 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 :-)

  • by Tim Macinta (1052) <twm@alum.mit.edu> on Tuesday October 19, 1999 @08:50AM (#1602071) Homepage
    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.

  • 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....
  • by vlax (1809)
    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.
  • Hey, FWIW, it is my understanding that most politicians *are* lawyers.
  • 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.
  • 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
  • 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.
  • 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.
  • 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.
  • 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...


  • We shoudl patent the slashdot effect so that any website leading to a similar effect should pay Rob and Jeff megabucks...but wait, aren't they wealthy enough now? ;)
  • As every other facet of our legal system, Patent law has been corrupted and twisted for the benefit and gain of the very people who are trusted to implement the legal system.

    I work for a company that is being forced into the creation of patents, just because our competitors are becoming patent creating machines in their attempts to take over our market and destroy us.

    This patent systems is allowing extremely generalized patents that are meant to do only one thing, destroy competitors rather than protecting ideas. Patent law is being used as offense rather than defense.

    With all of this happening before our eyes, I can tell you that there is only one interest group that is benefitting from it. It is not the corporations and it is definetly not the little guy, try to guess who it is.
  • No, patients apply to both objects and processes. Software and algorithmic, i.e. LZW encryption, patients usually describe a process, and the equipment used, that is patiented.
  • I'd have to agree and I am speaking as a former patent examiner. The system needs a total revbamping. It really servers no use now. Patent examiners cannot do an effective search it is impossible. Even when an examiner can do a good search and come up with an argument it is still subject to legal litigation if the person seeking the patent chooses to persue it. Cases can go to court and stay in litigatio for years, just like civil suits do. The whole system is now maintained by lawers, and protects nonoes rights really but those that can afford to maintain there patents. Yes I said maintain, cause once a patent is issued it must be maintained and this costs money Oh the author of this article forgot to mention that. It is all just about money money and who has the better attournies.
  • 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.

    One of the things that Biotech really changed is the appreciation by Universities of the value of their intellectual property. Nowadays universities are making a lot of money from patent licensing. When I was in school nobody cared about the potential commercial uses for your R&D. If you see an academic result in the literature now, you can bet that some university IP department examined it for patent potential, probably before that article was published.

    Your statement about this killing research bothers me. Research isn't about copying somebody else's work; it's about finding a better way to do something, and to encourage it you must reward those that do find that way. Without patents all we would have is copying. You wouldn't be looking for a different algorithm for web page searching, you would just copy what Google did. And Google would have no protection for their invention, so they would have no incentive to invest money in the research process, or the process of bringing it to the web. And if they did commercialize it, you can bet they wouldn't be going around publishing in places like Scientific American how they did it.

    Patents are essential to building the technology base. Without patents companies would never publish anything, restricting the free flow of ideas in society. Patents are a device to get inventors to reveal their technology in exchange for exclusive rights to that technology for 20 years. The value of this has been well established over the 200 year history of patents in the US - a patent system modeled after that of Great Britain, which was the home of the industrial revolution.

    However this is not the same as stating that the Patent process we currently have is anywhere near perfect. I think that it is too easy to get a patent. Patent examiners are overworked, and not paid enough to attract real experts. Real reform is needed.
  • The patent pool would have to be maintained by an unincorporated non-for-profit organizations of individuals *and not* a small business or coalition of corporations. The M$ corp could threaten and indeed sue but they would more or less be wasting their time b/c the association would be more or less judgment proof.

    We have to remember that many of the open source software developers are students. In fact, probably a huge number of them are. As such, they are poor and judgement proof (I'm a student too, so I know poor).

    Alternatively, this patent pool would have to gain political momentum like the Open Source software movement has. We've seen large companies like Sun, IBM, Red Hat and others become heavily involved in this area. The same pressures that are upon them to open their source code would also bear upon them to contribute to the patent pool. This would remove the judgment proof status of the association, but it would give it a deep pocket. It would also do to patents what Open Source licenses have done to copyright protections of software.

    As lawyers, we know the patent pool licensed under something similar to the GPL/DFSG-free licenses is the only way to prevent the Open Source movement from being killed in its tracks. The GPL is more of a social mantra than a powerful legal document. It is a powerful social force, but has not been legally tested. Many open source applications can be assembled in a new way an a patent filed on it would create difficulties for the authors of the individual applications. The patent pool is necessary. The risk of liability is a real one but we can minimize the costs by recruiting corporate sponsorship.

  • It is obvious that law needs a better language, and English is NOT it. Lawyers like to pretend
    that their "years" of training allow them to interpret what a law or legal document says perfectly, but its clear that English is just too vague.

    The problem is, lawyers, as a bunch, don't seem bright enough to be able to come up with a good, strict, "law" language and grammar that could be standardized and learned by anybody with the time, talent, and patience (just you would a programming language).

    You could argue that they are NOT stupid, but that makes them willfully negligent (which is worse). That means they really don't want just anybody learning the "language" of law from a standards document and giving them competition.

    So much of law is hacking English to make it "rigid" that the whole system is becoming a joke.
  • There are many volunteers on ompages.com that seek to enhance our freedoms by combining technical and legal analysis and solutions.

    We have an 'idea laboratory' environment, and I encourage anyone interested in implementing a patent pool system to sign on the lists, announce your intentions and watch as people start to volunteer to help. I will help promote the project and seek the necessary professional assistance that would become important to the vitality of the project. I'm very committed to these types of projects and you can be sure to have somone who will support your efforts with efforts in kind.

    The patent pool is as necessary as the open source licenses, but it is much more involved legally and financially. That does not mean that it is a waste of time; it means that it requires a more sophisticated organization. Let's get to planning and implementing it now!

  • 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.)
  • 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.

  • by Chuut-Riit (48419) on Tuesday October 19, 1999 @09:08AM (#1602104) Homepage
    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.
  • 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

  • by werdna (39029) on Tuesday October 19, 1999 @09:46AM (#1602119) Journal
    As a patent attorney and regular slashdot contributor, I also commend the author for bringing home some of the essentials of patent practice. From the responses to date, it is apparent that he has hit a nerve.

    I would like, however, to clarify a few points. The enforcement of a patent is something of a Poker game -- it costs a small fortune to defend, yes, but it costs an equally small fortune to assert it as well. Further, the Plaintiff will also risk the patent with each complaint he files -- for every time it is asserted, a judge or jury can hold it invalid, which holding unless reversed by the Federal Circuit or the Supreme Court has the effect of destroying the patent forever.

    Thus, a Plaintiff with money suing a defendant without money puts a valuable asset at risk, probably without any chance of recovering a dime. One doesn't go typically go "all in" unless the pot is worthwhile. But to deter the plaintiff from going "all in," it is critical to know how to play the hand.

    One vehicle, and an important one used by corporations, is the idea of a pool of patents to be used for cross-licensing purposes. When a non-critical patent is asserted, and the claim is adjudged to be non-trivial, the corporation can offer to cross-license as an alternative to raising counterclaims for infringement, and placing the plaintiff on the defensive. This is often an effective way to resolve most of the harm.

    Accordingly, I disagree with those who think that it would be pointless to pursue patents for the open source community. To the contrary, having available a pool of patents, mutually enforceable against an OSS defendant, may deter many of the bullshit claims.

    Yes, they require time and effort to obtain; and yes, they cost money. However, there is a raft of patent attorneys out there who sympathize with the open source movement, and who would be willing to facilitate under appropriate basis the filing and prosecution of such applications on a pro bono basis.

    Part of the difficulty lies with the community, however. The aversion to the patent system has led to a sense that it would be "wrong" to apply for patents in self-defense. From what I have written here, I obviously disagree with this point of view. Folks like Karsten Self and others have been promoting patent pools for some time, and I encourage them and the community to proceed with building up the OSS Patent Pool.

    I, for one, can be counted on to provide services to that end. I invite other patent professionals to do so as well.

    I invite other patent attorneys and patent agents who feel similarly to contact me by e-mail or otherwise, so that we may begin to marshall our forces to that end.
  • by vlax (1809)
    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.
  • The most definitive current precedent in US law appears to be the judgment in STATE STREET BANK & TRUST CO. vs SIGNATURE FINANCIAL GROUP, INC.
    http://www.law.emory.ed u/fedcircuit/july98/96-1327.wpd.html [emory.edu]

    Just about any computer program that does anything useful and novel can now be patented, if the data it works on has some identifiable meaning in the real world.

    The judgment also blew away a previous assumption that 'business methods' were somehow unpatentable.

    IMHO this does make rather more sense than the (very confused?) European law I described above. On the other hand, the European patent offices are allegedly much better resourced than the US PTO; perhaps this is also part of the problem

  • 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)'
  • 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?

  • by ucblockhead (63650) on Tuesday October 19, 1999 @08:14AM (#1602134) Homepage Journal
    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.)
  • by ajakk (29927) on Tuesday October 19, 1999 @09:20AM (#1602144) Homepage
    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
  • 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?
  • 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?
  • 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.
  • 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.

  • by Merk (25521) on Tuesday October 19, 1999 @08:20AM (#1602165) Homepage

    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)

  • by doogieh (37062) on Tuesday October 19, 1999 @08:22AM (#1602167) Homepage

    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.

  • Right, the judgment proof situation is really only a deterrent to the M$ corp from initiating suit if they feel they can't intimidate the poor kid anyway.

    My feeling behind the fund problem for our hypothetical non-profit corp is that the IBMs of the world could be coerced by social pressures to contribute their patents to the pool (and hence their resources) for the same reason that they cross-license patents to each other. They seek to minimize risk of litigation on patent infringement claims. The patent pool would provide this risk minimization and it would make them look like 'white hat' corporations who support the little guy. In essence, this is the same reason they have jumped on to the open source bandwagon.

    Time is of the essence. Who knows for how long these big corps are going to support this movement. We can do this; we should do this.

  • It has been suggested that the world must end because software inventions (that is to say, a "practical application of a mathematical algorithm, . . . [by] produc[ing] 'a useful, concrete and tangible result") may be patented. With the following, I do not propose to defend the patent system per se, but rather to describe what the system *is*, as an alternative to the straw man folks have been beaten down.

    The subject matter requirement. Software is not invalid merely because it relates to an algorithm, any more than a design for a catapult is invalid because it relates to the law of gravity. If the invention imposes structure beyond the most abstract account of an algorithm, that is sufficient. Like it or not, that's the law. No critic should enter the debate unarmed on this point. So, load up your ammo and study the most recent and authoritative statement of the law on the subject matter requirement. [emory.edu]

    The Novelty Requirement.Certain kinds of prior publication and/or public disclosures of an invention (in jargon, "references") can invalidate a patent claim if, but only if, the claim reads on the reference. A claim reads on a reference if, but only if, each and every limitation set forth in the claim appears in the reference. As an example, if my reference frobozinates an array by (i) prefreezing it; and (ii) using a dual coloration method to frobozinate it, and the claim is directed to: (i) prefreezing; (ii) slighly defrosting; and (iii) using a single coloration method, the claim is deemed novel because it has an additional step not found in the reference. If the claim is directed to: (i) prefreezing; (ii) using a single coloration method with a miracle dip, the claim is deemed novel because it doesn't have the dual coloration limitation. Finally, if the claim is directed only to the use of general frobozinating with a prefreezing step, this claim is not novel, because the claim "reads on" the prior art. (even though the claim doesn't include ALL the steps disclosed in the art).

    The Utility Reqirement. This is not likely to be an issue, unless the claims are directed to something criminal in nature (automated locksmithing or cracking technology, perhaps) or something generally considered impossible (halting problem, perpetual motion, etc.)

    The Unobviousness Requirement. As you may have guessed by now, this doesn't mean what you think it means. Unobviousness is essentially a way to "loosen" up the rigid (and easily avoided) novelty standard by stating that even if a single reference doesn't have every element of a claim, the differences between the reference would have been obvious to a person of ordinary skill at the time of invention.

    In practice, you can best understand this standard by imagining a programmer version of the film character Vern. Dim-witted and not terribly self-aware. But Vern has a unique, almost idiot savant talent, he knows everything. Every book ever published -- every program ever publicly used -- every thing that legally constitutes prior art with respect to the particular claim.

    So, if a claim is directed to an A, B and C; and one reference understood only by a handful of high-level computer scientist philosopher-kings discloses A and B, and another reference in a Ph.D. Thesis from the late 1900's with only a single copy remaining, but publicly available in a disused lavoratory in Lucerne discloses B and C, Vern would know both references.

    However, Vern would not think to combine them unless it would be "obvious" to do so. Under the patent law, this basically means that there is a specific teaching to combine the particular references in one or the other of them (or in another reference). It is not sufficient to certify after the fact, when all the references are gathered and the problem is placed before you in view of those references, that you would think it obvious to combine them. Vern generally isn't that bright, unless the differences between the claim and one reference are effectively trivial design decisions.

    So, in short, some relatively small number of references must combine to identify EVERY feature claimed, and there must be some reason to combine the references.


    Conclusion. It is for these reasons that noone will ever claim a well-known program idiom. A claim directed to the idiom alone would be invalidated by a single program exhibiting the idiom.

    On the other hand, the obviousness or non-novelty of a particular idiom does not render a combination of elements invalid unless the prior art (or an "unobvious" combination of prior art) contains all of the elements of the combination.

    Clearly, the preceding discussion is (intentionally) a super-simplified description of the issues of validity. My efforts in describing the foregoing is to help my colleagues to develop an intuition as to what the law *is*, so that they can better articulate their criticisms of the system or of particular patents with respect to the law, and not to a straw man.

  • by ajs (35943) <ajs@@@ajs...com> on Tuesday October 19, 1999 @08:26AM (#1602190) Homepage Journal
    For even more information see one of these fine references:


  • 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?

Testing can show the presense of bugs, but not their absence. -- Dijkstra

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