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To read comments to this article, go here
Open Invention Network Is Looking For Prior Art -- 2 Ways To Help Out
Wednesday, April 29 2009 @ 08:00 PM EDT

Open Invention Network has announced it has decided to look for prior art on three of the Microsoft patents that were used in the TomTom litigation:
Open Invention NetworkSM (OIN), a collaborative enterprise that enables innovation in open source and an increasingly vibrant ecosystem around Linux, today announced that U.S. patents 5579517, 5758352 and 6256642 have been placed for prior art review on the Post-Issue Peer-to-Patent website associated with the Linux Defenders portal. These patents were recently cited in litigation that targeted TomTom NV.

OIN's mission includes encouraging the Linux community to review patents-of-interest that may be of suspect quality or riddled by questions regarding prior art. Accordingly, the patents used in the recent TomTom patent action have been posted by OIN for review and submission of prior art by the Linux community. Submissions may be made by visiting http://www.post-issue.org, clicking on the appropriate patent and selecting "Submit Prior Art".

I guess we are not alone in wanting to find a way to pin the tail on that donkey. I smiled when I read this quotation from OIN's Keith Bergelt in the press release:
"I encourage active participation from the entire Linux community so that other companies seeking to advance Linux strategies can be better informed about the quality of these patents."
Heh heh. Or the lack thereof.

LinuxDevices has more details for you. Red Hat has already issued a statement, too, strongly endorsing this effort:

Red Hat is pleased to endorse the growing movement within the free and open source community of gathering prior art to undermine invalid software patents. We’re particularly pleased that Open Invention Network’s Linux Defenders has now invited scrutiny of the three patents that Microsoft used in the TomTom case to attack open source, as numerous public reports suggest weaknesses in these patents.
Groklaw members have experience in looking successfully for prior art, so that means us too. If you would like the world to know the exact worth of those FAT patents -- or the lack thereof, more likely -- can you please help? I'll show you a couple of ways you can, if you want to. I think it is important for everyone to understand not only what these patents are worth, but that while proprietary vendors may have money, FOSS is top-heavy with brains and a willingness to work cooperatively to protect our software and our development model. I view this as an extension of the trail we on Groklaw blazed, taking advantage of what the Internet makes possible to work together, no matter where we happen to live. We can't create prior art, but if it's out there, who better to find it? It'll be fun.

Even if you don't personally know of any prior art, you can help by looking through the comments on this Groklaw article, and this one (which also has all the attached patents that were alleged to have been infringed) and make sure that each and every comment that included prior art is submitted here? Once you are there, you will click on the appropriate patent, which at the moment are the top three on the list. Feel free to add prior art to any on the list, but the special call is for the Microsoft patents. If you know you commented on another article with information on prior art on those patents, please take the initiative to submit it yourself.

The 3 Patents

Here's 6,256,642's page, titled 'Method and system for file system management using a flash-erasable, programmable, read-only memory', where you submit prior art; 5,758,352 (b) 'Common name space for long and short filenames'; and 5,579,517 (a) is 'Common name space for long and short filenames' -- so you are set even if others are added to the list later. They are seeking all forms of prior art on all three, but the priority dates that tell us how old the prior art must be varies, so let's break it down. Exactly what do they want us to find?

Prior Art - What Do They Need?

6,256,642 -- Priority Date January 29, 1991:

Including: (a) Publications Published Prior to January 29, 1992 [Publications can include any form of printed or electronic publication that discusses one or more elements of the claim of the patent.]; (b) Products on Sale, Offered for Sale, or Publicly Used Prior to January 29, 1992; (c) Information That This Claimed Invention Was Public Knowledge Prior to January 29, 1992 [Such prior art may include processes embodying the invention that were in the public domain or publicly used by the patent holder, an inventor, or any third party prior to January 29, 1992.]; (d) Patents and Published Patent Applications filed in the U.S. Prior to January 29, 1992; or (e) Knowledgeable Persons [Persons with knowledge of this patent or with knowledge pertaining to any of the other cited prior art].

5,758,352 -- Priority Date April 1, 1993:

Including: (a) Publications Published Prior to April 1, 1993 [Publications can include any form of printed or electronic publication that discusses one or more elements of the claim of the patent.]; (b) Products on Sale, Offered for Sale, or Publicly Used Prior to April 1, 1993; (c) Information That This Claimed Invention Was Public Knowledge Prior to April 1, 1993 [Such prior art may include processes embodying the invention that were in the public domain or publicly used by the patent holder, an inventor, or any third party prior to April 1, 1993.]; (d) Patents and Published Patent Applications filed in the U.S. Prior to April 1, 1993; or (e) Knowledgeable Persons [Persons with knowledge of this patent or with knowledge pertaining to any of the other cited prior art].
5,579,517 -- Priority Date April 1, 1993:
Including: (a) Publications Published Prior to April 1, 1993 [Publications can include any form of printed or electronic publication that discusses one or more elements of the claim of the patent.]; (b) Products on Sale, Offered for Sale, or Publicly Used Prior to April 1, 1993; (c) Information That This Claimed Invention Was Public Knowledge Prior to April 1, 1993 [Such prior art may include processes embodying the invention that were in the public domain or publicly used by the patent holder, an inventor, or any third party prior to April 1, 1993.]; (d) Patents and Published Patent Applications filed in the U.S. Prior to April 1, 1993; or (e) Knowledgeable Persons [Persons with knowledge of this patent or with knowledge pertaining to any of the other cited prior art].
So that's one way to help. But there is a second way. While you are visiting over there, please read this section about defensive publication. It's something we can definitely participate in even if we don't know one thing about FAT patents and it doesn't cost a dime. What is required is brains, not money.

Defensive Publications

What is a defensive publication and how does it help? That page tells us:

Defensive publications, which are endorsed by the USPTO as an IP rights management tool, are documents that provide descriptions and artwork of a product, device or method so that it enters the public domain and becomes prior art. This powerful preemptive disclosure prevents other parties from obtaining a patent on the product, device or method. It enables the original inventor to ensure that they have access to their invention by preventing others from later making patent claims on it. It also means that they do not have to shoulder the cost of patent applications.

The Defensive Publications program, a component of Linux Defenders, enables non-attorneys to use a set of Web-based forms to generate defensive publications. It relies on substantial participation from the open source community as it relates to disclosures. Defensive publication drafts will be reviewed and edited as needed and at no charge by OIN’s attorneys. The completed defensive publication will be added by OIN to the IP.com database, which is in turn used by IP attorneys and the patent and trademark office to search for prior art when examining patent applications.

You can find the forms here, and if you fill one out appropriately, you can prevent others from patenting that invention by creating prior art. They have attorneys at InnovationQ who can help you make sure it's done right:
In the event you have an invention that you would like to have prepared as a defensive publication, please submit your invention here. Upon registration, you will be provided support in structuring your invention so it can be effective as prior art and placed in the public domain. If during the process you wish to have your invention prepared as a patent instead of a defensive publication, we will work with you to facilitate the preparation of a patent disclosure which will be prosecuted and licensed as part of Open Invention Network's patent estate to the broader community on a royalty free and fully paid up basis. The choice is yours. Our interest is in ensuring that the Linux community has an outlet to invent that limits poor quality patents and ensures freedom of action/freedom to operate across the entire ecosystem.
Before you fill anything out, be aware that doing a defensive publication is instead of filing for a patent; by that I mean, after some period of time you can lose the ability to patent your invention, if you were so inclined. I know. Looking for someone on Groklaw who is itching to file for a software patent is like searching for an honest man in a corrupt world. But even if you are not so inclined, I don't want to mislead anyone who is dreaming of a second home or something, just in case. We have many kinds of readers, as opposed to members, and maybe some of our new OOXML readers will want to patent something, and they'll sue me if I mislead them. Kidding, folks. Just kidding.

But seriously, the idea is to very specifically detail whatever your innovation is, and place it into the public domain, as the FAQ explains, so as to "decrease patent litigation in open source by reducing the white space available for companies to obtain new patents and by making the innovations available for others in the community to build from." So if you are dreaming of a software patent, please talk to your lawyer. IANAL. Here's the FAQ which explains how defensive publication works. One tidbit:

4. How can enabling publications be used to help open source?

We are hopeful that the open source community will publish key innovative concepts that you don’t want anyone to patent, and this includes innovative concepts before you physically make them work in areas that you or others think you may eventually want to go.

Get that? It doesn't have to be a working invention to be useful for a defensive publication. So, all you brainiacs out there, if you want to help prevent future attacks on FOSS, start thinking.

: D

Please do. You have two ways now to help, by submitting prior art on the 3 Microsoft patents and/or by filing a defensive publication. The first has priority in the short term, but they are both very useful.


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