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To read comments to this article, go here
Getting Back to Patent Application Bug Spraying...
Tuesday, September 04 2007 @ 09:20 PM EDT

We've been pretty busy with other tasks recently, and now I'm getting concerned about the Peer-to-Patent project participation, because I see some looming deadlines, and I forgot to tell you about them.

For sure I don't want any patents getting approved that might be used against FOSS someday because I wasn't paying attention. My worry is that because we have been busy elsewhere, the Microsoft patent submission might slide by, get approved by default despite there being prior art we neglected to mention, and then the FUD machine can start up about how it's now a super strong patent that made it through a FOSS community examination. I can see some Microsoft blogger now: "Hey guys, this is so great. Groklaw approves of this patent and says it's valid."

EEK. What a nightmare! Please, get to work. There is only a month left to comment on that application.

It's a business method patent application, which is the type I despise the most. How do you find prior art for that? Finding prior art for a business method patent application is exactly like finding prior art for anything else. It could be things such as publications that describe partial aspects of the claimed business method or invention, which if you combined them with other elements would obviously lead to the claimed business method, by the way. But you can also submit comments on obviousness. Also, look through the comments on the article when we first mentioned this patent application, and make sure important information has been sent to Peer to Patent.

There are now 17 open applications currently posted for public review and participation. I know. They added some while we were sleeping. There are three I didn't even notice or tell you about, so I will now. Here's the current list. Another goal that you can help achieve by participating is to demonstrate to the USPTO that the patent examination process works better when it's open. It for sure didn't work well when it was closed. This is an experiment, remember, but the USPTO won't keep doing it unless they are convinced there is value in the process. You are the value.

If you wish to contribute to the Peer to Patent project, what can you do? Review the patent applications. Comment on any of the claims. Submit relevant prior art. Annotate prior art submitted by other members of the community. Anyone can sign up to become a reviewer for Peer-to-Patent. In fact, even though the pilot is limited to patent applications pending in Technology Center 2100 (covering computer architecture, software, and information security), only 39% of participants consider themselves to be computer professionals/technologists. Reviewers have listed their professional roles as anything from students to engineers, journalists to business/industry experts, and everything in between. So, now let's get into the specifics of what needs doing.

The Microsoft Patent Application:

The application from Microsoft is for "Offline Economies for Digital Media". This extremely broad application describes a business method whereby media devices, such as iPods (or in their minds more likely Zunes), would communicate with each other to remunerate the copyright holder even when the buyer re-sells digital content. I gather they wish to find a way to make money from P2P file sharers on- and offline. The Microsoft application cites no prior art. That's where you come in. The patent examiner really needs the community to help find prior publications, products, or code if you want to help with narrowing or even defeating this application, DRM and all. There is less than one month left to participate in reviewing that application. I feel fairly sure that unless you guys find prior art, the USPTO is unlikely to know much about file sharing applications. Would they be likely to know what is obvious in P2P? I see only three prior art comments so far on this application.

3 New Patent Applications:

Here are three *new* ones that have been posted that will be available for the next four months:

An application from IBM, available here. The application describes a system of security management for software applications associated with multiple user registries that includes an integrated console configured to host one or more applications or resource objects in corresponding realms. This is the fourth patent application from IBM and will be available for review until November 26, 2007.

An application from Softwired AG, available here. It describes a method for operating a gateway for wireless mobile clients in a messaging system, a core messaging system, and at least one gateway process or gateway acting as a proxy on behalf of the clients. This is the first application from Softwired AG and will be available for review until December 10, 2007.

An application from Sun Microsystems, available here. The application relates to a system for implementing synchronized objects in software transactional memory comprising one or more processors. It also provides for a memory comprising program instructions executable by the processor in order to implement a transactional- memory manager that is configured to coordinate memory access requests directed at the memory from a plurality of transactions. This is the second application from Sun Microsystems and will be available for review until December 17, 2007.

Short deadlines:

Then there are the first three applications posted, which you have already participated in reviewing. But if you have anything further to add, the deadline is September 12, so it's now or never:

An application from Hewlett Packard, available here. The application relates to a computing system that implements user selectable management alert formats in order for a user to configure one or more devices coupled to the computing system. There are 30 members in this community who have submitted 9 instances of prior art.

An application from Intel, available here. It describes an apparatus and method for prefetching based on register tracking, including a register tracker and a pre-computation slice. There are 16 members in this community who have submitted 4 instances of prior art.

An application from Red Hat, available here. The application is for a system, method and computer program product for allocating physical memory to processes. There are 13 members in this community who have submitted 8 instances of prior art.

You might want to check on those three to make sure any input you made here also got successfully added to Peer to Patent. On Red Hat, my personal view is that I would like Red Hat, and all other FOSS companies, to get as many valid patents as possible for as long as the patent system allows software patents, or until software and patents get a final divorce decree. I think they are important for defense. No. Vital.

You know it was Red Hat's General Counsel Mark Webbink who first came up with the idea of Red Hat's patent promise years ago, years before IBM and others like Open Invention Network started making their patents available that way. He worked with a developer who provided test cases and challenges, and then Webbink drafted the language to answer or accommodate those concerns. The goal was to retain sufficient rights to be able to use the patents defensively, while at the same time letting the community know they would never be used against FOSS. It's a good example of lawyer-geek cooperation.

His other significant contribution was in formulating the legal construct to Red Hat's subscription model that has proven so successful. Now that I think of it, he helped midwife OIN too. He's just sort of retired from Red Hat after working there since 2000, when he became the company's first general counsel. By sort of, I mean he will still represent the company as special counsel on certain legal tasks regarding intellectual property, but he'll have his own legal practice and will be teaching a class in licensing in the fall at Duke University. He'll cover all forms of IP, but definitely he'll cover Open Source and Creative Commons licenses, so if you can find a way to take his class, I surely do recommend it. He's unique. It isn't every person that can say they thought of something first. In that sense, he changed the FOSS world in a way that turned out to matter tremendously. That is what good lawyers do, you know. They look ahead and try to figure out what *might* go wrong, and then they think up a strategy for you to take steps to avoid problems or ameliorate them. You may remember the article of his that Groklaw republished in 2003, "Understanding Open Source Software". He explained a number of things about copyright law, but I think it's worth repeating one small section, to help you understand why I don't personally believe that the model train software case so many of you have written to me about, which is about the Artistic license, has any worrisome relevance to the GPL:

Types of Open Source Licenses

Open source licenses may be broadly categorized into the following types: (1) those that apply no restrictions on the distribution of derivative works (we will call these Non-Protective Licenses because they do not protect the code from being used in non-Open Source applications); and (2) those that do apply such restrictions (we will call these Protective Licenses because they ensure that the code will always remain open/free).

To better appreciate the nature of these licenses, it is helpful to picture software licenses on a continuum based on the rights in copyright extended to the licensee....

Software that has been placed in the public domain is free of all restrictions, all rights under copyright having been granted to the public at large. Licensors of Non-Protective Open Source licenses retain their copyright, but they grant all rights under copyright to the licensee. Licensors of Protective Open Source licenses retain their copyright, grant all rights under copyright to the licensee, but apply at least one restriction, typically that the redistribution of the software, whether modified or unmodified, must be under the same license. Licensors of propriety licenses retain their copyright and only grant a few rights under copyright, typically only the rights to perform and display....

Non-Protective Open Source licenses include: Academic Free License v.1.2; Apache Software License v.1.1; Artistic; Attribution Assurance license; BSD License; Eiffel Forum License; Intel Open Source License for CDSA/CSSM Implementation; MIT License; Open Group Test Suite License; Q Public License v.1.0; Sleepycat License; Sun Industry Standards Source License; University of Illinois/NCSA Open Source License; Vovida Software License v.1.0; W3C Software Notice and License; X.Net, Inc. License; zlib/libpng License; and Zope Public License v.2.0.

Protective Open Source licenses include: Apple Public Source License v.1.2; Artistic License; Common Public License v.1.0; GNU General Public License v.2.0; GNU Lesser General Public License v.2.1; IBM Public License v.1.0; Jabber Open Source License v.1.0; MITRE Collaborative Virtual Workspace License; Motosoto Open Source License v.0.9.1; Mozilla Public License v.1.0 and v.1.1; Nethack General Public License; Noika Open Source License v.1.0a; OCLC Research Public License v.1.0; Open Software License v.1.1; Python License; Python Software Foundation License v.2.1.1; Ricoh Source Code Public License v.1.0; and Sun Public License v.1.0.

See what I mean? They are not in the same bucket.

Since it launched on June 15, 2007, www.peertopatent.org has had nearly 130,000 page views from over 21,000 unique visitors in 109 countries, I'm told. 1,416 visitors have signed up to be peer reviewers and have submitted 66 instances of prior art. Beth Noveck, the force behind Peer-to-Patent, was also recently named one of Managing Intellectual Property's 50 Most Influential People in IP, largely for her work in bringing the project to fruition. You need a free subscription to actually verify that last bit, or just trust me.

: )

Nah. That's not the Groklaw way. Groklaw's way is: trust but verify.


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