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The Open Source as Prior Art Discussion Begins
Friday, January 13 2006 @ 06:02 AM EST

I took some time to try to understand the Open Source as Prior Art Project, one of the three new patent initiatives just announced, because that is the one that is asking particularly for the community's input. I also have been in discussions with journalists who are trying to understand it too. The big questions everyone wants to know is, is it a good idea and will it work? Of course, in real life, nothing is as simple as the media would like to portray it, because real life isn't one headline after another. It's a process, with many details, and you don't always know which detail will end up mattering most. With community projects, much depends on how much support there is for the project. But the discussion has begun. And I'll tell you a bit about it, and explain how you can join, if you want to.

Some have asked me if it isn't better to just let the patent system self-destruct, with one stupid lawsuit after another until people wake up and realize that software and patents should get a divorce. As you know, I wish they would myself. So it's a valid question. But here's my analysis.

It's easier to want to have something crash if you are not one of the likely first victims. The US patent system is broken. Everyone knows it. It's a runaway train. And in my opinion, it's heading toward FOSS, not because it should, but because some have SCO-like desires to work the system to target it, to slow down Linux and FOSS adoption. There haven't been enough trained USPTO examiners. And it's hard for them to find prior art, for reasons I'll explain. And patents dangerous to FOSS have issued and more will, if we do nothing. Exhibit A: The FAT patent. (And by the way, Steven J Vaughan-Nichols has it right. That fight is not over.) The Prior Art Project is designed to address those kinds of issues by preventing them in the first place. Here's the description from the project's homepage:

We want to see fewer poor quality patents. We also wish to help people defend themselves against bad patents. Our strategy to achieve this is simple:
Help the USPTO use Open Source as prior art.

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.

The USPTO is asking for help. They are specifically asking the community to help them find prior art, so they can do a better job at what they are legally obligated currently to do. You see, at the moment, the USPTO is forced to follow whatever the current law is. Their job is to allow any submitted patent that meets the legal standard to issue. The only escape from that would be if Congress dictated or maybe the Supreme Court ruled that there shall be no more software patents. I don't think that is happening by Wednesday or any time soon. So, what shall we say to the USPTO in the meantime? That we prefer to criticize them for their mistakes but we won't help fix the problems or better yet, prevent seriously stupid and damaging patents from issuing in the first place?

Suppose you warned a train company that its train design was flawed. Someday, you told them, the train would end up uncontrollable, just flying down the track with its brakes unable to stop it. Let's imagine the company doesn't listen, and sure enough, one day it happens, and a train with hundreds of people on it is hurtling down the track to likely death for many, if not all, and endangering other trains and cars and buses that aren't expecting to have this event and could get caught up in it. What do you do?

You have a choice. Should you let the wreck happen, so everyone finally realizes that what you warned about was accurate and they need to fix their design? Or do you care about the men, women and children on that train and all the innocent bystanders who could be killed or hurt? If you're me, you try to help slow the train down, while still working toward that redesign.

I view the patent system that way too, although I recognize no analogy is perfect and it can't be stretched too far. The point I'm trying to make is this: as currently set up, the system is churning out stupid but dangerous patents that can ruin innocent companies and innocent developers' work, shutting them down for absolutely nothing, simply because they can't afford to defend themselves in the legal process. FOSS is in that category. You've seen the Blackberry lawsuit. It's now asking the Supreme Court again to step in. Can you afford to do the same for your project if some patent troll shows up and starts some stupid patent tricks? You may know you have prior art, but would you rather prove it to the USPTO in advance so that the stupid patent is never granted or have to prove it in a series of courts of law, maybe up to the Supreme Court?

We can either let Linux and FOSS be mangled by a runaway patent system as misused by unprincipled types, or we can help the USPTO get in gear and get some control of this runaway process and prevent the worst abuses. I suspect Microsoft hopes to keep FOSS dealing with legal questions for a long time to come. Imagine if SCO had had patents to play with instead of copyrights and some cobwebbed contracts. So, to me, it's important to head that off, and we have an opportunity with this project. It doesn't preclude addressing other patent issues in other ways.

Now, why is it hard to find prior art currently? In software, it's hard because there is no lexicon, no tagging system that really works. That is the first step in figuring out a way to find prior art, to come up with categories that would be useful to search for. And so that is one of the first goals of the project, and your input would be really valuable. Here's an archive of the discussion so far. If you have ideas and want to express them here on Groklaw, that's fine too. Someone else can export them for you. What matters is to start thinking about categories. Freshmeat has some categories, and the US Patent Office has classifications too, including for software, but they are the ones asking for help, so obviously the system can be improved. The Prior Art Project's Motivation page says this about the goal:

Create standards for tagging or categorization that can be used by all OSS repositories for location and evaluation of OSS.

Here's the page where they list questions for the USPTO. For example, Paul McKenney asked:

What happens to old USPTO categories that are no longer valid, such as 364 and 395? Is there some mapping from these old categories to current categories aside from that applied to the individual patents (e.g., 395/468 apparently maps to 711/141 judging by 5.608,893)?

And David Mohring left links to questions he wanted to ask the USPTO, left as a comment on Groklaw back in February. Here's part of what he wrote:

I understand that the discovery of prior art and the evaluation of the obviousness of an invention are difficult tasks for the United States Patent and Trademark Office (USPTO) patent application examiners to perform. The percentage of patents being overturned under the scrutiny of the courts leads me to believe that the process is not quite as accurate as could be desired. In a few recent cases the existence of publicly accessible digital content has played a part in disclosing prior art. The public, technical and scientific communities use of Internet has to a large extent replaced printed media such as journals for the public disclosure of new ideas. To what extent does the current USPTO patent application examination process take into account public accessible website content? Do the patent examiners currently use Internet search engines such as Google ( ) to locate instances of prior art? Is the changeable and unverifiable nature of some digital content a barrier to its being cited as prior art in the patent application examination process?

The USPTO patent application examiners task could be made more reliable if the examiners could consult one or more public online registries that document cases of prior art and public discoveries. The online registries could provide a means for the public to retroactively point to cases of preexisting prior art for pending patent applications and a means to proactively document publicly known ideas and concepts. Although websites and digitally stored content in general is changeable, individual entries and changes in an online registry could be legally authenticated by means of digital timestamping ( ). An online registry could be hosted by the USPTO as an adjunct to the existing online public patent and patent pending databases. The USPTO could also publicly recognize other individual registries hosted by third parties such as a commercial entity or a non-profit community similar to Wikipedia ( ). An individual adding an entry to such a publicly online registry does not involve granting that individual any form of monopoly, therefore the action need not have any artificial barrier involving fees or payments. Would the existence of digitally timestamped public content overcome any objections by the USPTO to its citing as prior art? Has the USPTO any plans to add some form of publicly accessible feedback mechanism to the patent application process?

I'm sure I don't have to connect the dots for you and point out that the USPTO is responding to those kinds of questions by means of this Prior Art Project collaboration with the community. Here's the FAQ that will answer other questions you may have. It's also where to go to ask questions you may have about the project. And if you wish to point people to other projects that address other patent issues, such as legislative change, here's the Wiki page to list "Patent reform alternatives outside the scope of this project". In short, this is your opportunity to let the USPTO know what you know and wish they knew. Of course, be constructive and no flames. They aren't used to the dynamic conversations that FOSS folks are accustomed to, and they won't hear you if you don't speak politely.

As to why it's so hard to find prior art, it's not just because of not being able to search with keywords due to a lack of a tagging system. In the archives of the discussion about the project, there is this explanation from someone in the IBM Linux Technology Center:

There is a great deal of prior art that either is disadvantaged legally or that is difficult to locate. Changes in terminology over the decades also make it difficult to relate older prior art [to] the newer patent applications, and copyright issues may make it difficult to share older one-off prior art (e.g., hard-copy technical reports collecting dust in academic libraries).

So that's where you come in. You guys know where to find some of those hard copy technical reports that are collecting dust. You also know the Internet and the projects that exist and what they are for, so all of that tech brainpower is tremendously useful to this project. You have what the USPTO lacks.

I see other advantages beyond the patent office, actually, in having such a tagged database of software. Ross Turk of does too, and he left a comment that prompted an exchange with Larry Rosen on what the project can do:

Ross: What we're really talking about here is larger than the legal processes that have catalyzed it - we seek universally accepted standards for the location and evaluation of Open Source Software. ...

Larry: I can sort of understand "location" standards so that OSS can be located for prior art and other purposes. But what do you mean by "standards for ... evaluation"? What would we have to *evaluate* about software in order to determine whether it is prior art for some technology? ...

Ross: Ah, yes. By "evaluation" I'm not necessarily talking about appraisal of quality or business readiness.

I'm fairly ignorant when it comes to how the USPTO works. In fact, my entire exposure to the process was the two or so hours of our meeting in December. I hope to rectify this in the coming months. In this case, I was thinking more about the project's subject matter and its design/implementation abstract of sorts for what the code contains. I would imagine this will help folks analyze whether it's applicable as prior art, and it will benefit the community in other ways.

So that's the scope of the discussion so far. If you wish to join, you need to sign up here, because the primary discussion on ideas and how to implement the project is by means of the discussion list. The project is just getting going, so now is a very good time to share your ideas and thoughts. This isn't a project that is being "run" by someone without you. It's a community project, and like all such community projects, it works best if everyone who has knowledge and skill shares what he or she can. People are the life of any such project, and the real truth is, they can't do this right without you, in my opinion.


The Open Source as Prior Art Discussion Begins | 104 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: feldegast on Friday, January 13 2006 @ 06:09 AM EST
So PJ can find them

The above post is (C)Copyright 2005 and released under the Creative Commons
License Attribution-Noncommercial 2.0
P.J. has permission for commercial use

[ Reply to This | # ]

Off Topic
Authored by: feldegast on Friday, January 13 2006 @ 06:11 AM EST
Please make links clickable where possible

The above post is (C)Copyright 2005 and released under the Creative Commons
License Attribution-Noncommercial 2.0
P.J. has permission for commercial use

[ Reply to This | # ]

The Open Source as Prior Art Discussion Begins
Authored by: Anonymous on Friday, January 13 2006 @ 06:45 AM EST
What about the patents already in existance? If they stop issuing more,
companies aren't just going to tear up their 'precious' IP, even if they are too
broad and only exist to potentially sue someone.

Not that I'm being negative, but if I were a company that had a protfolio of
patents that might just make me rich, I'd hang on to them. (Ok, *I* wouldn't, I
disagree with software patents, but you know what I mean).

I did recently consider a patent for a product I'm developing. Not because I
particulerly want one, but because I'd like to sell my service in america, and
that is a dangerous market for the poor software developer unprotected by
patents. All it would take is one Patent Mining company to see that I'm doing
well, and bam, I'd be in big trouble.

It's a worry, I tell you.

[ Reply to This | # ]

Or the third option...
Authored by: Anonymous on Friday, January 13 2006 @ 06:52 AM EST
You have a choice. Should you let the wreck happen, so everyone finally realizes that what you warned about was accurate and they need to fix their design

Simply pattent the concept of a "train reck" and sue them for trying to infringe using your technology!!

[ Reply to This | # ]

I hate mailing lists
Authored by: jseigh on Friday, January 13 2006 @ 07:04 AM EST
Why can't they make it a blog or a newfeed like gmane even. Although with
newsfeeds it's sometimes a problem finding the authoritative newsfeeds. I've
more than once made postings no one could see using the wrong newsfeed. Google
groups picks up anything so you can't use it to confirm you have the right

[ Reply to This | # ]

How will this help?
Authored by: matlun on Friday, January 13 2006 @ 07:05 AM EST
Even assuming that you manage to improve prior art searches, this will not
significantly improve the situation.

The main problem is not "patent quality" in the sense of prior art
searches. Even if only "valid" (legal according to case law) patents
were granted by the USPTO, many FOSS products would still infringe. See for
example the FAT patents.

The situation will not improve until there are legal changes making (at least
most) software patents illegal. This should happen sooner or later if patent
trolls become enough of a nuisance to large corporations.

[ Reply to This | # ]

The real problem are not software patents, but pharma patents
Authored by: Anonymous on Friday, January 13 2006 @ 07:21 AM EST
All these discussions concentrate on software patents. But, IMHO, the real showstopper for patent reform are pharmaceutical companies. And in that area, patents are even worse than software patents -- they cost lifes, daily in the thousands. Without them, one could give cheap AIDS medicaments to suffering folks in Africa, one would not have patented crops (where farmers are not allowed to grow them on their own, but must buy them from Monsanto and others) or patented living beings. Check out this int eresting information from the Human Genome Project for some background.

And those pharma companies have more political clout than software companies, they play the lobbying game for a while longer and with much more success. Therefore the patent office move is probably a try to appease some IT companies while not opening up patent reform discussion at the same time -- because reform discussion would probably not center on software patents, but would bring in the biopatent issues at the same time.

Cheers, Joachim

[ Reply to This | # ]

The Open Source as Prior Art Discussion Begins
Authored by: rharvey46 on Friday, January 13 2006 @ 08:09 AM EST
Patents used to require implementation details. Under this restriction, Open
Source implementations should be considered valid and non-violating. However,
many patents do not include enough information to determine what they really
cover and / or how to implement the patent.

If a patent does not include implementation details, any Open Source
implementation of the patent should be considered as non-violationing rather
than violating. The patent should have included the details anyhow.
If a patent does include implementation details, the patent can be the basis for
Open Source implementations. Although the patent owner provides an
implementation, this implmentation would still be considered Open Source -
perhaps with some license restrictions - but open to implementations.

Patents were originally intended to provide documentation to allow inovation. At
present, they are used to prevent implmeentation and / or inovation.

If a patent implementation is widely spread, or is the basis for an open
standard, the patent should be considered invalid. The owner should have
defended the patent so that this would not happen. Perhaps, patents should be
declared invalid as soon as the owner changes as well.

There are far too many patents out there. Any programmer may be in violation to
at least one of them, especially since some are on common design patterns or
best practices. This is especially true with web design (one-click patent) or
object oriented programming (patents that appear to be based on visitor pattern
or define structure of an object).

[ Reply to This | # ]

Self exploding PTO system
Authored by: brian on Friday, January 13 2006 @ 08:17 AM EST
"Some have asked me if it isn't better to just let the patent system
self-destruct, with one stupid lawsuit after another until people wake up and
realize that software and patents should get a divorce."

I am of that mindset. Nothing will happen even with this project until Congress
does something about it and other attempts are just howling in the wind. If the
USPTO were honest about the broken system then they should have the gumption to
do something about it and lobby Congress to change it.

As a defensive issue against suits I support this project. As an offensive issue
I don't. What do I see as the "offensive issue"? Easy, there IS NO
SUCH THING AS A GOOD SOFTWARE PATENT! I defy you to name one area of software
development where only one entity should have the exclusive right to develop for
decades to come. Until you can do that I will stand by my belief that software
patents (and business method as well as biological patents) should be abolished.
If having lawsuit after lawsuit until the legal system is so overloaded it can't
possibly cope is what it takes then so be it.



#ifndef IANAL
#define IANAL

[ Reply to This | # ]

The train wreck will never happen.
Authored by: Anonymous on Friday, January 13 2006 @ 08:23 AM EST
Those with vested interests will prevent any train wreck scenario to protect
their pockets.

[ Reply to This | # ]

How about USPTO not just using Google...
Authored by: Anonymous on Friday, January 13 2006 @ 09:35 AM EST
...but developing some kind of searchable system / repository for OSS in
collaboration with Google - I just thought that might be an idea for a new
SourceForge project - what do you think?

*pnd* :-)

[ Reply to This | # ]

The Open Source as Prior Art Discussion Begins
Authored by: PolR on Friday, January 13 2006 @ 09:57 AM EST
Getting rid of software patents requires a strategy to convince a number of
influential people that thinks software patents are bad only because the system
needs a fix. One way to do that is to try fix the system and show how it is
still broken. This procedure gets rid of a lot of red herrings because we can
say "been there, done that, still don't work". This brings the
discussion on the hard core issues that resist every attempts to fix them.

Once it is proven by experience that fixes to the system don't work, people will
find themselves in three camps: the ignorants and they can be educated, the
greedy that won't listen to reason and those that look at the truth in face. It
will be very clear to everyone which camp is which. There will be little room
left for the deluded that honestly believe into fallacies.

I know, this process takes a long time and we would rather get rid of the
patents instead. But if software patents will not be abolished by Wednesday,
this is a positive action that brings us closer to the goal.

[ Reply to This | # ]

The Open Source as Prior Art Discussion Begins - please participate!!!
Authored by: Anonymous on Friday, January 13 2006 @ 10:09 AM EST
We should assist the USPTO to improve the software patent system. Until the US
Congress revises the statutes preventing the issuance of software patents, the
patent office's employees are required by law to issue patents on software.
Educating and providing information to the decision makers aids in their issuing
more reasonable patents. This does not mean give up the struggle to eliminate
software patents, it just helps it from getting much worse than it already has.

Clearly the USPTO has let the community know that it does not have all the
answers and is seeking help. It is on a very short list of government agencies,
US and others, that have taken a non-dictatorial approach and have asked for our
expert assistance. I believe this small, but admirable step should be supported.
One possible result may be the USPTO aiding the battle against software patents,
reduction of frivolous patents is a major step forward.

[ Reply to This | # ]

The Open Source as Prior Art Discussion Begins
Authored by: jplatt39 on Friday, January 13 2006 @ 10:11 AM EST
Boy, this is a beautiful argument. Thank you, PJ. I have to say though, I'm a
lot less optimistic than you are. Yes we are looking at a possible train wreck,
but it has been going on for a very long time, the issue of creative copyrights
(which were discussed so well in that NPR news story about older music) are
directly involved, and while this is a worthwhile activity, I don't think anyone
should get their hopes up too high.

The two threats to open source are a biased intellectual-property legal system
which favors the people with the cash over other claimants and the atmosphere
which comes from it that copyright owners are entitled to do whatever they must
to protect their income. Can you say DRM chips?

The application to patent and software has come along late in the process. To
cite the case I haven't been able to find documentation on in about ten years,
of the TV Guide cover which infringed a photographer's copyright, the image was
a very distorted but recognizeable glamor shot of, I believe, Angela Lansbury in
a Bob Mackie gown. The distortions were intentional, and the reason TV Guide
commissioned the picture. The image was typical of many of Miss Lansbury when
she is onstage (This is all as I remember it and IANAL). I can appreciate that
a photographer would want to get paid for his picture, but by the same logic,
shouldn't Bob Mackie get paid for the use of his gowns on icons? When I heard
the verdict on the news, I was just appalled. I remain appalled today, because
while I myself do some creative work on a small level, I felt, and still feel it
was a defeat for fair use.

Fair use is unfashionable. I don't think I need to cite even the many comments
(think Forbes articles) which have been cited here on Open Software and other
topics. This has been going on in the Entertainment Industry since the eighties
at least. In the nineties it was first applied to computer software and
hardware in a big way.

Digital Rights chips and other computer modifications to prevent copying will by
their nature make it more difficult and expensive to turn to Open Source
Software, and to me this is an equal threat to the patent or copyright FUD. I'm
finding it harder and harder to think of America as the land of opportunity.

[ Reply to This | # ]

A comprehensive, common,Taxonomy is needed
Authored by: Anonymous on Friday, January 13 2006 @ 10:58 AM EST
It is clear that this will need a taxonomy to be in place. One new can be created (a process that I would expect to take quite a long time), or an existing one can be used.

One starting point is the ACM classification. It is far from being complete (a much more indepth break-out on specific software thecniques, for example), and certainly more specific taxonomies should be available out there in the wild world. Also, I am sure the ACM would be more than willing to participate in this effort.

No matter what, instead of re-inventing the wheel...

Of course, whatever is used cannot be under an encumbered patent :-)

[ Reply to This | # ]

If you want to see what this might look like
Authored by: jseigh on Friday, January 13 2006 @ 11:44 AM EST
go take a look at this RCU annotated bibiography by Paul McKenney. It even has one of the patents I did. As an inventor, you know what a patent is supposed to say. You're never quite sure what it actually says after an ip lawyer gets through with it. It's always interesting to see what another technical person makes of the patent. Sort of a double babelfish translation from technicalese to legalese back to technicalese.

[ Reply to This | # ]

The Open Source as Prior Art Discussion Begins
Authored by: Anonymous on Friday, January 13 2006 @ 12:48 PM EST
    You have a choice. Should you let the wreck happen…? If you're me, you try to help slow the train down, while still working toward that redesign.
Would you throw yourself in front of the train to try and stop it, knowing full well that it won't have any meaningful impact (er, on the train anyway)?

It's always good to try and be constructive; by all means, let's do what we can. But it seems foolish to think that this effort will have any noticeable effect on the train. Fortunately, it's also not suicidal.

The problem is that there are already plenty of patents available for the bullies to use, and still more in the pipeline. They don't even have to stand up in court. All it takes is for MS to bluff and FUD about the “uncertain legal standing” of OSS to keep free software out of most businesses, or to prevent critical new technology from being deployed with Linux.

What's more, this will not stop “poor quality” patents from issuing. It will only ensure that they are well-disguised by an application constructed such that the applicant knows beforehand it will not trip over the public knowledgebase.

The bully is already waving his big stick. Whittling a few chips off isn't going to change anything. Having a few big friends, with sticks of their own, is a more realistic strategy for survival. But by all means, let's keep whittling!


[ Reply to This | # ]

The Open Source as Prior Art Discussion Begins
Authored by: IRJustman on Friday, January 13 2006 @ 01:00 PM EST
Okay, I didn't see the first replay of this child thread when I posted my
message critical of Gibson (which still stands). If anything, I don't think the
WMF vuln itself was made as a backdoor. If rocky's article is in fact correct,
then the WMF vuln is apparently someone's excuse to use what really IS a

If there is any truth to this, that IS something to take seriously since
Microsoft DOES have that functionality built into XP. What's inexcusable is
doing this with the user's lack of informed consent. In this case, the fix is
worse than the vulnerability. And what's really violated isn't so much the
computer, but the user's trust in Microsoft.


[ Reply to This | # ]

The train has to go, and plant a garden where the track used to be
Authored by: Anonymous on Friday, January 13 2006 @ 02:30 PM EST

I thought the whole goal would be prevent the train wreck by getting rid of the
train. Sure, we could work really hard to get the defects of the locomotive or
the brakes fixed, but that won't stop a sleeping driver from driving themselves
in front of the train, or a reckless engineer from running the train too fast.
Bad stuff will still happen, and we can say "we made it better". The
best of the best is to park the train in a museum, recycle the steel in the
track, and plant a garden where the tracks used to be.

Have the USPTO listen to the EU, and realize that there are but a few companies
that like software patents. People who understand patents know they serve only
those few large companies. Individuals who get patents will only be run over and
die broke from lawyer fees and such proving themselves right.

[ Reply to This | # ]

It's about the money
Authored by: Anonymous on Friday, January 13 2006 @ 02:59 PM EST
As I understand it the USPO is funded entirely by the fees that it receives for
accepted patents and renewals. If it rejects an application then no money is

This is the first point at which it is broken. Either the application fee should
be non-refundable even if rejected, or the fees should go to a consolidated fund
and the USPO should be given a fixed budget based on number of applications
received or some fixed increment each year.

[ Reply to This | # ]

The Open Source as Prior Art Discussion Begins
Authored by: Anonymous on Friday, January 13 2006 @ 04:36 PM EST

I heartily agree that the system of taxonomy that is at the heart of the present United States patent system is fundamentally flawed. "Software" bears this out clearly, as does the truly-international nature of the flow of ideas in this Internet age.

Although attorneys are clearly being enriched by status quo, it is "patently" obvious that this contretemps is doing much more harm than good.

It is clear to me that it is the duty and obligation of Congress (not the Supreme Court, not the USPTO) to address this issue, and that they must do it with a great deal of not only "public input" but international public-input. All of us -- inventors and users alike -- are stakeholders in this issue. Right now, none of our interests are being served. Furthermore, the interested parties are not only within this country's borders but without.

[ Reply to This | # ]

The Open Source as Prior Art Discussion Begins
Authored by: Anonymous on Friday, January 13 2006 @ 06:31 PM EST
So what requires a patent licence ? Surely not 'writing software'; the writing
process, that is free speech. And copying software requires a copyright licence;
the GPL is a good one.
'Using software, on hardware, to control the controllable forces of nature',
maybe ? Or 'Manufacturing, importing, or marketing devices which control the
controllable forces of nature ?
So if you have this FAT-formatted diskette, and you take a binary dump onto a
piece of paper, do you need to pay Microsoft 25 cents to be allowed to read the
paper, mark it up with your pen, and work out what is in the files ?
Likewise, who knows what a piece of Open Source software actually does ? We know
what its author thinks he or she wanted it to do, usually ... approximately ...
but we do not have a formal specification for it. Only an implementation and
some documentation.

[ Reply to This | # ]

The Problem isn't Software Patents - it's Patents
Authored by: The Mad Hatter r on Friday, January 13 2006 @ 10:03 PM EST
This entire idea makes me nervous. I can see the USPTO saying, "See, we
listened and we fixed things" when all they did was paper over the cracks.

The various National Patent Offices (and I'm including Canada, Australia,
England, and the EU) are breaking the laws that they are supposed to operate
under. Specifically:

1) A device is only patentable if it works.

2) A Patent can only be issued for a novel idea.

Let's consider issue 1. Many patented items that I have researched don't work.
To be specific there's a "reactionless thruster" for spacecraft, a
bunch of engine enhancements for Internal Combustion engines, a variety of
medical treatments, etc. Now I've been asked in the past how a patent for a
non-working device hurts society? Very simply people tend to assume that if a
Patent has been issued that the device works, and therefore it's either worth
buying or worth investing in. Every cent spent on a non-working device is a cent

Then there's item 2. I know of patents for devices that are obvious in several
areas. One such patent covers a vehicle of a certain type fueled something other
than gasoline, however vehicles of another type have used that fuel for close to
50 years! And of course there's all the attempts to patent plant based medicines
that have been in use by idigenous peoples for thousands of years, attempts to
patent types of crops that are common in other nations, attempts to patent minor
modifications of an existing technology from one field so that no one else can
use it in another field. Oh, and of course someone thinks because they managed
to map a part of the human genome first they now own the patent to some of my

The software patent database may help, in a minor way, in one small section of
human endeavor. It's NOT going to help with the rest of the problems, and I fear
that it will only be a way for the USPTO to say, "Look, we fixed it.
Everything's all fine now, nothing to see here, move along."

I'm not sure what the solution is. Possibly legislation which would penalize
those filing bad patents, so that the filers would have to think twice about
their actions. And possibly such legislation should also penalize the Patent
Office for issueing bad patents.

Possibly the "bar" for getting a Patent should be higher.

Possibly we should dump the entire patent system as a waste of time.

I don't know. But I do know that the problems are far deeper than most denizens
of Groklaw can imagine. I'm not in the tech industry, and the stuff I see in my
current industry would make me turn grey if I hadn't already.


[ Reply to This | # ]

The Open Source as Prior Art Discussion Begins
Authored by: Hygrocybe on Sunday, January 15 2006 @ 03:04 AM EST
The Prior Art Project 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

Blackbutt, Australia

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Is another resource useful, if it won't be used?
Authored by: cybervegan on Sunday, January 15 2006 @ 06:27 AM EST
Check out NewsPicks: " A Code Catalog for Software Patents"

Two observations it makes are:

1) Patent examiners already have a software database, the Software Patent
Institute (SPI), but they don't use it much.

2) Most patentable software concepts have probably already *been* patented, but
because of the disingeniuousness of most applications, it's hard to *find*
relevant ones.

This seems almost entirely to be a matter of the restriced time patent examiners
are allowed to examine a software patent application - a mere 26 hours, coupled
with lack of training, because they are no longer required to go on the relevant
SPI course.

It seems to me that this initiative may be more of a placebo than a real cure -
it may just add another resource that the USPTO is criticised for not using.

Wouldn't it make more sense for patent examiners to have blogs where they could
discuss pending swpat applications with the community, as an aid to their
research? The main principle behind patents is disclosure, after all; if someone
wants the monopoly on offer, they should have the confidence to tell the world
about it, loud and clear. Isn't that what patents were supposed to be for
anyway? If an idea is *truly* new, those who need to use it would *gladly* pay a
reasonable fee to do so, because it would save them months, perhaps years of
their own research. I would hazard a guess that with many, if not most, software
patents, more time is spent getting the patent application "right"
(properly obfuscated) than was spent on developing the "invention".

To my mind, projects like "Open Source as Prior Art" are useful mostly
because they are a guage of the level of *concern* of the community.

Surely the answer is to use the principles of Open Source Research, as
championed by PJ, to amplify the effectiveness of the patent examiners, not
merely to give them another tool they don't have the time or training to use.


Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...

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The Open Source as Prior Art Discussion Begins
Authored by: Anonymous on Sunday, January 15 2006 @ 09:11 AM EST
The journals of the ACM must be a huge repository of prior art. These must have
been kept somewhere in America. UNIX was first described in the monthly
Communications back in '69 way before MS, They had a sort of Creative Commons
type license.
And then there is all the documentation on Multics. I bet IBM has some in their
paper library.

[ Reply to This | # ]

Community Input
Authored by: Anonymous on Sunday, January 15 2006 @ 06:06 PM EST
Speaking of community input, what is wrong with grokline and grokdoc? Grokline
has been inaccessible for months, grokdoc has been throwing up a log-in screen
for maintenance for weeks.

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The Open Source as Prior Art Discussion Begins
Authored by: blacklight on Monday, January 16 2006 @ 01:29 PM EST
I noticed an interesting parallel between the US's patent award policy and some
of the English kings' debasing the coinage of the realm:

(1) Bad money drives out good money, just as a sea of bad patents marginalize
good patents. And those who own good patents can't make any products out of
them, because somebody who owns a bad patent will contact them and tell them
that this or that feature of the product is infringing;

(2) The economy grinds to a halt as everyone loses faith in the coinage, and
starts to barter. Think of patents cross-licensing agreements as a reversion to
the barter system;

(3) The economy collapses as the barter system's inefficiencies cause its
breakdown: if you have a dozen eggs and you'd like to exchange them for a pair
of shoes size 9, good luck finding the shoes you want before the eggs go bad.

The US patent award system has debased the entire US patent portfolio. No one,
including those who hold good patents, dares to do anything because they fear
being sued. All high tech flees to more hospitable foreign shores.

There might be those who might pooh pooh this scenario as over the top, and that
the US has historically experienced cyclical fears of patent abuses. However,
the number of patents awarded each year is both the largest ever awarded and is
dwarfed by the number of patents awarded the following year. It's only a matter
of time until the US economy chokes on the US patent award system.

Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.

[ Reply to This | # ]

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