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How to fight software patents - singly and together
By Richard M. Stallman
on
September 09, 2004 (8:00:00 AM)
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Software patents are the software project equivalent of land mines:
Each design decision carries a risk of stepping on a patent, which can
destroy your project.
Developing a large and complex program means combining many ideas, often hundreds or thousands of them. In a country that allows software patents, chances are that some substantial fraction of the ideas in your program will be patented already by various companies. Perhaps hundreds of patents will cover parts of your program. A study in 2004 found almost 300 U.S. patents that covered various parts of a single important program. It is so much work to do such a study that only one has been done.
Practically speaking, if you are a software developer, you will usually be threatened by one patent at a time. When this happens, you may be able to escape unscathed if you find legal grounds to overturn the patent. You may as well try it; if you succeed, that will mean one less mine in the field. If this patent is particularly threatening to the public, the Public Patent Foundation may take up the case; that is its specialty. If you ask for the computer-using community's help in searching for prior publication of the same idea, to use as evidence to overturn a patent, we should all respond with whatever useful information we might have.
However, fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria. You cannot expect to defeat every patent that comes at you, any more than you can expect to kill every monster in a video game: sooner or later, one is going to defeat you and damage your program. The U.S. patent office issues around 100,000 software patents each year; our best efforts could never clear these mines as fast as they plant more.
Some of these mines are impossible to clear. Every software patent is harmful, and every software patent unjustly restricts how you use your computer, but not every software patent is legally invalid according to the patent system's criteria. The software patents we can overturn are those that result from "mistakes," where the patent system's rules were not properly carried out. There is nothing we can do when the only relevant mistake was the policy of allowing software patents.
To make a part of the castle safe, you've got to do more than kill the monsters as they appear -- you have to wipe out the generator that produces them. Overturning existing patents one by one will not make programming safe. To do that, we have to change the patent system so that patents can no longer threaten software developers and users.
There is no conflict between these two campaigns; we can work on the short-term escape and the long-term fix at once. If we take care, we can make our efforts to overturn individual software patents do double duty, building support for efforts to correct the whole problem. The crucial point is not to equate "bad" software patents with mistaken or invalid software patents. Each time we invalidate one software patent, each time we talk about our plans to try, we should say in no uncertain terms, "One less software patent, one less menace to programmers: the target is zero."
The battle over software patents in the European Union is reaching a crucial stage. The European Parliament voted a year ago to reject software patents conclusively. In May, the Council of Ministers voted to undo the Parliament's amendments and make the directive even worse than when it started. However, at least one country that supported this has already reversed its vote. We must all do our utmost right now to convince an additional European country to change its vote, and to convince the newly elected members of the European Parliament to stand behind the previous vote. Please refer to www.ffii.org for more information on how to help and to get in touch with other activists.
Copyright 2004 Richard Stallman. Verbatim copying and distribution of this entire article are permitted worldwide without royalty in any medium provided this notice is preserved.
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Interestingly enough, I've always said that and everybody around here believes me to be a loonie!<nobr> <wbr></nobr>:)
When every conceivable patent has been registered, and it's impossible to move or do anything, people will then realize how banal the system is and ignore it altogether. I'm waiting eagerly for that day to come.
When every conceivable patent has been registered, and it's impossible to move or do anything, people will then realize how banal the system is and ignore it altogether. I'm waiting eagerly for that day to come.
This presumes that there will come some magical day when all things are patented and everyone decides on that day to toss the patents. Most likely the demise of the patenets would be a very slow and painful process with the lawyers cleaning up in the meantime.
That logic seems similar to advising every man, woman, and child to use crack so that it will lose its "cool" appeal. The goal may be accomplished, but it's not worth the collateral damage.
but that's how Mutually Assured Destruction (MAD) works too. nuclear deterrence, et al. the day everyone has a patent, either the 5 billion people on this planet will be suing one another, or the whole world will be blessd with common sense that imho is missing in the existing patent systems....
Those who overuse hard drugs have at tendency to remove themselves from the population or be removed, sometimes forcibly. If you allow the same for patents, the large companies will eventually reach a standstill.
Except that the large companies will use their patent portfolios just to exclude new entrants into the industry. Between themselves they will make deals to not take action against each other. That seems to be the sole reason for patent portfolios.
It's not the patent itself, but the threat of litigation from the big money corporations that threatens innovation from free thinkers.
So it would not concern the big corporates if a small concern tried to sue them, it would just justify the retainers paid to their patent laywers, and there would likely not be a result that would benefit the innovator. (Microsoft have been regularly sued and have grown stronger, the companies thet have beaten Microsoft in court have mostly disappeared )
Ironically the patent laws were set up to protect intellectual property of creative but poor people. but the proccess has been hijacked by big business.
Private financial interests also control most goverments to boot.
If you would like expose a conspiracy or just to blog my site go over to:
<A HREF="http://peterretief.tekboer.tk/" title="tekboer.tk">http://peterretief.tekboer.tk/</a tekboer.tk>
Peter Retief
So it would not concern the big corporates if a small concern tried to sue them, it would just justify the retainers paid to their patent laywers, and there would likely not be a result that would benefit the innovator. (Microsoft have been regularly sued and have grown stronger, the companies thet have beaten Microsoft in court have mostly disappeared )
Ironically the patent laws were set up to protect intellectual property of creative but poor people. but the proccess has been hijacked by big business.
Private financial interests also control most goverments to boot.
If you would like expose a conspiracy or just to blog my site go over to:
<A HREF="http://peterretief.tekboer.tk/" title="tekboer.tk">http://peterretief.tekboer.tk/</a tekboer.tk>
Peter Retief
The problem is a little worse than you suggest.
Right now it is on the onus of the defendant to come up with hundreds of thousands or millions of dollars to defend against bogus IP claims (not just patents) as in the SCO debacle.
Now that that mess is on the verge of being closed down as baseless, who is going to pay for the damages?
Why should IBM's customers pay for SCO's insanity? How about Red Hat's? Or Auto Zone's? Or any of the other companies whose finances have been uselessly wasted by nuisance lawsuits from "individuals" who never even had the IP in the first place!
If the patent system was a database of valid patents, this wouldn't be a problem, but it's really too late. The system is so clogged with useless tripe and garbage from people using creative language to describe ideas people like Alan Kay and the Smalltalk team came up with 30-40 years ago.
All we're doing is following through on those visions now that we have the technology to do so, and anyone who wants to claim that they have a unique "patent" on the ideas involved should be the one required to prove they've done their research. If the language is confusing, send it back for rework and refiling, don't just blindly approve it!
You don't understand how patent portfolios are being used and why this is such an issue. The problem is that the idea of the lone, poor inventor coming up with a new idea, or a bunch of white-coated scientists running around at a research firm, both being funded by patents, this popular view, is completely inaccurate.
Companies amass a large number of patents. There are so many existing patents, that large players in a particular field (say, operating systems, hard drives, or GPU chips) have discovered that it's simply impossible to product any new products without infringing on patents. They took the only logical approach -- mass cross-licensing. So Microsoft and Apple bring out their legal folks and ink an agreement -- now Microsoft can use ideas patented by Apple, and Apple ideas patented by Microsoft. To do otherwise would cripple each company, as neither could produce any products.
It is very common in large industries for all the players involved to cross-license patents. All the GPU manufacturers (Nvidia, ATI, etc) cross-license patents. Otherwise, nobody could produce new products.
Patent portfolios are only very rarely used to protect new ideas, to cause research to be funded, as was their original intent. I worked at a corporate research wing belonging to a Fortune 500 company -- a typical company involved in this sort of thing. When someone produced a new idea that was actually valuable against competitors, that idea would absolutely not be patented. Why? Because then the improvement would have to be made public, and all competitors would have it available. No, these improvements remained secret. However, trivial improvements were frequently patented. As a matter of fact, researchers were generally evaluated based on the number (not quality) of papers they had written -- and especially the number of patents they churned out each year. This kind of reward system led to many reformulated papers describing identical systems slightly differently and uninteresting patents. However, researchers did it -- because that was what paid the bills and kept them from being let go.
But why, you ask, do they do this? It seems like there would be no point to patenting anything! Here's where things take a bit of a twist that the average Joe isn't aware of. There is a very valuable tactic that patent portfolios *can* be used for. Establishing a barrier to entry in an industry. If S3, Nvidia, and ATI all hold patents that are absolutely crucial for producing modern GPUs, it becomes impossible for a new competitor or an existing company like Motorola to enter the market and begin offering product. Instead, the group of existing companies in the field establishes a stranglehold. Every now and then, two companies in the field merge, or one goes out of business, and the pool of providers in the industry just gets a little bit smaller. The market gets bigger and more profitable for the existing players. Of course, this is highly anticompetive, and no company will publically admit to using tactics like this, even if everyone does it. However, it is an effective way to give shareholders value and increase profit, and it is unlikely to go away.
The main "legitimate reason" companies claim for needing patent portfolios is simple -- defensive purposes. Many companies say that they will not use their portfolios offensively, just in defense. Microsoft, for example, has made this statement towards Linux. However, even if this statement is made in the best of faith, every company will eventually come to dire straits one day -- as SCO did -- and start using any of its available IP assets to try to slow its crumble. Furthermore, when a company goes under, it sells its IP assets off to other companies. Who is to say that these companies will be as scrupulous and honor-bound as the first company?
No, there are a number of things wrong with the patent system.
Here are my proposed changes to the US patent system:
1) Eliminate the software patent. It does not serve a good purpose. The overwhelming majority of technical improvements I am aware of have not come from patents. They have come from academic researchers with government funding, or from engineers building a product that require a solution to a problem. It simply is not required, and hurts a rapidly-moving industry. Software does not live long, and generally the implementation of an idea (which it can be expected of the inventor to provide) has enough time before reverse-engineering and marketing to provide funding to produce new ideas.
2) Institute a rule banning further "trivial" patents. If a patented idea is a solution that any educated person in the field would suggest when presented with the problem in five minutes or so, the idea is trivial and should not be patented. Yes, legally this can be difficult to prove, but there are clearly trivial patents being allowed through today.
3) Place patent challenge fees on the *loser* of a patent challenge, not the *challenger*. Currently, it costs perhaps $2000 plus legal fees to obtain a patent. Depending on whether inter partes or ex parte challenges are being used, it may cost $12,000 or more simply to challenge a patent. It is vastly cheaper to produce more patents than it is to challenge such a patent, so we continue to see ridiculous patents -- why not? It's worthwhile to produce them.
4) Allow a patent holder to freely and at any time in the lifetime of a patent, choose to release a patent into the public domain. Give them the opportunity to do before any challenge goes through.
5) Increase the cost of additional claims in a patent to one-half the cost of an additional patent, and limit the number of additional claims to a smaller number, perhaps ten. Currently, it is almost entirely to the benefit of a patent filer to do no prior art research, to file many claims (even ones that are known to be bogus, but will take a victim of an infringement lawsuit time and money to research, especially if the infringement lawsuit involves many patents) in each patent. Thus, most patents have additional claims of the following sort: "1. Foo", "2. Foo with multiple antennas", "3. Foo with multiple antennas shaped like a Yagi structure". This means that every victim of a patent infringement lawsuit must dig through a large number of bogus claims. The filer has little reason not to try filing over-general claims, since even if one claim is invalidated, it does not invalidate other claims.
6) Include a "clarity" criteria. Currently, it is to a filer's benefit to make patent applications as difficult to read as possible, so that they will slip past the examiner (or make it prohibitively difficult to fully examine the patent) but can still be pulled out to attack a victim with. If the patent examiner feels that a patent application is "unclear" or more difficult to understand than is necessary, I would like to see them be able to simply reject it based on these grounds. This would tend to improve the clarity of the US Patent Office database, and make it a more valuable resource for people who use it. Since this database is write once, read many, it seems very reasonable to put the burden of ensuring that the ideas are comprehensible on the patent appliers.
Just my two cents.
Companies amass a large number of patents. There are so many existing patents, that large players in a particular field (say, operating systems, hard drives, or GPU chips) have discovered that it's simply impossible to product any new products without infringing on patents. They took the only logical approach -- mass cross-licensing. So Microsoft and Apple bring out their legal folks and ink an agreement -- now Microsoft can use ideas patented by Apple, and Apple ideas patented by Microsoft. To do otherwise would cripple each company, as neither could produce any products.
It is very common in large industries for all the players involved to cross-license patents. All the GPU manufacturers (Nvidia, ATI, etc) cross-license patents. Otherwise, nobody could produce new products.
Patent portfolios are only very rarely used to protect new ideas, to cause research to be funded, as was their original intent. I worked at a corporate research wing belonging to a Fortune 500 company -- a typical company involved in this sort of thing. When someone produced a new idea that was actually valuable against competitors, that idea would absolutely not be patented. Why? Because then the improvement would have to be made public, and all competitors would have it available. No, these improvements remained secret. However, trivial improvements were frequently patented. As a matter of fact, researchers were generally evaluated based on the number (not quality) of papers they had written -- and especially the number of patents they churned out each year. This kind of reward system led to many reformulated papers describing identical systems slightly differently and uninteresting patents. However, researchers did it -- because that was what paid the bills and kept them from being let go.
But why, you ask, do they do this? It seems like there would be no point to patenting anything! Here's where things take a bit of a twist that the average Joe isn't aware of. There is a very valuable tactic that patent portfolios *can* be used for. Establishing a barrier to entry in an industry. If S3, Nvidia, and ATI all hold patents that are absolutely crucial for producing modern GPUs, it becomes impossible for a new competitor or an existing company like Motorola to enter the market and begin offering product. Instead, the group of existing companies in the field establishes a stranglehold. Every now and then, two companies in the field merge, or one goes out of business, and the pool of providers in the industry just gets a little bit smaller. The market gets bigger and more profitable for the existing players. Of course, this is highly anticompetive, and no company will publically admit to using tactics like this, even if everyone does it. However, it is an effective way to give shareholders value and increase profit, and it is unlikely to go away.
The main "legitimate reason" companies claim for needing patent portfolios is simple -- defensive purposes. Many companies say that they will not use their portfolios offensively, just in defense. Microsoft, for example, has made this statement towards Linux. However, even if this statement is made in the best of faith, every company will eventually come to dire straits one day -- as SCO did -- and start using any of its available IP assets to try to slow its crumble. Furthermore, when a company goes under, it sells its IP assets off to other companies. Who is to say that these companies will be as scrupulous and honor-bound as the first company?
No, there are a number of things wrong with the patent system.
Here are my proposed changes to the US patent system:
1) Eliminate the software patent. It does not serve a good purpose. The overwhelming majority of technical improvements I am aware of have not come from patents. They have come from academic researchers with government funding, or from engineers building a product that require a solution to a problem. It simply is not required, and hurts a rapidly-moving industry. Software does not live long, and generally the implementation of an idea (which it can be expected of the inventor to provide) has enough time before reverse-engineering and marketing to provide funding to produce new ideas.
2) Institute a rule banning further "trivial" patents. If a patented idea is a solution that any educated person in the field would suggest when presented with the problem in five minutes or so, the idea is trivial and should not be patented. Yes, legally this can be difficult to prove, but there are clearly trivial patents being allowed through today.
3) Place patent challenge fees on the *loser* of a patent challenge, not the *challenger*. Currently, it costs perhaps $2000 plus legal fees to obtain a patent. Depending on whether inter partes or ex parte challenges are being used, it may cost $12,000 or more simply to challenge a patent. It is vastly cheaper to produce more patents than it is to challenge such a patent, so we continue to see ridiculous patents -- why not? It's worthwhile to produce them.
4) Allow a patent holder to freely and at any time in the lifetime of a patent, choose to release a patent into the public domain. Give them the opportunity to do before any challenge goes through.
5) Increase the cost of additional claims in a patent to one-half the cost of an additional patent, and limit the number of additional claims to a smaller number, perhaps ten. Currently, it is almost entirely to the benefit of a patent filer to do no prior art research, to file many claims (even ones that are known to be bogus, but will take a victim of an infringement lawsuit time and money to research, especially if the infringement lawsuit involves many patents) in each patent. Thus, most patents have additional claims of the following sort: "1. Foo", "2. Foo with multiple antennas", "3. Foo with multiple antennas shaped like a Yagi structure". This means that every victim of a patent infringement lawsuit must dig through a large number of bogus claims. The filer has little reason not to try filing over-general claims, since even if one claim is invalidated, it does not invalidate other claims.
6) Include a "clarity" criteria. Currently, it is to a filer's benefit to make patent applications as difficult to read as possible, so that they will slip past the examiner (or make it prohibitively difficult to fully examine the patent) but can still be pulled out to attack a victim with. If the patent examiner feels that a patent application is "unclear" or more difficult to understand than is necessary, I would like to see them be able to simply reject it based on these grounds. This would tend to improve the clarity of the US Patent Office database, and make it a more valuable resource for people who use it. Since this database is write once, read many, it seems very reasonable to put the burden of ensuring that the ideas are comprehensible on the patent appliers.
Just my two cents.
Oh, yes. Forgot #7:
7) Try to streamline common patent challenges. There should be enough instructions and information available, and the process should be made simple enough that a person skilled in their field can raise a basic prior art claim in the field without the aid of a lawyer. This means that if a company files a bogus patent, every person in that field willing to take a very small risk at the loss of the challenge fee can file a challenge. This will tend to improve the accuracy of the USPTO database (as well as encourage filers to do prior art research before filing).
7) Try to streamline common patent challenges. There should be enough instructions and information available, and the process should be made simple enough that a person skilled in their field can raise a basic prior art claim in the field without the aid of a lawyer. This means that if a company files a bogus patent, every person in that field willing to take a very small risk at the loss of the challenge fee can file a challenge. This will tend to improve the accuracy of the USPTO database (as well as encourage filers to do prior art research before filing).
Sounds all nice but you forget one main problem:
Right now it is economically sound for the patent office to grant as many patents as possible no matter how clearly woid they are.
The patent office should be penalized for every patent they grant and which later is overturned in court.
Make the penalty high enough and they might start doing their job.
Right now it is economically sound for the patent office to grant as many patents as possible no matter how clearly woid they are.
The patent office should be penalized for every patent they grant and which later is overturned in court.
Make the penalty high enough and they might start doing their job.
"everybody will own a patent." -- no, people don't own patents, typically. corporations do, multinational corporations at that. Patents are one means by which a commons (such as free software) is divided up into ownable chunks for purchase or trade by the giants. Bill Gates recognized this early on when he said (paraphrased) that if patent power existed 20 years ago as it does now, the field of computing would have ground to a halt wherein the giants can charge what they will to prevent future competition.
"everybody will have to share their patent with someone else." -- again, no. Patent holders don't have to license their patents to anyone. In fact, a whole new field of business has arisen through patents; parasitical patent holding companies whose main line of work is to sue others for infringing on their patents. They have no plans to make anything based on the patent (nor would that help us if they did), nor do they plan to license the patent (and that would not help us if they did, plenty of patents are licensed in such a way to be incompatible with free software).
"everybody will sue everyone else anyway." -- no, the multinational corporations (like IBM, HP, and Microsoft) will cross-license one another for their patents. smaller businesses who happen to acquire a patent will lose the monopolistic competitive edge patents are built to grant. Cross-licensing keeps the rich rich and builds their empire in such a way as to exclude the poor.
RMS covers all this and more in his talk on the danger of software patents. You can download a transcript or the Ogg Vorbis audio files from audio-video.gnu.org.
In agriculture, patents are even worse because there are lives on the line. In India, for example, Monsanto sells terminator seeds which grow plants that do not grow useful seeds (if they grow seeds at all). Thus, poor Indian farmers must keep buying from Monsanto and many of them go into such debt they commit suicide. Seed activists like Dr. Vandana Shiva tell people to violate the patent, stop doing business with Monsanto and the like, and save seed as farmers have done for centuries. She describes the situation quite well in her talks and in the movie "The Corporation" which I heartily recommend seeing.
J.B. Nicholson-Owens
"everybody will have to share their patent with someone else." -- again, no. Patent holders don't have to license their patents to anyone. In fact, a whole new field of business has arisen through patents; parasitical patent holding companies whose main line of work is to sue others for infringing on their patents. They have no plans to make anything based on the patent (nor would that help us if they did), nor do they plan to license the patent (and that would not help us if they did, plenty of patents are licensed in such a way to be incompatible with free software).
"everybody will sue everyone else anyway." -- no, the multinational corporations (like IBM, HP, and Microsoft) will cross-license one another for their patents. smaller businesses who happen to acquire a patent will lose the monopolistic competitive edge patents are built to grant. Cross-licensing keeps the rich rich and builds their empire in such a way as to exclude the poor.
RMS covers all this and more in his talk on the danger of software patents. You can download a transcript or the Ogg Vorbis audio files from audio-video.gnu.org.
In agriculture, patents are even worse because there are lives on the line. In India, for example, Monsanto sells terminator seeds which grow plants that do not grow useful seeds (if they grow seeds at all). Thus, poor Indian farmers must keep buying from Monsanto and many of them go into such debt they commit suicide. Seed activists like Dr. Vandana Shiva tell people to violate the patent, stop doing business with Monsanto and the like, and save seed as farmers have done for centuries. She describes the situation quite well in her talks and in the movie "The Corporation" which I heartily recommend seeing.
J.B. Nicholson-Owens
If we force patent apologists to apply the justification used for software and business method patents to every field of human endevour, including recursive patents on patent law itself then the system falls. What's good enough for the goose is good enough for the gander, let's force these patent proponents to eat their own dogfood.
Unfortunately, this doesn't work. The copyright law is at the stage you describe right now regarding computer programs. Do you think there is 70%<nobr> <wbr></nobr>,,piracy'' in homes (or what's the number) because 70% of us are thieves? No, it's because the law is wrong or it want's something that can't be fulfilled or is too restrictive for modern technology or is just plain stupid. What is the result? Did the concept of copyright collapse in this digital age? Are the man in power trying to reevaluate it or abolish it? I think you know the answer...
I am a lone programmer. No real budget to defend myself, no budget to go on the offensive. I just have to hope that I am under the radar.
We've allowed side-ways swinging to be patented. We've allowed IBM to patent the "Automated Masterbatoroy Device" (in-joke: IBM owns AMD) I have seen patents where wireless comms replaced wired comms, and that was found to be worthy of a patent.
The patent office has accepted our joke test patents. What has been done? Nothing. Patents are not bad. They are used to encourage research, by protecting it. Without patents, the stakes wouldn't be high. We wouldn;t have all these wonderful drugs if we didn't have patent protection.
I love patents. But I hate them when they get in my way of something I can invent myself in 5 minutes. Patents are being abused. The funamental flaw here is that patent officers are not experts in their field. They are then paid on the basis of granting patents. The easiest way is to to change them to strict salary workers.
I have a friend that had a novel idea. He went for a patent (at a huge cost to him), and it was rejected due to obviousness. (It was not software, but mechanical) How does he get denied yet sideways swinging is patentable?
I say we have proved the patent system is broken, yet it remains that way.
We should instead abuse it. Eventually, someone will realize that it is too broken and no longer advances scientific progress, but impeeds it. Of course int he meantime a huge IP industry is blossoming. Those in it will fight. Until we have Mutually Assured Destruction. Oh, wait, we aleady have that.
When will this house of cards fall?
We've allowed side-ways swinging to be patented. We've allowed IBM to patent the "Automated Masterbatoroy Device" (in-joke: IBM owns AMD) I have seen patents where wireless comms replaced wired comms, and that was found to be worthy of a patent.
The patent office has accepted our joke test patents. What has been done? Nothing. Patents are not bad. They are used to encourage research, by protecting it. Without patents, the stakes wouldn't be high. We wouldn;t have all these wonderful drugs if we didn't have patent protection.
I love patents. But I hate them when they get in my way of something I can invent myself in 5 minutes. Patents are being abused. The funamental flaw here is that patent officers are not experts in their field. They are then paid on the basis of granting patents. The easiest way is to to change them to strict salary workers.
I have a friend that had a novel idea. He went for a patent (at a huge cost to him), and it was rejected due to obviousness. (It was not software, but mechanical) How does he get denied yet sideways swinging is patentable?
I say we have proved the patent system is broken, yet it remains that way.
We should instead abuse it. Eventually, someone will realize that it is too broken and no longer advances scientific progress, but impeeds it. Of course int he meantime a huge IP industry is blossoming. Those in it will fight. Until we have Mutually Assured Destruction. Oh, wait, we aleady have that.
When will this house of cards fall?
You really a programmer? How can you confuse patents in other fields of research (like drugs) with the ones upon software? Will someone have patended the idea of binary rapresentation (it's really original, isn't it?) rapresent a good patent to you? What about patending the "addition" or "subtraction" algorithm? What about patenting verbs and nouns, or a original combination of them (phrases) and prevent others to use them?
As I just in another note, let ms take out every 'stupid patent' there is. It's a good use of their billions, and they can only use them for self-defence from deep-south juries.
File a Disclosure Document with the patent office.
<A HREF="http://www.uspto.gov/web/offices/pac/doc/general/index.html#disclosure" title="uspto.gov">http://www.uspto.gov/web/offices/pac/doc/general/<nobr>i<wbr></nobr> ndex.html#disclosure</a uspto.gov>
This is a lot cheaper than a patent.
This helps keeps others from patenting your idea.
If you plan to give your idea to the community anyway then this is the way to go. Someone else may still try to patent your idea but at least you have documented a prior art.
<A HREF="http://www.uspto.gov/web/offices/pac/doc/general/index.html#disclosure" title="uspto.gov">http://www.uspto.gov/web/offices/pac/doc/general/<nobr>i<wbr></nobr> ndex.html#disclosure</a uspto.gov>
This is a lot cheaper than a patent.
This helps keeps others from patenting your idea.
If you plan to give your idea to the community anyway then this is the way to go. Someone else may still try to patent your idea but at least you have documented a prior art.
Re:File a Disclosure Document on your Idea
Posted by: Anonymous Coward on September 10, 2004 08:48 PM
Do you also have the US $2,000,000, which is the average cost of invalidating an invalid patent in court? Prior art helps extremely little, unless you have tons of money (in which case it's probably cheaper to buy yourself a defensive patent portfolio, which in turn makes the system even harder to abandon).
Re:File a Disclosure Document on your Idea
Posted by: Anonymous Coward on September 12, 2004 03:36 PM
I'm not a US patent agent (but a I am a Dutch patent agent (and against patents on software, btw)), but I think you're incorrect. In the US, they have the "First to invent" system. So, you are actually filing proof of the date that you invented something. Your link explicitly states that the document you file is not published. In other words: it never becomes prior art to another patent application (unless you take further action, as indicated in that link). So, it does not help keep others from patenting your idea.
In theory, if you patent every possible idea at once, it's a one-time deal. It can never be re-patented, right? So, when all the patents expire, they expire forever.
Obviously, that won't happen in reality. And new ideas keep coming. Our best bet, I think, is the prior art repository -- publish every trivial technical idea possible, even if it can't be implemented yet.
Unless and until patent law changes, that's the only way I can see to prevent abuse.
Obviously, that won't happen in reality. And new ideas keep coming. Our best bet, I think, is the prior art repository -- publish every trivial technical idea possible, even if it can't be implemented yet.
Unless and until patent law changes, that's the only way I can see to prevent abuse.
They can and do -- but apparently, sometimes and absurdly, they don't.
Maybe the prior art repository will have to be defensively absurd.
Maybe the prior art repository will have to be defensively absurd.
maybe a war of attrition againt microsoft and any other greedy propriatory software company, let them paint themselfs in to a corner and they will eventually starve...
the real business is in service & support anyway
the real business is in service & support anyway
Would a WikiPriorArt database be a good idea? Perhaps under the realm of WikiMedia (Who does Wikipedia, Wikibooks etc.).
Everyone can document when the idea was first made, exactly since there is a history function for all to see.
What do you think?
Everyone can document when the idea was first made, exactly since there is a history function for all to see.
What do you think?
I think it's a terrific idea. But now we need the resources and the planning.
allow china to own patents for their stuf
Posted by: Anonymous Coward on September 10, 2004 08:06 AM
here is the best way to fix the patenting problem: the chinese govt., for example, should pass a law IN THEIR OWN LAND, that states that any use or adaptation of their inventions or technologies since the past 10,000 years, are automatically patented by them. they should then go and charge a patent fee and/or penalty from the civilised world using paper, or epaper, or whatever. and that is just one invention. they have several thousands. brazilian rainforest tribes must be granted similar rights to their medicines and medicinal plants. ditto for all other ancient and indigenous civilizations of the world. that'll fix the patenting problems we face today.
With Software Patents rulling the world, programming will not be a job for programmers. The "new age" (the future) programmers will be graduated in Law school (I mean they will be lawyers). And programmers will, never more, make money coding. They will make money suing one another.
In fact the lack of an organisation such as FFII contributed to the fact that patent attorneys won in the US. It is important to get organized in order to defend your intrests. Lobbying is not difficualt, no anti-corporative paranoia please.
FFII also has a US list:
http://lists.ffii.org/mailman/listinfo/us-parl
The main documentation work of FFII moved to the Wiki.
http://kwiki.ffii.org/SwpatcninoEn
Cnino is Lojpan and means 'News'.
FFII also has a US list:
http://lists.ffii.org/mailman/listinfo/us-parl
The main documentation work of FFII moved to the Wiki.
http://kwiki.ffii.org/SwpatcninoEn
Cnino is Lojpan and means 'News'.
First, corporations are too powerful to allow patent protections to be weakened. Changing the system is not going to happen.
What needs to be found is a way to overload the system. I wish I knew a solution as elegant as the GPL is...but I don't.
Here's a guess though...
Maybe idea registries supported with digital signatures that keep the ideas secret. The system would only be searchable by people who agree not to patent any software ideas.
Because it is secret, it would represent a risk to anyone applying for a patent. They wouldn't know if their great patent for an invention storing data in method xyz has already been discovered.
A solution can be found by keener minds.
What needs to be found is a way to overload the system. I wish I knew a solution as elegant as the GPL is...but I don't.
Here's a guess though...
Maybe idea registries supported with digital signatures that keep the ideas secret. The system would only be searchable by people who agree not to patent any software ideas.
Because it is secret, it would represent a risk to anyone applying for a patent. They wouldn't know if their great patent for an invention storing data in method xyz has already been discovered.
A solution can be found by keener minds.
If the USA were the only country in the world, the situation would be hopeless because the established corporations like patents: patents effectively eliminate competition from start-ups. And the big corporations can buy the politicians.
But if some important region - maybe Europe - does not allow software patents, it will have a more competitive IT industry and cheaper software. When that happens, it will become more difficult for Microsoft etc to bribe our pols to keep software patents, because it will become obvious that software patents damage every consumer of software.
So there is a hope, if we can just win the political battle elsewhere.
Public Patent Foundation attorney inflated his bio
Posted by: Anonymous Coward on September 12, 2004 09:39 AM
Daniel Ravicher, the founder of pubpat.org and part of OSRM seems to have told some half truths about his legal experience. From Forbes.com:
OSRM's team includes<nobr> <wbr></nobr>..."lead patent counsel" Daniel Ravicher, a 29-year-old lawyer in private practice who last year started a foundation that claims half of the patents in the United States are illegitimate.
Ravicher, who performed the patent analysis that turned up Linux's 283 possible patent violations, claims on his Web site that he has "extensive experience litigating, licensing, prosecuting and otherwise counseling clients with respect to patents." In fact, he has three years of experience as an associate at two law firms in New York and has never acted as lead counsel on any patent litigation.
Ravicher's online bio also claims that he "practiced law" at Skadden, Arps, Slate, Meagher & Flom, one of the country's most prestigious law firms. Actually, he spent eight weeks at Skadden as a summer intern while he was still attending law school.
http://www.forbes.com/technology/2004/08/02/cz_dl<nobr>_<wbr></nobr> 0802linux.html
OSRM's team includes<nobr> <wbr></nobr>..."lead patent counsel" Daniel Ravicher, a 29-year-old lawyer in private practice who last year started a foundation that claims half of the patents in the United States are illegitimate.
Ravicher, who performed the patent analysis that turned up Linux's 283 possible patent violations, claims on his Web site that he has "extensive experience litigating, licensing, prosecuting and otherwise counseling clients with respect to patents." In fact, he has three years of experience as an associate at two law firms in New York and has never acted as lead counsel on any patent litigation.
Ravicher's online bio also claims that he "practiced law" at Skadden, Arps, Slate, Meagher & Flom, one of the country's most prestigious law firms. Actually, he spent eight weeks at Skadden as a summer intern while he was still attending law school.
http://www.forbes.com/technology/2004/08/02/cz_dl<nobr>_<wbr></nobr> 0802linux.html
Re:Public Patent Foundation attorney inflated his
Posted by: Anonymous Coward on September 13, 2004 12:25 AM
Would you happen to have a reliable source? I mean, come on, Forbes. What's next, Martians abducted your cow?
Keep up the good fight, RMS. The world will become a better place as we stomp out these toll-gates of ignorance.
mhack
mhack
"The world will become a better place as we stomp out these toll-gates of ignorance"
These ludicrous patents are only applicable in America. While America is in-figting and suing the world innovates.
And the American Goverment wants the rest of the world to accept these patents through embargo's etc. - good luck!
These ludicrous patents are only applicable in America. While America is in-figting and suing the world innovates.
And the American Goverment wants the rest of the world to accept these patents through embargo's etc. - good luck!
This goes much further than only software....
Posted by: Anonymous Coward on September 12, 2004 03:09 PM
Well, we are struggling here in Hungary. The biggest backers of swpat are the Ministry of Justice and the Ministry of Foreign Affarirs - besides the Hungarinan Patent Office. As it turns out, there are two dinasties behind: Barandy and Ficsor.
Ficsor the elder worked in the Ministry of Justice and is an old friend of Barandy the elder. Ficsor the younger is in the Hungarian Patent Office and is the chairman of the Committee (EKTB) charged with the introduction of swpat in Hungary.
Barandy the younger is currently the Justice Minister and appointed Ficsor the younger to the Hungarian Patent Office. Ficsor the younger gave HPO money to the association of Barandy the elder.
Among other financial backers of Barandy the elder are: Microsoft, BSA and AOL Time Warner...
The sponsors of Barandy the elder (the minimum wage, ou SMIC in Hungary is 50 000 Ft):
BSA 10000 USD
AOL Time Warner 10000 EUR
ALAI centre 15000 EUR
Microsoft 20000 USD
HPO 2 920 000 Ft
Go and figure what the difference is between Democracy and the Middle-Ages.
Barandy the elder'a association backed by the above is named Magyar Szerzoi Jogi Fórum Egyesület: http://www.alai.hu
Hungarian Patent Office: http://www.hpo.hu
Government: http://www.meh.hu/english/government/members
Ficsor the elder worked in the Ministry of Justice and is an old friend of Barandy the elder. Ficsor the younger is in the Hungarian Patent Office and is the chairman of the Committee (EKTB) charged with the introduction of swpat in Hungary.
Barandy the younger is currently the Justice Minister and appointed Ficsor the younger to the Hungarian Patent Office. Ficsor the younger gave HPO money to the association of Barandy the elder.
Among other financial backers of Barandy the elder are: Microsoft, BSA and AOL Time Warner...
The sponsors of Barandy the elder (the minimum wage, ou SMIC in Hungary is 50 000 Ft):
BSA 10000 USD
AOL Time Warner 10000 EUR
ALAI centre 15000 EUR
Microsoft 20000 USD
HPO 2 920 000 Ft
Go and figure what the difference is between Democracy and the Middle-Ages.
Barandy the elder'a association backed by the above is named Magyar Szerzoi Jogi Fórum Egyesület: http://www.alai.hu
Hungarian Patent Office: http://www.hpo.hu
Government: http://www.meh.hu/english/government/members
The Economic Basis for fighting Software Patents
Posted by: Anonymous Coward on September 12, 2004 06:03 PM
You might be interested in this essay by Stanford Professor Mark Lemley. Lemley argues that the notion that intellectual property resembles real property "represents a fundamental misapplication of the economic theory of property.... the externalities in intellectual property are positive, not negative, and property theory offers little or no justification for internalizing positive externalities. Indeed, doing so is at odds with the logic and functioning of the market. From this core insight, I proceed to explain why free riding is desirable in intellectual property cases except in limited circumstances where curbing it is necessary to encourage creativity. I explain why economic theory demonstrates that too much protection is just as bad as not enough protection"
<A HREF="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=582602" title="ssrn.com">http://papers.ssrn.com/sol3/papers.cfm?abstract_i<nobr>d<wbr></nobr> =582602</a ssrn.com>
You can download the full paper in PDF from the bottom of the page.
<A HREF="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=582602" title="ssrn.com">http://papers.ssrn.com/sol3/papers.cfm?abstract_i<nobr>d<wbr></nobr> =582602</a ssrn.com>
You can download the full paper in PDF from the bottom of the page.
A good offense. The free software movement should apply for patents on methods used in its own source code.
When threatened with legal action for violation of a software patent, having a portfolio of our own patents would provide a means of defense. The company threatening us could be told to lay off, or we will search our own portfolio for patents that their software is using without a license.
IBM, Microsoft, Sun, et. al., use this defense themselves. For-profit vendors of software are in a constant state of violation of one anothers patents. None of them seek enforcement, because it is a situation of mutually assured destruction.
It is not logically inconsistent for the free software movement to oppose software patents and at the same time patent its own methods as a means of defense, so long as software patents continue to exist.
When threatened with legal action for violation of a software patent, having a portfolio of our own patents would provide a means of defense. The company threatening us could be told to lay off, or we will search our own portfolio for patents that their software is using without a license.
IBM, Microsoft, Sun, et. al., use this defense themselves. For-profit vendors of software are in a constant state of violation of one anothers patents. None of them seek enforcement, because it is a situation of mutually assured destruction.
It is not logically inconsistent for the free software movement to oppose software patents and at the same time patent its own methods as a means of defense, so long as software patents continue to exist.
There is no such thing as a defensive patent, it's an excuse used by patent proponents. The correct way to defend against frivilous patent claims is to change the system, everybody knows it's broken and you don't fix a broken system by paying money into it.
I'm sick to death of hearing the 'defensive patent' argument. If you want to start paying protection money to racketeers in order to publish your own work, don't expect any sympathy from me!
I'm sick to death of hearing the 'defensive patent' argument. If you want to start paying protection money to racketeers in order to publish your own work, don't expect any sympathy from me!
Oh well there you go sympathy will get you far to
fend off a court case. So will cheap talk about changing the system which the owners of the pantents
will just want there money back for supporting the
system. At this point the US goverment can't afford to change.
fend off a court case. So will cheap talk about changing the system which the owners of the pantents
will just want there money back for supporting the
system. At this point the US goverment can't afford to change.
A third tact on software 'patents' would be lobby for a software patent type 'right' with an exclusion clause for GPL compliency. Similar to the Australian plant breeders right. The potential outcome would be that software rights could still be levied over propiety software but strongly public commons software would not be inhibited. (Actually the contary, if using GPL was the only way ensure that the software was not violating some patent rights)
[RMS] Some of these mines are impossible to clear. Every software patent is harmful, and every software patent unjustly restricts how you use your computer, but not every software patent is legally invalid according to the patent system's criteria.
1) Why don't you argument the 'unjustly' part?
2) Is there no single example where you'd be able to see the good of a patent?
1) Why don't you argument the 'unjustly' part?
2) Is there no single example where you'd be able to see the good of a patent?
Dude, your first question makes no sense, and the second is answered already by lots of stuff he & others have already written.
Don't expect to be taken seriously, posting off-the-wall ignorance like that. Fake reasonableness is even more noxious than open insults.
Cheers<nobr> <wbr></nobr>:-)
Don't expect to be taken seriously, posting off-the-wall ignorance like that. Fake reasonableness is even more noxious than open insults.
Cheers<nobr> <wbr></nobr>:-)
they want to make us slaves? they want to make us think as they want? there are no forces to stop human when he/she want to get freedom, all the history proves the statement. they want to war? they'll get the War...
public domain database against patent database
Posted by: Anonymous Coward on September 20, 2004 03:58 PM
Hi,
I found in the text of R.S. the idea that anyone could help another :
" If you ask for the computer-using community's help in searching for prior
publication of the same idea, to use as evidence to overturn a patent, we
should all respond with whatever useful information we might have. "
I think it is worth building a huge database keeping the maximum "viewed before" ideas or "allready imagined and showed" ideas, in order to make the most "not new" objection against patent attempt.
The classification should follow the ones of the pattent offices
Just an idea (not for patent<nobr> <wbr></nobr>:-) )
Jacques Cuvillier
I found in the text of R.S. the idea that anyone could help another :
" If you ask for the computer-using community's help in searching for prior
publication of the same idea, to use as evidence to overturn a patent, we
should all respond with whatever useful information we might have. "
I think it is worth building a huge database keeping the maximum "viewed before" ideas or "allready imagined and showed" ideas, in order to make the most "not new" objection against patent attempt.
The classification should follow the ones of the pattent offices
Just an idea (not for patent<nobr> <wbr></nobr>:-) )
Jacques Cuvillier
patents will kill patents.
Posted by: Anonymous Coward on September 10, 2004 01:32 AM#