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The Agenda for the USPTO Meeting on Feb. 16
Thursday, February 09 2006 @ 05:13 PM EST

The USPTO has posted the day's agenda for the February 16th meeting regarding the Open Source as Prior Art and Open Patent Review initiatives. It begins at 10 AM and runs until 2 PM. Directions. You can't just show up, though, and be sure of getting in. You must register by email to guarantee a seat.

The Open Source as Prior Art segment begins at 10:15, so please don't be late. That is the one I am most interested in hearing about. One of the things listed for that segment is the following goal: "Identify interest and resources for ongoing effort." The Patent Review segment is at 11:15.

Since patents are the future battleground, from all we can discern, we might as well keep on adding to our armor and our knowledge. That is why I'm making myself read books on patents. Groan. Not my first choice of reading material. But you can't be effective unless you are equipped.

Here are two presentations from the December meeting with the USPTO that led to the decision to try to work together with the OS community to fix some of what's broken, at least the parts we don't need Congress for.

The first presentation [PDF], Open Source as Prior Art, by Kees Cook of OSDL, addresses what is needed for a prior art database to count as prior art. It lists all the places that currently have databases, but it points out some problems., for example, allows a publisher to change time stamps, and others don't stop a publisher from deleting a release. In other contexts, both might be all right, but in the context of wishing to prove something is prior art, both are a problem. See what I mean about knowledge?

The second presentation [PDF] is by the USPTO, and it explains the basics of what qualifies as prior art and what would be useful to the USPTO for search purposes.

Reading them both will help you to prepare for the February meeting. The agenda mentions that at 12:45, there will be a summing up of the identified patent quality initiatives, and at 1:15 there will be a segment for any other ideas you may have on improving patent quality. Deep sixing software patents isn't on the list for this particular day's discussion, so don't waste time bringing that up on the 16th but do save that idea for another forum, another day. This particular agenda is about trying to solve some of the worst problems in the current system, which neither I nor the USPTO can change by Wednesday. Only Congress can change the complete patent system. What can happen, if the USPTO is serious, is fixing the worst offenses, which are real and which are causing real pain. Unnecessary pain. So if you have ideas on that, February 16 is the day. And what I'd really like is if all of you who go, and I know of several already planning to attend, would give us at Groklaw feedback on your impressions.

Finally, please remember that the USPTO is going to be experiencing a measure of culture shock. Please be polite and help them to make the transition to collaboration with the community as smooth as possible. And when you write up your reports, one thing I'd like to know personally is, does the USPTO seem to be serious in intent? What are your impressions? There is a lot at stake here, and we need to evaluate what can be achieved.

Most of us are not patent experts, and it's my view that we need to become better educated on the subject, no matter what our ultimate solution to the patent problem might be. This meeting is, without a doubt, an opportunity to do that, to learn. Even if you say nothing at all at the meeting, you will learn more about the way things work, and that is always valuable. Even in warfare, the sides send out spies to spy out the land, do they not? Why do they do that? Because knowledge is power, and many eyeballs are the solution to lots of problems, so I'm looking forward to hearing from all of you who have the opportunity to go.

Finally, I know a few of you are worried that if we do the database of prior art, it will enable bad actors to fine-tune their patents and be more effective in attacking FOSS. I thought about that a great deal and did some brainstorming. Here's the piece that is missing in that concern. They still would have to make the case that their invention was not obvious. One way to reduce their ability to make that case is to get published and make accessible as many inventions and ideas in the computer software invention world as possible. The more we put out there, in a database set up to meet the requirements to qualify as prior art, the more broadly disseminated an idea, the more likely that idea bumps into other ideas that are related or could become related, and the more obvious and logical the connections are between them.


The Agenda for the USPTO Meeting on Feb. 16 | 148 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The Agenda for the USPTO Meeting on Feb. 16
Authored by: John Macdonald on Thursday, February 09 2006 @ 06:35 PM EST
most of us are not patent experts

The fact that a significant number of people who are not patent experts are interested enough to show up and participate could provide a powerful demonstration to the USPTO that significant harm has not only happened, but it has been seen to have happened. "If no voter complains about a government policy, could it have really been all that bad?" It is much more powerful a demonstration if the people appear to be serious sensible concerned individuals and not weirdo crackpots.


John Macdonald

[ Reply to This | # ]

OT Here, Please
Authored by: TheBlueSkyRanger on Thursday, February 09 2006 @ 06:41 PM EST
You know the drill, clicky links if you got 'em

[ Reply to This | # ]

Corrections Here, Please
Authored by: TheBlueSkyRanger on Thursday, February 09 2006 @ 06:42 PM EST
Keeping them centralized, for easy reference....

[ Reply to This | # ]

What is the difference between FOSS and proprietary?
Authored by: Anonymous on Thursday, February 09 2006 @ 07:30 PM EST
This discussion is centered on the problems that FOSS is having with the patent
system. Why would FOSS problems be any different than the problems experienced
by proprietary software owners?

Steve Stites

[ Reply to This | # ]

The Agenda for the USPTO Meeting on Feb. 16
Authored by: blacklight on Thursday, February 09 2006 @ 08:13 PM EST
"And when you write up your reports, one thing I'd like to know personally
is, does the USPTO seem to be serious in intent?"

I wouldn't be surprised if the USPTO will send some junior stiff with no
decision-making authority. Let's not jump to any conclusions, based solely on
the junior stiff's earnestness and sincerity. It is not what the puppet says
that matters, but what the puppermaster thinks that matters.

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 | # ]

Someone please ask about the Software Patent Institute
Authored by: Anonymous on Friday, February 10 2006 @ 01:57 AM EST

The Software Patent Institute is a "nonprofit corporation formed to provide courses and prior art about software technology to help improve the patent process". It was founded in 1992(!!!) by, among others, IBM.

Why will this initiative work where the SPI clearly failed?

[ Reply to This | # ]

Obviousness is no protection
Authored by: Anonymous on Friday, February 10 2006 @ 04:37 AM EST
The obviousness test is to all intents and purposes dead. The patent office
practically never rejects anything on the grounds of obviousness these days and
blithely hands out patents for complete trivialities. Similarly lawyers seem
extremely reluctant to challenge a patent on the grounds of obviousness because
it is unfortunately almost impossible to prove.

[ Reply to This | # ]

For Patent Beginners...
Authored by: Anonymous on Friday, February 10 2006 @ 07:37 AM EST
For patent beginners, "Patent It Yourself" from Nolo Press is and
invaluable, if a little dated edition-by-edition resource for explaining the
basics of patent filing, prior art gathering and so on. Not a quick read, but
while reading it I could see what I would change about the current system.

For programmers, read it like a giant pseudocode explanation.

-John Le'Brecage

[ Reply to This | # ]

The vagueness problem
Authored by: jseigh on Friday, February 10 2006 @ 09:57 AM EST
It's difficult enough to say what a patent's claims actually say. And almost by definition, a patent troll's patents are going have vague and general claims. So when a patent troll goes after you, you need to be able to show that your code is based on prior art. Proving you haven't infringed a vague claims will be futile, kind of like knowing whether you've "trangressed the unwritten law".

Unless of course your open source project is innovative (i.e. no prior art). Then you're in trouble. :)

[ Reply to This | # ]

Making it easier to attack FOSS
Authored by: seanzig on Friday, February 10 2006 @ 10:22 AM EST
>Finally, I know a few of you are worried that if we do the
>database of prior art, it will enable bad actors to
>fine-tune their patents and be more effective in attacking

This could happen sometimes. However, I think it will happen anyway, at least
to some extent. FOSS source code is easily available by definition, and for
someone wishing to target a specific project (e.g., Linux), it would be smart to
have a look at the code first. I am sure the Microsofts of the world have
learned that lesson by watching SCO.

At least with a database, FOSS has a better chance of fighting back. Basically,
I see this database as such a benefit to the overall situation that the addition
of a minor threat is negligible.

[ Reply to This | # ]

Congress fix the patent system? The Agenda for the USPTO Meeting on Feb. 16
Authored by: Anonymous on Friday, February 10 2006 @ 10:37 AM EST
Will congress change the patent system? Probably. Will congress fix the patent
system. Based on things like the Cann Spam act, I have serious doubts. It
seems to me that anytime they get their fingers into a law, they come up with a
worse mess than when they started out!!! Big Business always seems to control
things, even though they don't vote.


[ Reply to This | # ]

Anybody going
Authored by: Anonymous on Friday, February 10 2006 @ 12:43 PM EST
Has anybody emailed for registration?
Has any registrations been granted?
Maybe you can tell us here.

[ Reply to This | # ]

The Agenda for the USPTO Meeting on Feb. 16
Authored by: Ninthwave on Friday, February 10 2006 @ 01:27 PM EST
Why not have a clause where a prototype needs to be on file or held in escrow
and the prototype be used in comparision in court. This should stop patents
based on an idea with no implementation and kill off alot of submarine patents.

I was, I am, I will be.

[ Reply to This | # ]

Authored by: Anonymous on Saturday, February 11 2006 @ 01:35 AM EST
The more well-defined the problems become.. in the patent system's own terms..
the more pressure proponents of patents will exert on legislators to remove
software patentability.

Your alternative business, economic, or political models are irrelevant,
probably anathema, to congress. They will move when software patents prove to
thwart their property models.

It is most useful to help them discover and describe their problems.

[ Reply to This | # ]

  • Deep-six - Authored by: chrism on Saturday, February 11 2006 @ 11:43 AM EST
My guess for the outcome
Authored by: Anonymous on Saturday, February 11 2006 @ 10:46 AM EST
  1. Software patents cannot be categorised; there is no taxonomy
  2. FLOSS types have better things to do than create 'prior art' databases. Writing software, usually. Servicing it for money, too.
  3. The US can have whatever laws they vote for.
  4. The question 'And just how does that patent support my commercial clients in their businesses' will become important.
  5. Someone will ask about the guarantee. And find that 'selling warranties' is good business.
  6. You will get 'Pedigree Cats', with full lineage, and patent licenses. And 'Mongrel Cats', with 'This space intentionally left blank' in the line for 'Father' on the birth certificate, and questioning look if you ask about patents. Both kinds can catch mice, and both kinds need servicing from time to time. Just like software

    [ Reply to This | # ]

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