decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
3 Initiatives to Improve the Patent Mess Announced - Updated
Tuesday, January 10 2006 @ 09:57 AM EST

As you can see in News Picks, there is big patent news today. For a long time, we've been complaining about the patent system, particularly as it affects FOSS. It turns out, someone listened. The New York Times' John Markoff has the story, as does Martin LaMonica. Here's Andy Updegrove's take and ComputerWorld.

Here's a USPTO headline I'll bet you never expected to see: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY TO EXPAND PATENT EXAMINER ACCESS TO SOFTWARE CODE . They want to open up their system to the FOSS community, so it can improve. IBM helped them to feel that way. Here's the IBM press release.

IBM, OSDL, the USPTO, Red Hat, Novell, New York Law School, Sourceforge, among others, have decided to do something about the software patent mess, particularly as it impacts on Linux and the FOSS community. They are asking for your input. There is a role you can play in the three initiatives being announced, if you wish to.

I gather there are four goals:

1. make sure only high quality patents are granted
2. get the FOSS community to help the USPTO to find prior art
3. create a climate where Linux and other FOSS software can flourish
4. establish a quality indexing system

I know from your comments that some of you feel that the only solution is to get rid of software patents altogether, and if you can accomplish that, feel free. But others of you have expressed the thought that high quality patents are legitimate, for ideas that are truly innovative and represent real scientific progress.

Think what it means that the USPTO is participating and asking for your help. Think what it means for you and the FOSS community, if you have an innovative idea but can't afford to patent it that one of the projects is a system for storing source code in an electronically searchable format, satisfying legal requirements to qualify as prior art. Think about the difference it might have made to be able to speak and provide input in the recent Microsoft FAT patent reexamination procedure. PubPat's Dan Ravicher:

"Microsoft has won a debate where they were the only party allowed to speak, in that the patent re-examination process bars the public from rebutting arguments made by Microsoft," he told CNET News.com. "We still believe these patents are invalid and that a process that gave the public equal time to present its positions would result in them being found as such."

Read on for details on the three initiatives.

Here are some details from the IBM press release:

IBM also announced an initiative it is undertaking with the USPTO, Open Source Development Labs (OSDL), members of the open source software community and academia that is focused on improving U.S. patent quality. The unprecedented partnership between these parties to improve patent quality will help accelerate innovation in the United States.

The initiative has three elements:

-- Open Patent Review - a program that seeks to establish an open, collaborative community review within the patenting process to improve the quality of patent examination. This program will allow anyone who visits the USPTO web site to submit search criteria and subscribe to receive regularly scheduled emails with links to newly published patent applications in requested areas. Established in conjunction with the USPTO, this program will encourage communities to review pending patent applications and to provide feedback to the patent office on existing prior art that may not have been discovered by the applicant or examiner. Professor Beth Noveck of New York Law School will lead a series of workshops on the subject. For more information, visit Professor Noveck's project website at http://dotank.nyls.edu/communitypatent.

-- Open Source Software as Prior Art - a project that will establish open source software - with its millions of lines of publicly available computer source code contributed by thousands of programmers - as potential prior art against patent applications. OSDL, IBM, Novell, Red Hat and VA Software's SourceForge.net will develop a system that stores source code in an electronically searchable format, satisfying legal requirements to qualify as prior art. As a result, both patent examiners and the public will be able to use open source software to help ensure that patents are issued only for actual software inventions. Information for this project is available on the OSDL web site at: at: http://developer.osdl.org/dev/priorart/.

-- Patent Quality Index - an initiative that will create a unified, numeric index to assess the quality of patents and patent applications. The effort will be directed by Professor R. Polk Wagner of the University of Pennsylvania with support from IBM and others and will be an open, public resource for the patent system. The index will be constructed with extensive community input, backed by statistical research and will become a dynamic, evolving tool with broad applicability for inventors, participants in the marketplace and the USPTO. Information about the Patent Quality Index is available at: http://www.patentqualityindex.org.

Here's what OSDL tells us about the Open Source Software as Prior Art initiative:

OSDL supports the USPTO's drive to improve the quality of software patents. The goal is to reduce the number of poor quality patents that issue by increasing accessibility to Open Source Software code and documentation that can be used as prior art during the patent examination process. For the Open Source community and many others, this means a reduction in the number of software patents that can be used to threaten software developers and users, and a resulting increase in innovation.

Three specific patent quality initiatives have been identified as a result of collaboration among the USPTO, IBM, OSDL and others in the Open Source community and software industry. Those patent quality initiatives are:

1. Open Source Software as Prior Art (the subject of this website)
2. Community patent review
3. Patent quality index

This website and related wiki and mailing lists provide a central location for information and exchanges of ideas on the Open Source Software as Prior Art Initiative. For more information, see the project overview. We encourage members of the Open Source Software community as well as proprietary software community to get involved.

The results of the Open Source Software as Prior Art Initiative will be made freely available to all.

Here's where you go to subscribe to priorart-discuss, OSS and USPTO prior art discussions. OSDL says, "The priorart discussion list is the primary place to discuss the ideas and future of the project." Or, more accurately, it will be.

The USPTO announcement says that there will be a public meeting at their headquarters in Virginia on February 16. Details will be provided later this month on their website. Here's more from their release:

Last month, USPTO representatives met with members of the open source software community, which provided an opportunity for members to discuss with the USPTO issues related to software patent quality. The meeting focused on getting the best prior art references to the examiner during the initial examination process.

The group agreed to improve prior art resources available to the USPTO; to develop a system to alert the public when USPTO publishes certain software-related applications so that interested parties can submit related prior art in accordance with relevant rules and law; and, to explore developing additional criteria for measuring the quality of software patents.

“For years now, we have been hearing concerns from the software community about the patent system,” Under Secretary of Commerce for Intellectual Property Jon Dudas commented. “It is important that those in the open source community are joining USPTO to provide resources that are key to examining software-related applications.”

If you have questions you wish to ask, leave them as a comment, and I'll try to get answers for you.

UPDATE: Here's some detail on the index initiative. It helped me to understand what they intend a little better, from Computer Business Review:

IBM is also working with Red Hat, Novell, and SourceForge to develop a searchable mark-up system.

According to Bob Sutor, an IBM vice president in charge of standards and intellectual property initiatives, it could leverage approaches similar to federated query, or information integration approaches, that blend the search of structured and unstructured data.

IBM is also looking to develop an index that would rate the technical quality of a patent application, using basic criteria such as how clearly it is written or how well it references prior art. Here, the systems would have to apply subjective criteria that could be open for multiple interpretations.

"The patent system already has technology classification scheme. They want to build an index that understands this technology area and uses normalized view as to the quality of patent," said Sutor.

Sutor explained that the system would not be meant to evaluate the economic potential of patent ideas, just whether the patent applications are intelligible enough to provide a clue as to whether the application merits serious review.

And Red Herring gets the overview:

The USPTO said it plans to examine and perhaps adopt a system of openness similar to that used by the open-source community to improve the standard of patent examination and approval. That’s a dramatic change from the relatively closed system that exists today. ...

The USPTO would like to have the best available prior art so it can make better decisions on patents based on more up-to-date resources.

The end result, if this works? Fewer stupid patent lawsuits, for one thing. CNN/Money:

The aim is to ensure that examiners don't inadvertently issue patents for software code that has already been developed, [IBM's Assistant General Counsel David] Kappos said in an interview. ...

"We obviously can't make all of the world's proprietary code publicly available," Kappos said. "What we can do is make that code that is already open-source format publicly searchable."

The process should lead to fewer copyright disputes and lawsuits, Kappos added.


  


3 Initiatives to Improve the Patent Mess Announced - Updated | 314 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corections here please...
Authored by: emperor on Tuesday, January 10 2006 @ 10:08 AM EST
If any...

roman

---
He who fights with monsters might take care lest he thereby become a monster.
And if you gaze for long into an abyss, the abyss gazes also into you. -
Nietzsche

[ Reply to This | # ]

OT here, please
Authored by: overshoot on Tuesday, January 10 2006 @ 10:09 AM EST
Instructions at bottom, clicky links, SOP.

[ Reply to This | # ]

Coingratulations PJ !!!
Authored by: Anonymous on Tuesday, January 10 2006 @ 10:23 AM EST
I think you have had a large part in bringing this about. It may not be as good
as getting rid of sw patents altogether, but it sounds lilke it will probably
get rid of most of them. Keep up the good work.

[ Reply to This | # ]

3 Initiatives to Improve the Patent Mess Announced
Authored by: Anonymous on Tuesday, January 10 2006 @ 10:24 AM EST
this is great news - maybe finally some kind of paten
sanity

[ Reply to This | # ]

3 Initiatives to Improve the Patent Mess Announced
Authored by: Wol on Tuesday, January 10 2006 @ 10:53 AM EST
While it would probably need the help of Congress, a couple of other reforms
might help, too ...

1) Plain English. If the application is not easily comprehensible to "one
skilled in the art" it is prima facie invalid.

2) Scrap the presumption of validity. If the patent holder places a prospective
defendent on notice of alleged patent violation, the patent has to be thoroughly
examined. You should not be able to sue without the patent undergoing such an
examination AFTER the prospective defendent has been notified.

Coupled with this, a plaintiff should be required to possess a *working* example
of the patent. It doesn't have to be a model, it could be the real thing, but it
can't just be the idea. If this isn't present the patent fails immediately.

This allows a company to file a patent application while they're working on
something, but they can't sue until (a) they have a "working
invention" and (b) they've updated the application to cover what they've
done (and by implication, not cover what they haven't done).

3) There has to be a demonstrable level of investment in R&D. You should not
be able to patent serendipitous discoveries. "Can you spend a couple of
days working out how to do X" would be sufficient, but "hey, I was
working on this when I found that" would not.

4) Several near-simultaneous applications for the same thing should trigger a
presumption of obviousness (and hence non-patentability). In particular, a
documented trade secret should trump a patent. If no attempt has been made at
keeping a process a trade secret, then it can be classed as prior art. If
attempts have been made at keeping a process a trade secret, this needs to be
legally documented and the documentation trumps a patent.

Cheers,
Wol

[ Reply to This | # ]

Excuse a seasoned cynic, but ..
Authored by: Anonymous on Tuesday, January 10 2006 @ 11:13 AM EST
"Come and do our job for us, unpaid" - USPTO"

Who is behind this within the legal establishment?
Someone who means well but will get stamped on? The PR
department? Or someone for real.

[ Reply to This | # ]

3 Initiatives to Improve the Patent Mess Announced
Authored by: jseigh on Tuesday, January 10 2006 @ 11:17 AM EST
Patents are hard to read and the claims can be vague enough to apply to almost anything, at least as far as patent trolls are concerned. Evaluating the patents won't help here as the trolls will sue anyway and fighting them takes money. Knowing the patents are bogus won't help if you don't have lots of money.

On the other hand, if you are a large corporation which files lots of patents every year for the prestige of having most patents granted, knowing which patents are the most valuable and should be kept in your patent porfolio helps keep expenses down. Those licensing fees add up. So the large corporation in question lets most of those patents lapse after a while. Letting the wrong patent lapse can be a oops, e.g. patent 4,809,168, an early "RCU" patent.

But getting down to the details. Patents are notoriously hard to read, perhaps deliberately so. There are citation databases of technical papers, which are supposed to be easier to read, and those are hard enough to search. You mostly go by the citations in each paper and follow those. Sort of a form of social networking or weighting search results by number of links (citations) to a paper. That helps except for two things. Academics and researchers are evaluated by number of papers published and number of citations so there is a little bit of overuse of citations. The other is there appear to be cliques, groups of researchers who either don't know or don't acknowledge other groups. You won't find many cross links this way.

What does this have to do with patents? The nearest thing right now are the references cited and cited by links in the patent database. They're a good way of finding related patents but they're only as good as the prior art research that was done. One of the things one of these patent initiatives should do is fill in the missing links, especially prior art.

And speaking of prior art, they need to look at other sources besides open source projects, like usenet. I use usenet a lot, sort of like a poor man's disclosure bulletin. In as least one case I've preserved my right to implement something I came up with when someone else reinvented the idea, published it also, and could have potentially tried to patent it.

[ Reply to This | # ]

Easy Solution: Treat IP like real property
Authored by: ansible on Tuesday, January 10 2006 @ 11:20 AM EST

I've got an easy solution to IP issues. Treat intellectual property just like real property.

One of the big differences between IP and real estate is property taxes. Every year or two, someone comes by to assess the value of your property, and you pay a tax based on that.

We could do the same with IP. The value of some patent is based on the money you make from it. The value of the patent would also go up a lot if you used it as the basis of a lawsuit too.

This would mostly eliminate patent trolls, which seem untouchable now because they produce no products themselves. The ones remaining would turn themselves into real estate moguls, but be under the same pressure as property developers now. They would need to either earn money off a patent, or else sell it or give it up (put it in the public commons).

People wouldn't want to file patents for really obvious stuff, because then the property value would be really high, and they would have to get licenses from the entire world to pay for the taxes. That would be a difficult proposition.

Of course, there will be many issues with how IP value is assessed, but again, we should be able to use some of the solutions used in evaluating physical real estate (selling price of neighboring homes, etc.).

[ Reply to This | # ]

Software Patents too long!
Authored by: Anonymous on Tuesday, January 10 2006 @ 11:26 AM EST
I think Software Patents should be limited to 3 to 5 years, not 10 like most
other patent areas.

[ Reply to This | # ]

3 Initiatives to Improve the Patent Mess Announced
Authored by: Anonymous on Tuesday, January 10 2006 @ 11:26 AM EST
So the USPTO agreed to let others do the patent reviews it's paid to do? That's
very generous of it!

You got to love the IP rights society we're building:
1. it's supposed to benefit mythical backyard geniuses (how many of them is
there, and who ever proved IP rights would change their number)
2. various classes of parasites are paid to make the system work
3. its actual costs (monetary and now associated work) are beared by everyone
else

At least when middle-age Church taxed everything for its own needs it was honest
about it.

[ Reply to This | # ]

IBM press release at IBM
Authored by: jto on Tuesday, January 10 2006 @ 11:29 AM EST
The official press release is at IBM press release.

---
Regards, JTO

[ Reply to This | # ]

I can't honestly imaging this making a difference
Authored by: Anonymous on Tuesday, January 10 2006 @ 11:29 AM EST
Yes, in theory this should fix a large part of the problem. But think of the
difficulty of an examiner digging through a pile of source code with mostly
undocumented algorithms. Sure, the patent application they are reviewing may be
covered by prior art somewhere in that pile, but are they going to be creative
enough and spend enough time to find it? Unless the reviewers start spending
more time on prior art searches I don't think it will happen.

On the other hand, if this group is planning to spoon-feed prior art information
to the patent examiners for the specific patents they are reviewing it could
help, but isn't that just doing their job for them?

[ Reply to This | # ]

Open Source could benefit in return...
Authored by: Anonymous on Tuesday, January 10 2006 @ 11:52 AM EST
I'm intrigued by this whole new mess. I'm *really* intrigued by the "Open
Source as Prior Art" initiative. Think about it-- you now have a new option
to steel yourself against patent infringement lawsuits. You can either file a
new patent like before, or you can open-source your software. If you open-source
it and register it with the prior art initiative, that's effectively sound proof
against infringement lawsuits for any patents issued after your code.

Granted, it doesn't carry all the benefits owning an actual patent would carry,
but it does help guarantee you won't get dragged into court. It tips the scales
just a little bit more in OSS's favor.

As to why the OSS community should take over for the USPTO without getting paid,
that's simple: It's within everyone's interest to reduce the number of frivolous
patents and keep innovation alive and moving right along. Not only that, but
these new initiatives promise to use technology (open-source, no less) to really
help the process speed along. OSS also has always had the strength-in-numbers
thing going; each developer really only has to do a little to make a big impact
on the patent situation.

It just makes good sense.

[ Reply to This | # ]

Patent Assessment By The Numbers
Authored by: Carlo Graziani on Tuesday, January 10 2006 @ 11:52 AM EST
I went and looked over the presentation < /a> by Professor Wagner on the PQI. My preliminary impression (uncontaminated by any actual legal knowledge worthy of the name) is that it would be unwise to bet heavily on the PQI as a tool to improve patent assessment.

My general concern is this: A process for assessing the quality of technical/scientific claims already exists, and works well in a different but comparable context --- peer review of grant proposals.

When scientists want funding for a project, they generally respond to an RFP by a science funding agency such as NSF, NIH, NASA, DOE, etc. by submitting a proposal that must conform to formal requirements that are as exacting as any imposed by USPTO. The funding agency then convenes a panel of scientists with expertise overlapping the subject matter covered by the RFP. The panel members reads the proposals and grade each one -- subjectively -- according to criteria spelled out explicitly by the RFP. At a meeting of the panel, each proposal is discussed, and often vigorously debated. In the end, each is given a consensus grade, the proposals are ranked, and funding is distributed in priority order according to the available budget.

Having participated in both the submission and evaluation process, my opinion is that any attempt to assign value to proposals by an algorithmic approach based on quantitative metrics similar to the ones that the PQI proposes to adopt -- publication and citation rates of investigators, number and size of figures in proposals, number of references in proposal etc. -- would be utterly inappropriate, even for the purpose of supplying a first-cut ranking to assist the panelist in the real assessment. The kind of human scientific judgement required for a high-quality proposal evaluation -- and in my experience most of them are extremely high quality -- is simply not amenable to coding up as some kind of quantitative N-parameter constrained optimization process.

[For another example of a spectacularly well-handled technical review of proposals submitted in response to an RFP, see the NIST's Advanced Encryption Standard Selection Process , and read what Bruce Schneier, a proposer whose selection was not the finalist, has to say about how the process was handled .]

A patent exam is a technical evaluation that has many requirements in common with a proposal review. A quantitative metric based on quantitative inputs strikes me as being just as inappropriate for patent assessment as it would be for proposal evaluation. The fact that USPTO examiners have been behaving like monkeys trained only in high-speed rubber-stamp operation does not mean that the USPTO operation would be improved by supplementing it with an SAT-type exam. Unfortunately, there really isn't any substitute for real experts spending quality time constructing defensible technical judgements.

[ Reply to This | # ]

One to start with
Authored by: Anonymous on Tuesday, January 10 2006 @ 12:03 PM EST
I nominate this as daft patent application of 2005.

Alan(UK)

[ Reply to This | # ]

RIAA patent?
Authored by: huey on Tuesday, January 10 2006 @ 12:13 PM EST
I found this patent on freepatentsonline.com and wondered if the RIAA was behind it. Sorry kids, pay up or we'll sue you for violating our patent!

[ Reply to This | # ]

3 Initiatives to Improve the Patent Mess Announced
Authored by: Anonymous on Tuesday, January 10 2006 @ 12:33 PM EST
A patent is supposed to consist of an idea, and your best
implementation of the idea. You cannot patent 'mousetrap';
but you might be able to patent 'better mousetrap'; you
had better show what distinguishes it from all mousetraps
that have gone before. Someone wanting a mousetrap could
either use the prior art you point out, with no payment to
you; or could make an agreement with you and use your
'better mousetrap'.
A patent also needs a commercial owner, and an inventor.
If the supposed 'better mousetrap' will do the job you
want done, you go see the commercial owner about licensing
it. If it won't do the job, you go see the inventor and
ask him (or her) to invent something which will.
The patent ... or patent application ... is presumably
challengable on various grounds; among them
1) Not novel. Someone has made a mousetrap this way
before.
2) Doesn't work. The supposed mousetrap does not catch
mice.
3) Not done. The supposed mousetrap has not been made.
and if any challenge works, just once, then the patent is
scrapped; and all the money the intending commercial owner
has spent, goes to waste.
You're not really supposed to go to court; a patent is
really there so that you can find and use either the
invention or the inventor.
If these databases make it easier for the USPTO to throw
out spurious applications; be they for hardware, software,
or business processes; that's all to the good.

[ Reply to This | # ]

The error of this idea
Authored by: dyfet on Tuesday, January 10 2006 @ 12:48 PM EST
First, what I suspect that some would consider "high quality" ideas, and what the Patent Office would are still a universe apart. Second, I am not sure that it is possible to compromise on this issue. That would be to me like saying "we will take away the bill of rights, but give you back ammendents 1 and 7" or "which of your freedoms will you bargain for"? Sorry, but as an American I signed up for ALL of them. And the same case is here.

[ Reply to This | # ]

We need to do this sort of thing to get rid of software patents
Authored by: PolR on Tuesday, January 10 2006 @ 01:55 PM EST
I still think software patents are bad, but...

There are people in this world that believe software patents are good and that
it is the system that need to be fixed. After a few initiatives like this, we
will be able to say that the system has been fixed and it still doesn't work.

[ Reply to This | # ]

Can we find enough volunteers?
Authored by: PolR on Tuesday, January 10 2006 @ 01:59 PM EST
One flaw I see on this kind of initiatives is the work capacity of volunteers.
Patent submitter send thousand of request every year. How many volunteers does
it take to keep up? I guess those with the required qualifications would rather
be hacking.

The one thing this may help is to shoot down the most egregious patents, the one
people feel emotional about. It will not help curb the mass of new
applications.

[ Reply to This | # ]

  • a crazy idea ... - Authored by: Anonymous on Wednesday, January 11 2006 @ 05:29 PM EST
Old IBM/DEC code included?
Authored by: Anonymous on Tuesday, January 10 2006 @ 03:12 PM EST
There's a bunch of old IBM code, including (IIRC) OS/360 and its precursors
which were distributed in source-code form. Also, there's a bunch of DEC code
(including the various DECUS archives) and of course the various sources usenet
groups. Do these count as "electronically searchable formats"?

I'd be curious to see what else the denizens of alt.folklore.computing can come
up with

[ Reply to This | # ]

This is a terrible mistake
Authored by: Anonymous on Tuesday, January 10 2006 @ 03:19 PM EST

So people are going to donate time to the USPTO to strengthen the patent system, by making it better? What a terrible idea.

Making the software-patent system better will reduce the pressure from business to scrap it. When most software patents are seen as illegitimate - as now - there is a chance to get the whole sorry mess tossed out. But after we have done all this unpaid work to give software patents some validity, the system will be seen as "working" and it will become impossible to ditch it.

The worst thing of all is that FOSS people who could have helped in the fight against software patents have been conned into strengthening the system. That is truly sad.

[ Reply to This | # ]

3 Initiatives to Improve the Patent Mess Announced
Authored by: luvr on Tuesday, January 10 2006 @ 03:31 PM EST
I'm awfully tired today, and I must be hallucinating... I thought I had just read that "USPTO PARTNERS WITH OPEN SOURCE COMMUNITY TO EXPAND PATENT EXAMINER ACCESS TO SOFTWARE CODE"???

High time to get some sleep! ;-)

[ Reply to This | # ]

Everyone joining in - CIO Insight and BusinessWeek too.
Authored by: ankylosaurus on Tuesday, January 10 2006 @ 04:35 PM EST
The email sent to me and others who subscribe said:


The Patent Epidemic

From Business Week (Topic: Patents), Jan. 9:
The order was potentially a big one for KSR International Co. General Motors Corp. (GM) wanted the Canadian auto parts maker to supply gas pedals for its 2003 Chevrolet and GMC light trucks and sport-utility vehicles. But not just any pedals. GM wanted adjustable ones that could move back and forth to accommodate drivers of different heights. And it wanted the pedals to send an electronic signal, rather than using a mechanical cable, to change the engine speed when a driver stepped on or off the accelerator.

For more on patents, see:

"Has the Enemy of Patent Trolls Become One?" (CIO Insight, December 2005)

"Patent (Reform) Pending" (CIO Insight, October 2005)



---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Reduce the term Guv'nor
Authored by: Anonymous on Tuesday, January 10 2006 @ 08:28 PM EST
One of the biggest problems with patents is that such a long monopoly term is
granted, way beyond what is reasonable for the IT industry, where a monopoly for
5 years would certainly gives huge returns, but a monopoly for 25 years is
ridiculous. I mean look at how long the entire industry is, and try to qualify
that 25 or 50 year patents lives make sense.

If software patents were clearly defined, easy to search (to show prior art
during the grant period) and only 5 years long, then reasonable monopolies are
being granted for genuinely unique "innovations" without crippling the
industry.

Pia Waugh

[ Reply to This | # ]

Yes, it's better to be on the inside
Authored by: Anonymous on Wednesday, January 11 2006 @ 02:44 AM EST
Particularly when dealing with mobsters like the USPTO. It's an offer we can't
refuse, in fact.

[ Reply to This | # ]

Window period
Authored by: Anonymous on Wednesday, January 11 2006 @ 03:30 AM EST
I am not from the US, but I believe that reviously, the US law was that there
should not be any publication before making the application for the patent.
Currently, you can publish and apply for the patent within a year.

If the randomfossdeveloper publishes his software under a FLOSS license, and the
smartguy decides to patent something in randomfossdeveloper's code, how feasible
is it for randomfossdeveloper to defend his case?

[ Reply to This | # ]

3 Initiatives to Improve the Patent Mess Announced - Updated
Authored by: Anonymous on Wednesday, January 11 2006 @ 06:23 AM EST
I think pretty much most people here are mistaken.

With this kind of initiative control of 'OSS' software moves away from garage
programmers and into the hand of large corporations.

It won't be long before you need a government license in order to be 'allowed'
to develop software.

This will be done under the guise of preventing software and source code
(patented, OSS or prop) having to be managed to make sure it stays out of the
hands of terrorists and paedo's.


The game is rigged


[ Reply to This | # ]

This is a very good thing
Authored by: Anonymous on Wednesday, January 11 2006 @ 07:32 AM EST
Now that the "free money" has been cut off a lot of the problems will
disappear. In other words, the quality of the patents will go up.

No more price gouging; no more blackmail.

The people who like to litigate for a living - the patent pools - have to go
find another line of work now. This is a good thing, because these patent pools
tend to not really contribute anything valuable or worthwhile to
state-of-the-art anyway.

Proprietary R&D is risky, expensive, and it requires some fairly hefty
organizational infrastructure to really create the type of environment where
anything worthwhile can take place. Many patent pools will be unable to provide
such environments.

There doesn't necessarily have to be anything wrong with encouraging proprietary
R&D - many good things can come from proprietary R&D, although it can
also have a dark side (e.g. GMOs, pharmaceuticals). There is also the issue of
private companies giving research money to universities while retaining the
rights to the results of that university research. There is certainly potential
for abuse in these types of arrangements.

These three new projects will make open-source R&D a more welcoming place to
be, perhaps affording smaller organizations a chance at meaningful innovation,
enhanced by the existence of a large, excellent existing FOSS code base.

It's really the innovation that counts; patents are only meant to encourage the
process. Handing out patents as if they were free money not only takes the focus
away from innovation and places the focus on taking advantage of the free money,
but also creates an environment where the innovators are feeling threatened.

We want to encourage innovation. The people who were taking advantage of the
USPTO should have realized (perhaps they did) that sooner or later this source
of free money was going to go dry up. We could either have descended into some
type of frenzy in order to take advantage of free money, or attempt to eliminate
this source of "free money" and encourage innovation. We have strong
evidence that suggests that sources of free money dry up eventually. We wouldn't
have been able to gather that evidence without the results of innovation
throughout the millenia.

[ Reply to This | # ]

3 Initiatives to Improve the Patent Mess Announced - Updated
Authored by: Anonymous on Wednesday, January 11 2006 @ 09:19 AM EST
What exactly does a 'patent' do for software ?
Take 'mp3', for example. I can see that there is
utility ... maybe ... in representing a song in a smaller
number of bits than the obvious way, and still being able
to play it back with acceptable quality to the listener.
You can use it to make an iPod-device which is
'better' (in the sense of being able to store more songs
for a given cost in silicon) than previous ways.
But for what do you need a patent licence (where you would
not, if you just stored raw data or used Ogg Vorbis)?
Manufacturing and marketing iPods ?
Compressing songs into 'mp3' format ?
Distributing source code, or object code, which could (if
run on a machine, or run with pencil and paper by hand)
compress, or expand, a song ?
Distributing 'mp3' formatted itens across a network (which
will cost you less than distributing uncompressed,
presumably, so arguably that has utility too) ?

[ Reply to This | # ]

Microsoft FAT patent upheld
Authored by: Anonymous on Wednesday, January 11 2006 @ 09:47 AM EST
All this and then I found out they are validating the "patent" M$
wants on FAT. Just when you thought it was getting better, then it just gets
worse.

Apparently they want everyone making anything that uses FAT to pony up 25 cents
per unit shipped.

It's going to be a long hard fight to get this patent system fixed.

[ Reply to This | # ]

a huge win for open source
Authored by: Anonymous on Wednesday, January 11 2006 @ 11:20 AM EST
This is actually a huge win for open source.

It makes it cheap and easy to create code that is applicable as prior art.
While there are still huge costs involved in fighting a patent, this allows
fighting them at the early stages when it is much less expensive. That makes
this fight possible for IBM, Novell, Red Hat, and any others that are supporting
open source. It also takes advantage of the many eyeballs power of open source
- some people can set up automatic scans of upcoming patents for possible
concerns and highlight applications that seem problematic, others can search for
and collect evidence of prior art to submit against the highlit applications,
and all of this work can be support the open source companies who fund the
challenge process work.

As time goes on, an ever increasing amount of code will exist in the published
prior art category - this makes it harder for a company to find a process that
is truly novel and thus eligible for patenting.

But, that is not the biggest benefit.

Proprietary code written for commercial companies who wish to keep their code
secret, will not be part of this process. Keeping code proprietary will be a
gamble for the company. Unless they successfully acquire a patent themselves,
their secret code is not as useful for establishing prior art against anyone
else who acquires a patent that covers their accomplishments, so they will have
to fight the patent the hard expensive way. That gamble and potential cost
could be a huge incentive to encourage a company that does not think they have
the right stuff to go after a patent to instead open source their code to
protect it from patent jumping.

While I would rather that software patents were simply not ever issued and so
could not interfere with open source; this measure which reduces the cost and
interference with open source while retaining the the high cost and interference
for proprietary source companies might actually provide a greater benefit to
open source in the long run.

John Macdonald

[ Reply to This | # ]

Question...
Authored by: Bas Burger on Wednesday, January 11 2006 @ 12:54 PM EST
Amongst other things I am an open source developer myself.
The application is called "Sitebar Client", which is a Firefox
extension that works as a specialized sidebar browser for the "Sitebar
Server" which is a bookmark server and storage system. Probably more
applications will be written by me during my lifetime, depending on the law
situation of course I will or will not publish them.

As you may know I enjoy reading Groklaw but I am not really into law stuff
myself, especially since I am Dutch it is hard for me even to see through
procedural parts of American law. Probably since I am Dutch my work wont have
that much impact when it comes to the USPTO policies. I do want to help though
and I think the easiest way for both parties (the group currently reforming the
American patent system and I) is to somehow register my application with a short
description of what it does and how it does it.


My main question is... Is there a way to have my application registered for
these purposes?

Bas.


---
DIRECTUS ELATUS PERTINAX

[ Reply to This | # ]

  • Question... - Authored by: Anonymous on Wednesday, January 11 2006 @ 03:59 PM EST
    • Question... - Authored by: John Hasler on Wednesday, January 11 2006 @ 06:04 PM EST
    • Question... - Authored by: Anonymous on Thursday, January 12 2006 @ 05:40 AM EST
    • Question... - Authored by: PJ on Friday, January 13 2006 @ 06:08 AM EST
Make the patentee pay a bounty to anyone who finds prior art
Authored by: Brendan Scott on Wednesday, January 11 2006 @ 05:52 PM EST
One of the problems is the number of invalid claims. There needs to be a
disincentive to filing invalid claims, as well as an incentive to ensure invalid
claims are weeded out.

My proposal is for patent applicants to be required to pay a bounty (say a
couple of thousand dollars) to any member of the public who finds prior art
which invalidates any claim in the patent.

Regards


Brendan

[ Reply to This | # ]

3 Initiatives to Improve the Patent Mess Announced - Updated
Authored by: Anonymous on Thursday, January 12 2006 @ 05:30 PM EST
But can you not say 'Here is my FLOSS. I have no clue what it does. Some people
think that it requires a licence to patent XXXXXXXX in order to use it in
country Y; if you agree, go get a licence from the holder of patent XXXXXXXX. If
you really want to, you can buy the product that the patent holder makes, and
then use my FLOSS anyway' ?

[ Reply to This | # ]

Legal Offices to be hit with Patent Cluebat
Authored by: Wesley_Parish on Friday, January 13 2006 @ 04:04 AM EST

I think I've said it before, but the USPTO wasn't paying any attention, so I'll say it again:

WordPerfect 5.1 already had Long Document Names implemented in a manner suspiciously like MS Win95's Long File Names - except that WordPerfect 5.1 was out and about and available to paying customers NOT EXCLUDING LEGAL OFFICES in 1990.

So to accept the usual Microsoft claim that their competitors have stolen their ideas, we also have to accept the idea that WordPerfect Corp. had a working time machine in 1990 - AND WE NEVER KNEW!!!

If the USPTO wishes to insult our intelligence - as they have just done so, they are perfectly welcome to. If they wish to insult the intelligence of the entire legal profession in the United States of America - which they have just done, completely grauitously, they are equally welcome to do so.

The difference being that enough lawyers feeling gratuitously insulted are likely to hand the USPTO's head back to it on a plate. And enough judges feeling their intelligence has been gratuitously insulted by the USPTO are likely to garnish that self-same head.

---
finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

[ Reply to This | # ]

IPR for Eternity - and Payments to Match
Authored by: Wesley_Parish on Friday, January 13 2006 @ 05:16 AM EST

Just a thought - Disney will continue to wrangle YET ANOTHER 75 YEARS etc, per occasion out of the US Congress and the US President and the rest of the Executive branch will continue to try extending that out to the rest of the world.

Let's give Disney ALL those 75 year increments in ONE LUMP SUM - all the way to the heat death of the universe. Now let's also charge for copyright renewal - only fair, since someone has to pay to enforce those copyrights.

I love compound interest! Let's compound the payments according to the length of time the copyright has been in force, per 75 year increment. 9 per cent increase on the previous level of payment spread over 75 years compounding on a nanosecond-by-nanosecond basis. And to be binding on all executives of the Disney Corp., etc, and their descendants and descendants' descendants until the heat death of the universe.

Let's give Disney, etc, what they asked for. Ever read "The Monkey's Paw"?

---
finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

[ Reply to This | # ]

3 Initiatives to Improve the Patent Mess Announced - Updated
Authored by: Anonymous on Saturday, January 14 2006 @ 04:13 AM EST
So what happens if Microsoft feel they are not being paid enough quarters for
FAT patent licences, and that it has something to do with SAMBA ?
Presumably they go to a judge in Redmond. But what do they say ?
Do they ask Joe SAMBA-developer to be made to pay some money ? Susie Novell
Linux distributor ? Dow Chemical Corporate User ? John Doe Home User ?
My understanding is that the remedy for patent infringement is in equity; i.e.
if the jury sides with Microsoft, then the judge will look at how much revenue
the losing party has made by selling infringing products (or products made by
infringing processes), and will decree that some fraction of that revenue shall
be given to the winning party. But IANAL, so I do not know, and certainly cannot
give advice.
So if Joe SAMBA, Susie Novell, Dow, and John Doe do not show up in court in
Redmond (and do not spend a red cent on legal representation), what happens ?
Also, what is the address for me to send my quarter to, if I think I might need
a licence to Microsoft's patent ?

[ Reply to This | # ]

One more initiative: how to develop better tactics
Authored by: Anonymous on Saturday, January 14 2006 @ 06:51 PM EST
The FOSS community arguably needs to develop better tactics to defend itself
against nuisance software patents.

Those tactics can probably only come from practical experience on a case-by-case
basis, and the recent USPTO action to confirm the Microsoft "FAT"
patent (5,579,517), after re-examination at the request of PPF, seems to offer
an example of what to do and what not to do.

First, it's necessary to 'know your enemy'. Public debate about patents in the
FOSS community doesn't usually show much knowledge of the specific enemy of the
case in hand.

For example, much of the public comment about the MS 5,579,517 case calls its
subject a patent on the "fat" file system -- but the patent appears to
be written to claim, not the fat-fs as such, but rather, ways of handling long
filenames in connection with an underlying fat-fs. (I don't have links by me to
hand right now, sorry.)

That would be much less than a patent on fat as such.

When I last looked at the claims, it did seem that the ways claimed in the
patent for handling the long filenames could be subgeneric, i.e. less than
exhaustive of all the possibilities. (Granted that a situation like that can
still mean that claims are wide enough to be a nuisance.)

So in this example it would probably be more useful to the FOSS community to
look carefully at what is actually left from the actual MS patent claims, to see
whether they leave unpatented, free outside the claims, any other ways of
handling the long filenames.

(This would be as well as searching for evidence that might raise the likelihood
that the confirmed patent claims would still be invalidated by prior art or any
other reason if it came to a court fight, with the opposing party taking a full
part there to provide full counterarguments, which was not possible in the
recent re-examination case.)

Success in this type of case arguably comes from a nuts-and-bolts bottom-up
approach. Inaccurate generalisations do not usually help.

This example case does also underline -- again -- the inadequacy of the US
patent re-examination procedure as used in the recent MS case -- mainly because
of the unequal treatment that it gives to the party wishing to oppose the
patent.

But however that may be, it's tactically important to note that a failed attempt
to get a nuisance patent invalidated is unhelpful to the community, because the
patent holder can always point to the result when the prior art arguments come
up again, and can argue that they have already been officially considered and
rejected -- and this kind of argument can be at least somewhat persuasive that
there is no need to review the existing decision.

It would arguably be better not to use US re-examination in the first place, if
there is an assessment that the patent holder could wriggle out of the
allegations of prior art when the other party is not there to answer -- because
stopped by the procedure from answering to nail the errors in the arguments of
the patent-holder.

It might also be recommendable for a potential re-examination requester, instead
of rushing in to raise proceedings that fail when there is no current and urgent
need actually to bring them at that point in time, instead to give wide
publicity first to the evidence and arguments against a nuisance patent, and to
encourage debate about it.

The resulting debate could bring facts to light, e.g. that strengthen the prior
art arguments.

New facts and evaluations can also shed light on the defendable scope of the
claims, and make it clearer what techniques actually lie free outside them --
maybe even indicating that invalidation proceedings are not necessary.

At least, wider discussion can make it a bit easier to weigh up the prospects of
success before weighing in with action.

[ Reply to This | # ]

3 Initiatives to Improve the Patent Mess Announced - Updated
Authored by: Hygrocybe on Sunday, January 15 2006 @ 02:58 AM EST
This is an excellent first step...but a first step only. It remains my
unshakeable opinion that software patents of any sort should be banned and that
all software patents issued so far be given a very short sunset period of about
1-2 years.

Issuing patents on software is the direct equivalent of:

1. In English, being able to patent "Once upon a time"; and

2 In Mathematics, being able to patent "1 + 2 = 3".

The ability to patent software is utter absurdity. Like both maths and english,
later software builds on software just as maths builds on axioms and english
builds on letters, words and phrases. The ability to build on earlier software
is its biggest advantage. All software patents do is inhibit research and
progress and nothing will ever shake me from this firm conviction.

And to illustrate just how strongly I feel on this matter, I take the very rare
stand of signing with my true name, not my usual Groklaw pseudonym.

Dr Tony Young
Australia


---
Blackbutt, Australia

[ Reply to This | # ]

I created a similar project about 8 month ago ..
Authored by: Anonymous on Sunday, January 15 2006 @ 09:26 AM EST
http://prevalent.de?lang=en

well, it's not really new, it was started on 13. April 2005, but i guess those
new initiatives should take a look at it to prevent unneccessary development
and
idea-finding ;-)

1. Patent search

This area allows you to search for German and European patents and pending
patent applications.
You may also rate patents, add references or create your own set of bookmarks
with patents you are interested in.

2. State of the Art

Finding proof for prior art of a certain patent tends to be a very tedious task
with the huge amount of applications that are being distributed over the
internet.Prevalent offers a free service to have publicly available electronic
data certified by a lawful timestamp.

3. Forum

Discuss along.
The Prevalent-Forum offers a platform for discussing certain patents. This is
also the right place to criticise or suggest enhancements for Prevalent.

4. Objection!

Here we can formulate objections against current patents.

regards,

Jan Kechel

PS: i accidently hijacked another thread, so i repost here to make things
clearer, please excuse this

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )