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New FOSS History Wiki Project & Ravicher Testifies to Congress on Patent Reform
Wednesday, June 08 2005 @ 09:38 AM EDT

There is a new FOSS history project, a Wiki, and the folks doing it asked me if I'd let you know about it. Here's the PDF, the jumping off point.

It's an attempt to write an ongoing, real-time history of what they call the "politics" of FOSS adoption. By that they use the term political loosely, meaning things like Munich and Brazil going Open Source, naturally, but they also include a section on litigation in the chapter "Legal Uncertainty in Free and Open Source Software and the Political Response", by Jennifer Urban, which includes the SCO litigation, and yes, Groklaw is in there. Of course, Groklaw isn't political in any sense, as the article correctly points out. I knew many of you would be interested in learning about this project.

A description of the Wiki project, in their own words:

The Politics of Open Source Adoption

Read – Contribute – Win!

The Social Science Research Council invites you to collaborate on a real-time history of the politics of open source software adoption. We are pleased to offer a first version of this account—POSA 1.0—in both .pdf and wiki versions, at http://www.ssrc.org/wiki/POSA . POSA 1.0 includes contributions from Gabriella Coleman, Kenneth Cukier, Shay David, Rishab Aiyer Ghosh, Eugene Kim, Volker Grassmuck, Bildad Kagai, Nicolas Kimolo, and Jennifer Urban, and is edited by Joe Karaganis (SSRC) and Robert Latham (SSRC).

Our project begins with the observation that accounts of the Free and/or Open Source Software (F/OSS) movement, to date, have been oriented mostly by the improbable fact of F/OSS’s existence. At this stage of F/OSS development and advocacy, we want to ask a different set of questions—not how open source works as a social and technical project, or whether open source provides benefits in terms of cost, security, etc., but rather how open source is becoming embedded in political arenas and policy debates. For our purposes, understanding the ‘politics of adoption’ means stepping back from the task of explaining or justifying F/OSS in order to ask how increasingly canonical explanations and justifications are mobilized in different political contexts. POSA 1.0 maps many of the different kinds of political and institutional venues in which F/OSS adoption is at stake. It tries to understand important institutional actors within those venues, and the ways in which arguments for and against F/OSS are framed and advanced. It seeks to clarify the different opportunities and constraints facing F/OSS adoption in different sectors and parts of the world. It is an inevitably partial account that--we hope--can be extended and deepened by other participants in these processes. We invite your help in preparing POSA 2.0.

To sweeten the pot, two prizes of $250 will be awarded to the best new contributions to POSA 2.0.

This project was made possible by a grant from the Ford Foundation.

You can contribute to the project by offering comments and edits, or by contributing your own new piece.

If you run out of things to write about, here is an item in the news that comes to mind. PubPat's Executive Director Dan Ravicher is testifying today to the US House of Representatives on proposed patent reform.

Here's Ravicher's statement [PDF] to the House on patent reforms. One excerpt:

Before commenting on the proposed Patent Act of 2005, a very important point about the process by which patent policy is formed must be made. Despite what most people believe, the patent system has extremely far reaching effects on all Americans. Specifically, wrongly issued patents and unsound patent policy harm the public by making products and services more expensive, if not completely unavailable, by preventing scientists from advancing technology, by unfairly prejudicing small businesses, and by restraining civil liberties and individual freedoms. Although the public can indeed benefit from a properly functioning patent system, since patents are government sanctioned restraints on freedom and competition, the public can also be severely harmed by errors within the patent system. For that reason, patent policy should be crafted with full knowledge of all of the effects, both positive and negative, the patent system is having on all people.

Unfortunately, however, it is too often the case that not all of the interests affected by the patent system are adequately represented in patent policy discussions. Specifically, the interests of the non-patent holding public are almost always absent from any meaningful participation in decision making about the patent system, despite the fact that they bear the brunt of its burdens. The lack of representation of the public's interests is due in part to the fact that the patent community culture tends to dismiss the opinions of those it sees as outsiders, but it is mostly a result of the public not yet realizing how the patent system affects them.

Regardless, patent policy should be made with consideration of all of the public's interests, not just the specific interests of the PTO, patent holders, patent practitioners, and large commercial actors.

He then suggests the following:

  • Make Inventions Available to the Public as Quickly as Possible
    The patent system's ultimate purpose is to advance technology, not line the pockets of patent holders. Although these ends are typically aligned, there does come a point at which over rewarding patent holders can in fact retard technological development. This is why the patent right is limited, such as by a finite term. Similarly, if a patent holder is not itself making its invention available to the public, courts should take great pause before issuing an injunction against another party that desires to do so.. . . .

    Our patent system is an economic tool to coordinate technological development that is designed to ensure inventive effort is adequately rewarded and quickly adopted to benefit the American people. Thus, when a patentee does not deliver her invention to the public, she should not be allowed to stand in the way of others willing to do so if they can compensate her fairly for the advance she identified. Allowing her to deny the American people a significant advance incorrectly places her private right above the needs of the public. For example, a patent holder with a valid patent on the cure for AIDS who does not make that technology available to the public should not be allowed to prevent others from doing so. . . . Anytime a technological advance is kept from the American people, the public suffers unnecessary and unjustified harm. Under the proposal as previously drafted, patentees would be guaranteed adequate compensation by the court. Thus, the only complaint they can be heard to made is that they would not get more than they deserve. But, over rewarding patentees would result in corresponding harm to the American public and, as such, is not sound public policy.

  • Eliminate or Curtail Continuation Applications
  • Implement a Strong Post-Grant Opposition Procedure
  • Correct Federal Circuit's Misapplication of Patent Law
  • Remove Improper Incentives on PTO to Grant Patents
  • Protect Civil Liberties and Research
    Patent law should not trump Constitutional rights nor be used to impede its own goal of advancing technology. Unlike copyright and trademark law, under current patent law there is no exemption from infringement liability for exercising Constitutional rights. Although perhaps previously not as relevant to the exercise of individual freedoms as those other forms of intellectual property, patent law today impacts many, if not most, of our most sacred rights, including speech, privacy, religious expression, assembly, and voting. This is partly because patent eligibility has been expanded by the Courts and partly because everyday life is becoming increasingly dependent upon technology. As such, there should be a statutory exemption from patent infringement for the exercise of Constitutional rights. Further, since the mission of the patent system is to advance technology, it seems improvident to subject to infringement liability technological research. As such, there should also be an exemption from patent infringement for research.
  • Check Patent Validity Against Broadest Reasonable Scope of the Claims

I hope they can hear a man who says the purpose of patents is to promote technological progress, not to stuff the pockets of patent holders.


  


New FOSS History Wiki Project & Ravicher Testifies to Congress on Patent Reform | 70 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
New FOSS History Wiki Project & Ravicher Testifies to Congress on Patent Reform
Authored by: Groklaw Lurker on Wednesday, June 08 2005 @ 11:53 AM EDT
"...PutPat's Executive Director Dan..."

I think it is spelled PubPat PJ...


---
(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

my add
Authored by: meshuggeneh on Wednesday, June 08 2005 @ 11:58 AM EDT
  • Revive the obviousness test

[ Reply to This | # ]

Corrections Here
Authored by: Anonymous on Wednesday, June 08 2005 @ 12:00 PM EDT
you know the drill

wb

[ Reply to This | # ]

OT Here
Authored by: Anonymous on Wednesday, June 08 2005 @ 12:02 PM EDT
How was that you put HTML Links??

WB

[ Reply to This | # ]

Obligations for a Patent Holder
Authored by: Anonymous on Wednesday, June 08 2005 @ 12:04 PM EDT
The problem that I see with patents, is that they give exclusive rights to
pretty much anything as abstract as a new idea. However they don't come with
obligations.

Nearly every other right you have is granted along with numerous obligations.
Constitutional rights comes with the obligation to uphold and abide by the laws
of the land.

Patent (and copyright) holders should be obligated to provide their end of the
informal social contract that these sort of protections offer. They should make
the technologies/ideas available and widely known. If they fail in the
obligation then they should lose their rights as well. If the word isn't
available for license or purchase then the monopolist isn't meeting their end of
the bargain.

This would solve the problems of patent abuse. In many ways I'm against software
patents altogether as they wrongly seem to assume that using a computer for
something is some sort technical marvel that should be protected. However I'd be
less inclined to ignore them completely (like I do now) if I had faith that bad
patents and patent holders who were abusing their monopolies weren't such a huge
issue.

This shouldn't disadvantage inventors in any way. Presumably they'd be more than
happy to sell/license their inventions.

The wording would be a bitch though, otherwise you'd have the same loopholes
that led to this mess in the first place.

[ Reply to This | # ]

Patent Reform Suggestion
Authored by: lightsail on Wednesday, June 08 2005 @ 02:33 PM EDT
The patent reform that I would like to see is correcting the blanket one size
patent fits all innovation, reinstating the working model requirement and adding
a level of liability to patent process.

Patents should require a statement of scope: The invention is only X percent of
a total working system. the length of the patent would be based on the value the
innovation added to the total system. A stand alone, complete invention would
qualify for the maximum term. A minor upgrade of a feature of an otherwise
independent system would be granted a patent with a very short term.

Every patent should require a complete working model that fulfills every claim
of the invention. This model would be required to be maintained for the duration
of the patent. Records of the model would be required: photographs and video.
The model would be required to clarify the initial patent decision if needed.
After this point, the model would be returned to the inventor for storage. It
would be required to litigate any claims. Thus the model would be required to be
stored for the life of the patent.

The impact of a patent on the competition is enormous with little downside. The
overturning of a patent should provide ,for anyone who can show that the bogus
patent had a chilling effect on their business, a significant avenue of
financial recourse.

[ Reply to This | # ]

Corrections here for all to see
Authored by: artp on Wednesday, June 08 2005 @ 04:09 PM EDT
Have at it!

[ Reply to This | # ]

OT comments for all to see
Authored by: artp on Wednesday, June 08 2005 @ 04:11 PM EDT
Check the example for HTML posts below the text entry box, and set Post Mode to
"HTML formatted".

[ Reply to This | # ]

"Legal Uncertainty" - I don't like the sound of that
Authored by: Anonymous on Wednesday, June 08 2005 @ 04:23 PM EDT

I think it's been established that F/OSS has no more "legal
uncertainty" than proprietary software.

When you start commenting on the "uncertainty" you are playing
msft/scox's game. The very fact that you call it that, and write about it; gives
credibility to the idea that there could be something wrong. The issue is at
least open for debate.

- walterbyrd

[ Reply to This | # ]

Groklaw not political?
Authored by: Anonymous on Wednesday, June 08 2005 @ 04:54 PM EDT
Maybe not in the sense of supporting a particular government party or
politicians, but surely Groklaw is political in the sense that it advocates a
position involving social relationships of power and authority. The question of
who controls intellectual property, who controls software, patent legislation,
etc. are all political questions that Groklaw has never shied away from.

[ Reply to This | # ]

Two small steps
Authored by: Anonymous on Wednesday, June 08 2005 @ 07:04 PM EDT
I personally believe the whole idea of patents is seriously flawed. However I am realist enough to know that others are not yet persuaded of that and that the chance of getting patents completely scrapped in the near term is pretty close to zero. What I'd like to see out of the patent reform process is two small steps.

1. Separate out patents on pharmaceuticals and medical technology from other patents. Take them out of the control of the patent office and put them under the direct control of the FDA.

Integrating the patent approval process with the process of getting FDA approval for drugs makes a great deal of sense. The FDA are in the best position to check if a claimed medical benefit is real and it makes sense to have the process of obtaining approval for use of a drug integrated with the process of obtaining a patent for that use.

I'd also like to see them given the power of binding arbitration for licensing of medical technology, so that a patent holder cannot block others completely from making a particularly useful drug. This would give the FDA some greater degree of power over the nature and extent of the monopolies being created in this area.

The FDA knows what the true costs of medical research are, knows the importance and value of each drug, and is in touch with the nature of the harm and distortions that monopolies on drugs and medical technology are causing to the practice of medicine in a way that the patent office is not.

2. Institute a process whereby the patent office itself initially adjudicates patent disputes, and completely eliminate the presumption of validity. Thus every patent action immediately opens the validity of the patent to question.

In examining the patent claim the patent office would be expected to investigate the patent more thoroughly, and would be expected to clarify the exact extent and nature of the monopoly powers granted by the patent. The findings in each case would be appended to the patent so that with each patent action the nature and extent of what is patented becomes more and more clear. Conceivably the patent office could find the original patent completely invalid, or could clarify its boundaries to such an extent that it becomes much more specific and thereby non-dangerous.

This would force the patent office to clean up its own mess which should improve the quality of the orginal patent granting procedure. It would lighten the burden on the court system imposed by bad patents. It would eliminate the use of threats of patent litigation with dubious and vague patents. A dubious patent would become a much less effective weapon - a petard mortar - and therefore a much less potent threat.

With each action the exact boundaries of valid patents would become more clear. It would also provide a higher class pool of patent information. One could search the tiny fraction of patents which had actually been litigated instead of wading through a huge database containing patents for schemes for `faster than light' communicators, perpetual motion machines, nappies for dogs, ways of making sandwiches, and other technological marvels of the modern age.

[ Reply to This | # ]

Nr 13?
Authored by: Bas Burger on Wednesday, June 08 2005 @ 08:45 PM EDT
The advertising volume.

One can measure the quality of the goods/service by the volume of advertising.
Did you ever see highly exposed advertising done by star restaurants? Of course
not, same goes for many real quality goods/services. More than once you find
that real quality is often hidden on places where you never expect it's base.
Did Groklaw ever had to advertise?

All this is a example that good things are found always, first by connoisseurs
and later by late adopters and later the large public. Commodity and value do
not bite persé, certainly not for the end user but it does need people with
vision to be able to add that value in reality.

The volume of advertising, buying reports, spreading FUD is increasing this
moment with a ever increasing rate, just like spam and virii. This tells me that
people high up at Microsoft are getting somewhat desperate. Microsoft will
sooner or later end up like the RANDS, BULLS, HONYWELLS, DECS etc... of this
world. Either bankrupt or bought by a competitor, yes it can happen.

Running a public company that size cost a lot of money (running costs) and is
top sports, it needs people that keep a cool head and have a good condition both
mental (vision) and physical (stamina). Running around like a Dodo shouting
"Developers, Developers, Developers" is not really a good way of
wasting your energy and ki.

I am not in the position to make bold predictions, but I can smell fear and
desperation in the air...

Bas.

[ Reply to This | # ]

New FOSS History Wiki Project & Ravicher Testifies to Congress on Patent Reform
Authored by: rben13 on Wednesday, June 08 2005 @ 09:35 PM EDT
Patents were intended to spread the knowledge of the invention, not just secure
rights to it. Unfortunately, patents that are being granted today are both broad
and ambiguous. Often the patent applicants seem to be doing their best to
conceal their invention rather than disclose it.

The U.S. Economy has become an economy that is largely based on ideas. I think
that our Congress is realizing this, and has been misguided on how best to
nurture this kind of economy. Contrary to what many would have them believe, you
won't fuel and economy of ideas by limiting the flow of ideas and awarding
exclusive rights.

We should be thinking about how to get new ideas spread out into our economy as
quickly as possible. It's important that the inventors get proper compensation,
but the more I think about it, the less I believe that they should be allowed to
prevent someone from using their invention.

I believe we need a simplified formula for awarding license fees to patent
holders, so that anyone can instantly calculate and understand his or her
liability when utilizing a patented idea. This way, if I want to use someone
elses idea in my new invention, I can. I simply have to pay him a license fee
according to the formula. I can easily factor that fee into the cost of
producing my product.

If we don't make some of these much needed reforms, I'm afraid that we'll choke
our economy into stagnation and turn into the buger flippers for the whole world
while we watch China, India, and Southeast Asia dominate the world economy.

[ Reply to This | # ]

Painful examples of patent abuse
Authored by: DaveJakeman on Thursday, June 09 2005 @ 05:55 AM EDT
A guy invents a way of significantly improving the efficiency of the internal
combustion engine. His eyes light up with $$$'s. He tries to patent the idea
and get it into production.

After filing his patent, or possibly even before, he's approached by a
representative of the oil cartel. He is made a very attractive offer. There's
his $$$'s, right there. Even if the inventor is feeling altruistic, he can be
"leaned on" with great weight to do it their way. The patent changes
hands and the inventor signs a non-disclosure agreement. The patent sits
quietly alongside hundreds of others, unused. Nobody can try that one again.
The status quo is preserved and you, the consumer, pay for it every time you
fill your tank. Profits keep rolling in and slowly the planet gets warmer.

Allegedly, discoveries have been made that would totally revolutionise
transportation. Discoveries that very definitely are of no interest to the oil
cartel. And so they don't happen. Nicola Tesla ripped the engine out of a car
and replaced it with an electric motor. He invented some wacky power souce that
would make it do 90 mph and was absurdly cheap and efficient.

Here's the story:

- - - -

The Black Box

Himself an Austrian military man and a trained aviator, Mr. Savo was extremely
open about certain long-cherished incidents in which his uncle's genius was
consistently made manifest. Mr. Savo reported that in 1931, he participated in
an experiment involving aetheric power. Unexpectedly, almost inappropriately, he
was asked to accompany his uncle on a long train ride to Buffalo. A few times in
this journey, Mr. Savo asked the nature of their journey. Dr. Tesla remained
unwilling to disclose any information, speaking rather directly to this issue.
Taken into a small garage, Dr. Tesla walked directly to a Pierce Arrow, opened
the hood and began making a few adjustments. In place of the engine, there was
an AC motor. This measured a little more than 3 feet long, and a little more
than 2 feet in diameter. From it trailed two very thick cables, which connected
with the dashboard. In addition, there was an ordinary 12-volt storage battery.
The motor was rated at 80 horsepower. Maximum rotor speed was stated to be 30
turns per second. A 6-foot antenna rod was fitted into the rear section of the
car.

Dr. Tesla stepped into the passenger side and began making adjustments on a
"power receiver" which had been built directly into the dashboard. The
receiver, no larger than a short-wave radio of the day, used 12 special tubes,
which Dr. Tesla brought with him in a box-like case. Mr. Savo told Mr. Ahler
that Dr. Tesla built the receiver in his hotel room, a device 2 feet in length,
nearly 1 foot wide, a 1/2 foot high. These curiously constructed tubes having
been properly installed in their sockets, Dr. Tesla pushed in 2 contact rods and
informed Mr. Savo that power was now available to drive. Several additional
meters read values, which Dr. Tesla would not explain. No sound was heard. Dr.
Tesla handed Mr. Savo the ignition key and told him to start the engine, which
he promptly did. Yet hearing nothing, the accelerator was applied, and the car
instantly moved. Tesla's nephew drove this vehicle without other fuel for an
undetermined long interval. Mr. Savo drove a distance of 50 miles through the
city and out to the surrounding countryside. The car was tested to speeds of 90
mph, with the speedometer rated to 120.

After a time, and with increasing distance from the city itself, Dr. Tesla felt
free enough to speak. Having now become sufficiently impressed with the
performance of both his device and the automobile. Dr. Tesla informed his nephew
that the device could not only supply the needs of the car forever, but could
also supply the needs of a household "with power to spare". When
originally asked how the device worked, Tesla was initially adamant and refused
to speak. Many who have read this "apocryphal account" have stated it
to be the result of an "energy broadcast". This misinterpretation has
simply caused further confusions concerning this stage of Tesla's work. He had
very obviously succeeded in performing, with this small and compact device, what
he had learned in Colorado and Shoreham.

As soon as they were on the country roads, clear of the more congested areas,
Tesla began to lecture on the subject. Of the motive source he referred to
"a mysterious radiation, which comes out of the aether". The small
device very obviously and effectively appropriated this energy. Tesla also spoke
very glowingly of this providence, saying of the energy itself that "it is
available in limitless quantities". Dr. Tesla stated that although "he
did not know where it came from, mankind should be very grateful for its
presence". The two remained in Buffalo for 8 days, rigorously testing the
car in the city and countryside. Dr. Tesla also told Mr. Savo that the device
would soon be used to drive boats, planes, trains, and other automobiles. Once,
just before leaving the city limits, they stopped at a streetlight and a
bystander joyfully commented concerning their lack of exhaust fumes. Mr. Savo
spoke up whimsically, saying that they had "no engine". They left
Buffalo and traveled to a predetermined location, which Dr. Tesla knew, an old
farmhouse barn some 20 miles from Buffalo. Dr. Tesla and Mr. Savo left the car
in this barn, took the 12 tubes and the ignition key, and departed.

Later on, Mr. Savo heard a rumor that a secretary had spoken candidly about both
the receiver and the test run, being promptly fired for the security breach.
About a month after the incident, Mr. Savo received a call from a man who
identified himself as Lee De Forest, who asked how he enjoyed the car. Mr. Savo
expressed his joy over the mysterious affair, and Mr. DeForest declared Tesla
the greatest living scientist in the world. Later, Mr. Savo asked his uncle
whether or not the power receiver was being used in other applications. He was
informed that Dr. Tesla had been negotiating with a major shipbuilding company
to build a boat with a similarly outfitted engine. Asked additional questions,
Dr. Tesla became annoyed. Highly concerned and personally strained over the
security of this design, it seems obvious that Tesla was performing these tests
in a desperate degree of secrecy for good reasons. Tesla had already been the
victim of several manipulations, deadly actions entirely sourced in a single
financial house. For this reason, secrecy and care had become his only recent
excess.

- - - -

From the above, it is apparent there was no patent taken out on Tesla's
invention. Tesla clearly had the intention that mankind should benefit from it,
as mankind did from some of his other inventions, like the induction motor and
AC power distribution. Tesla was familiar with the patent system, having taken
out many patents before. So presumably he felt that taking out a patent on
this, whatever it was, would somehow prevent it from being adopted. It wasn't
necessarily his personal gain he was most concerned about.

To a very large degree, the suppression of technical innovation and discovery is
made possible by the patent and legal systems, abuse thereof. This is among the
worst afflictions the planet suffers.

But let's not get too deep into conspiracy theory. I just hope there are people
in the US House of Representatives that will listen to Dan Ravicher and aren't
being paid or pressured into doing otherwise.

---
Should one hear an accusation, first look to see how it might be levelled at the
accuser.

[ Reply to This | # ]

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