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JPEG Committee On The Ball, Seeks Prior Art 219

Posted by timothy
from the real-buccaneers-ride-patent-submarines dept.
Sangui5 writes: "It seems as if the JPEG Committee has noticed the recent patent fuss, and is working on the prior art angle. Good to know that even though there's a new standard, the committee is standing by their previous work."
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JPEG Committee On The Ball, Seeks Prior Art

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  • Good! (Score:5, Funny)

    by MaxVlast (103795) <maxim@[ ].to ['sla' in gap]> on Sunday July 21, 2002 @10:48PM (#3928058) Homepage
    The idea is just silly. Makes me want to go patent the Redbook standard and sue the RIAA.
    • Re:Good! (Score:5, Informative)

      by ukryule (186826) <slashdotNO@SPAMyule.org> on Monday July 22, 2002 @01:00AM (#3928423) Homepage
      The idea is just silly. Makes me want to go patent the Redbook standard and sue the RIAA.
      Funny you should mention that ... the CD Specification [bizland.com] is stuffed full of patents (mainly from Philips & Sony) which are due to expire in a year or so. I doubt you'll notice the couple of cent drop in price of a CD due to not having to pay the patent holders when they do expire though :-)

      The only recent time Philips has got upset with the RIAA was when they weren't sticking to the Redbook standard [slashdot.org]!
  • So how will this impact the whole GIF vs. PNG thing?
    • Re:Jpeg (Score:2, Informative)

      by mfos.org (471768)
      Not at all, the algorithims are from seperate families. GIF and PNG are lossless compression, while JPEG uses discreet cosine transform (lossy) I believe. I could be wrong however. As for having an open alternative to JPEG, I think JPEG2000 is supposed to fit the bill.
      • Re:Jpeg (Score:2, Informative)

        by stuuf (587464)
        JPEG cuts the image into 8x8 pixel blocks, then compresses them. JPEG2000 uses streaming wavelet compression that can decompress and increase resolution as the file is transferred. The current patent doesn't affect gif/png, but it might make someone think they can announce a patent on png just like Forgent did with jpg.
      • GIF is only lossless if you have less than 257 colors in your image. If you have a 24 (or even 16) bit color image, GIF's 'loss' occurs when you convert it down to 8 bits

        Once you've taken all of the colors out of the rainbow, you've got nothing left to lose.

    • Re:Jpeg (Score:2, Interesting)

      So how will this impact the whole GIF vs. PNG thing?

      GIF's continue to be bad; PNG's continue to be good

      Ignoring the philosophical reasons, PNG's are better:

      1. (In my experience) PNG's are smaller
      2. They support a variety of compression standards (see pngcrush [sourceforge.net])
      3. They support a larger number of colors. GIF's used a 8 bit palette; PNG's can do truecolor, greyscale or 8 bit palette
      4. They support animation (through the related MNG standard)
      5. They support transparency through alpha channels. Alpha channels are a very good thing that I could rant and rave about (but I won't ;)
      6. They support gamma correction
      7. They support more intelligent interlacing than GIF's
      See http://www.libpng.org/pub/png/pngintro.html [libpng.org] for more information, if you're so inclined.
  • by epicstruggle (311178) on Sunday July 21, 2002 @10:58PM (#3928093)
    Ahh, time to bust out with my prOn collection. As every /. reader knows the prOn industry has been at the bleeding edge of technology. :)
    Im sure some one has an image that can show prior art.

  • by MrHat (102062) on Sunday July 21, 2002 @10:59PM (#3928099)
    From the original "Forgent" Press Release:

    "We wanted to ensure the investment community and the general public are clear about the terms of our valuable JPEG data compression technology, one of the many technologies we have in our patent portfolio," stated Richard Snyder, chairman and chief executive officer at Forgent. "We are in ongoing discussions with other manufacturers of digital still cameras, printers, scanners and other products that use JPEG technology for licensing opportunities."

    I'm not sure I'd even praise the JPEG group for taking swift action - I'd say they're doing what's necessary to combat Forgent's crime. Doing their job as a standards body like an officer does his job as a member of the police. Read that press release again, and try not to grit your teeth.

    If you want my opinion (and I'm sure you don't), a company whose business plan involves sitting on a patent for eleven years, then springing back to life to collect, doesn't just need to be stopped. They need to be prosecuted - for a calculated conspiracy to defraud the general public and standards bodies.

    • Sorta like Rambus (Score:2, Interesting)

      by PingXao (153057)
      Didn't Rambus get slapped for this sort of trick? If I remember correctly, they held certain IP which they did not disclose during the standards meetings. Then they waited until lots of other companies were using those standards, which incorporated their IP. When the momentum was already strong, they attempted to collect absurd royalties, and let loose their legal dogs to pounce on anyone who didn't ante up. Sounds verrrrrryyyyyy familiar.
      • Nope (Score:5, Informative)

        by spacefrog (313816) on Monday July 22, 2002 @02:04AM (#3928635)
        Although it does smell a bit like Rambus, the situations aren't really similar at all.

        The big difference here is that Rambus was a member of the standards body in question (JEDEC). The agreement they signed to become a member of this standards body obligated them to disclose patents. They didn't and thus violated a contract.

        As far as I can tell, Forgent is not a member of the JPEG organization, nor did they ever propose to the JPEG body that they adopt their IP as a standard.

        The two situations may look similar on the surface, but that is where the similarities end.
        • Re:Nope (Score:5, Informative)

          by markmoss (301064) on Monday July 22, 2002 @02:40PM (#3931978)
          As far as I can tell, Forgent is not a member of the JPEG organization

          The last time Forgent's patent (actually Concurrent Labs) was discussed, one poster said that he had been involved with JPEG, and Concurrent Labs was a member in 1992-95 (IIRC). This patent was granted several years before CL joined JPEG. All the members, including CL, signed agreements to reveal all patents and applications related to the standards under discussion. CL never brought up this patent. This means one of three things:

          1) CL was in breach of their contract with the JPEG organization.

          2) CL reviewed this patent vs. JPEG's compression methods and decided it did not cover JPEG, so it didn't have to be brought up.

          3) The left hand didn't know what the right hand was doing - that is, their still-picture people on the JPEG project didn't even know about the video compression patent.

          When Forgent bought CL, they bought up their liabilities along with their assets. So they had better be arguing #3, because #2 is an admission that their suit is groundless as far as anything in the JPEG standard before 1995 goes, while with #1 JPEG can sue to be "made whole" by requiring Forgent to license it's patent(s) for free for JPEG applications. And I doubt that CL was ever big enough to make #3 very believable...
      • Sorta like Unisys (Score:3, Informative)

        by cout (4249)
        Perhaps a closer analogy is Unisys. For many years, GIF files were the thing to use. They were popular on Compuserve, then on local BBSes, and along with JPEG, became the image file format of choice on the web. After all of that, Unisys decided to take advantage over their LZW patent, and require a small royalty for any applications that used GIFs.

        It wasn't too much later that slashdot came around and posted a link to http://burnallgifs.org/. I wonder how long it will be until they post a link to http://burnalljpegs.org/.
        • Well, as long as no one has a patent on ASCII, I propose we just stick to ASCII art from now on. ;)

          Seriously, the user community should hold off on trying to mass migrate from JPG until a)we have a viable alternative (is JPEG2000 ready for mass adoption?) b)Forgent actually wins a case against someone for violating this patent.

          While I think patents on what amounts to math are ridiculous, I also think there needs to be some recognition that Forgent has forfeited its right to profit on this invention by waiting several years for the technology to spread into wide use. Forgent should have been filing C&Ds several years ago when JPGs were already all over Usenet (I remember seeing JPGs in 1995 at least). I realize this is patent and not trademark law, but had they tried to enforce these rights earlier probably an alternative to JPG would have been generated a lot sooner.

        • Closer, but not very. Unisys actually invented LZW and it was being used in GIFs. This patent covers a useless algorithm that the company is trying to claim covers JPEG. It does not.

          This is a nusance lawsuit. It has no merit.
    • "a company whose business plan involves sitting on a patent for eleven years, then springing back to life to collect, doesn't just need to be stopped. They need to be prosecuted"

      I agree. If it's not illegal yet, it should be. It doesn't even matter whether or not this particular patent is applicable to JPEG, this is yet another case of abuse of the patent law to do things that the law was not intended for. A big part of the problem is that fighting this nonsense required ridiculous amounts of time and money, making it really effective for the "plaintiff" even if they are not holding a valid and applicable patent. And that is just sad.

    • The so-called "doctrine of laches" is supposed to counter "submarine patents" like this. See http://tinyurl.com/pzt [tinyurl.com] and related documents.

      Of course, all of this requires large stacks of money to go to court. This is yet another example of why allowing software patents was such a big mistake in the U.S.

  • by NanoGator (522640) on Sunday July 21, 2002 @11:00PM (#3928105) Homepage Journal
    ... the Porn Industry is expected to hit a recession... heh :)
  • by ndnet (3243) on Sunday July 21, 2002 @11:06PM (#3928121)
    The JPEG Committee had to do this. So what if there is a new standard? Without securing the old one, who would adopt the new one.

    They could say two things:
    1) We've got a new standard. Just move every image on the web to it.
    2) This is absurd. We're going to fight this, but if all else fails, slowly adapt the new standard.

    At least now, with option number two, they maintain credibility, as they don't have unreasonable expectations.
    Also, a bit off-topic, but is there any real competition for a web photo-quality image format? PNG is an obvious GIF killer and is slightly entrenched (IE, has browser support), but JPEG2000 isn't as far as I know.

    • Every self-respecting standards body would be forced to do what JPEG is doing. Unfortunately, I think this signals a shift in the role of standards bodies. Perhaps the day is here when they no longer work on technical and industry cooperation, so much as they form an umbrella group to defend many manufacturers from patent lawsuits.

      The irony in this is that standards bodies are part of the Great Word Capitalism, which is the same general philosophy/entity that created frivolous lawsuits and absurd patents. At least the first group Forget (intentionally misspelled) contacted wasn't the developers of The Gimp or something.

  • by Tokerat (150341) on Sunday July 21, 2002 @11:08PM (#3928127) Journal
    Their patent describes a technique for digital video compression that uses some of the same mathematical techniques as JPEG, only their method requires more than one frame to be present to offer any significant compression (so I have been told).

    If that is true, that alone should be enough to tell Forgent to piss off.
    IANAL
    • You are 100% correct. They obtain an intermediate image between (delta between two different frames after motion compensation). Then, the DCT is applied to this delta, quantized, and the coefficients are encoded.

      The steps applied to the delta are the core of the JPEG compression. However, they are not mentioned in the list of claims in the patent! Further, the patent itself points out prior art on the use of DCT quantization.

      Basically, there is no way for this claim to stand, especially when it affects far too many people with deep pockets (possibly more important than the technical points).
      • This is exactly the type of answer I was looking for.

        Thank you, not only for the info, but for the peace of mind.

        *beer*
  • by Picass0 (147474) on Sunday July 21, 2002 @11:10PM (#3928129) Homepage Journal
    I know that in trademark law, if a company fails to vigorously enforce a trademark they lose claim to it. The effect of this is McDonald's sometimes sues a little family restarant called McDonald's and other strange insane lawsuits.

    Does this same thing not apply to patent law at all? A company has a patent, allows it to be deluted, and then goes after everybody. In trademark law, this would be thrown out of court.

    Now you could say "Trademarks and Patents are two different things" but they are really aren't. And so I'd like a laywer to explain to me WTF gives companies the right to broadside tech firms every few months with bullshit patent claims.
    • by seebs (15766) on Sunday July 21, 2002 @11:41PM (#3928228) Homepage
      Yes, they really *are* different. Maybe they shouldn't be, but they *are*.

      Be glad the IP laws are different - otherwise, the owners of books and movies *WOULD* be legally obliged to sue fanfic writers.
      • by g4dget (579145) on Monday July 22, 2002 @12:18AM (#3928323)
        Be glad the IP laws are different - otherwise, the owners of books and movies *WOULD* be legally obliged to sue fanfic writers.

        First of all, many claims against fan fiction are based on trademarks. However, if the trademarks are used in a non-commercial way, things get murky with regard to having to enforce the trademark.

        Second, I think it would be good if companies were required to enforce all of their IP claims quickly and fully. Then, writers of fan fiction would have clarity, and companies would be force to make a choice. Does company X want a thriving communities of fans, or do they want tight control of their "property"? Right now, they have people enhance the value of their property, but then they go after them when a buck is to be made.

        Strict enforcement of laws is good even if you disagree with the laws: it is only through strict enforcement that the general public sees why some laws don't make sense.

        • The problem is that, with the copyright cases, right now, the company can ignore the fanfic, without losing control of their property.

          If you force them to choose, they'll sue, because that's the only way to retain the copyright, without which they can't make their money - they're publishers, after all. If you allow them to politely ignore some instances of copyright violation, you get the best of both worlds.
    • "Now you could say "Trademarks and Patents are two different things" but they are really aren't."

      I think the reason why patent holders don't have to immediately prosecute is that patents are considered less readily visible than trademarks. For example, if another company opens a burger chain named "McDonalds", a lot of people are going to notice. If, on the other hand, a company infringes on McDonalds' (made up) patent for cooking a hamburger for 98.742 seconds, it might take awhile for it to become known.

      In short, it takes 30 seconds to find out what someone is publically calling themself, but it can take considerably longer to reverse engineer one of their products. IP protection/enforcement laws seem to reflect this disparity.

      That being said, I do think that something has to be done about people pulling the submarine patent non-sense. But I still think you'd be doing a disservice to treat this IP identically, as there are differences. Heck, even the length that the IP exists is different in both cases (as patents need to have a fixed life while trademarks should continue as long as the manufacturer makes the product; there's no compelling reason to suddenly declare that anyone can make a car called a Ford simply because it's been XX years since Ford began using the trademark).

    • Actually, there is a principle similar to that which you describe. Go Googling for 'laches' or 'law of laches' and you'll find the relevant material.

      If a patent holder is aware of infringing activity and doesn't do anything about it for a period of time (six years in the United States) then the infringer is not liable for damages.

      However, unlike a trademark, a patent does not lapse without enforcement. As soon as the patent holder does get around to notifying the infringing party, then they can start claiming damages from that point on.

      In other words, they can't sue every instance of 'infringement' that took place over the last fifteen years--they have forfeited that right. They may, however, demand royalties for further uses of JPEG compression. Assuming, of course, that their patent does cover the method in question, and that it holds up in court, and no prior art is found, and so forth...

      IANAL, YMMV.
    • Trademark and Patent are two very different things, used for two very different purposes.
      I suggest you go to uspto.gov and read up.
      You can loose a trademark from non-enforcment NOT a patent.
      A court can decide you can't collect any royalties on it, but you can't loose it.

  • They're calling apon all the old skool pr0n collectors?
  • Prior Art? (Score:5, Funny)

    by MattC413 (248620) <MattC413@NOspAm.hotmail.com> on Sunday July 21, 2002 @11:17PM (#3928156)
    So.. If they want prior art that pre-dates the patent in question, all we need to do is find, lurking in some deep and dark corner of the internet, some REALLY old JPEG compressed image, most likely pornography.

    Course, to prove that this file really was old, we'd have to find the subject and maybe pose them the same way to show it's the same person, and then.. uhh.. no, wait.. old person porn.. Eww!

    Please disregard!
    *opens wallet, prepares to just pay the stupid royalties*

    -Matt
  • by FelixCat (594769)
    I thought that JPEG was just a Fast Fourier Transform of the encoded data. How can patent this with so much history in the Mathematics literature?

    Crazy

    • It's actually a 2-dimensional DCT (discrete cosine transform), some quantization applied inequally (the low-frequency components are better represented; this is the lossy part), and then entropy-coded (Huffman or arithmetic, aka zip-like lossless compression) in a cool zig-zag fashion. Here's a quick, decent summary. [rasip.fer.hr]
  • by cout (4249) <curlypaul924@g[ ]l.com ['mai' in gap]> on Monday July 22, 2002 @12:12AM (#3928307) Homepage
    1) Patent 4,698,672 can be searched for at http://patft.uspto.gov/netahtml/srchnum.htm. The URL is too long to paste here.

    2) The jpeg.org page seems to indicate that the patent only affects the baseline implementation of JPEG. If this is true, then it should be possible to write a new baseline implementation that doesn't infringe on the patent.

    3) I'm curious what prior art will show up. In 1986, many people were still using BSAVE/BLOAD to store images.
    • 3) I'm curious what prior art will show up. In 1986, many people were still using BSAVE/BLOAD to store images.
      If it's just the run-length-encoding, there should be plenty of prior art. I know that Amiga's IFF ILBM picture format used RLE compression and that was certainly developed prior to 1986.
      • The "run length codes" mentioned in the patent appears to be quite different from "run length encoding" (RLE). Not being an expert in compression (I've only dabbled), I can only say that it has something to do with huffman codes, which are key to JPEG. RLE is different, often results in a larger size than the original file, and afaik is not used in JPEG.
    • The URL is too long to paste here.

      Whoo, what a long link [uspto.gov]!
    • The jpeg.org page seems to indicate that the patent only affects the baseline implementation of JPEG. If this is true, then it should be possible to write a new baseline implementation that doesn't infringe on the patent.

      Uhh, baseline is already supposed to be the minimal implementation. Anything that implements JPEG at all has to implement at least the same features as baseline. The only ways to redo baseline to remove the parts Forgent feels it owns would be to move to arithmatic coding. Arithmatic coding is part of the JPEG spec, but not baseline, because there's more patents surrounding arithmatic coding than slimy lawyers to sue over them.

      You could change the spec to move to a totally new type of coding, but then it wouldn't be JPEG anymore.

  • If the patent was filed in 1986, then it will expire in 2003, 17 years later. Please remember that the underlying problem with patents is bad legislation.
    • Actually it will expire in 2006, 20 years later, as per US title 35 sec 154 [cornell.edu], which took effect June 8, 1995.
      • by tlambert (566799) on Monday July 22, 2002 @01:14AM (#3928448)
        Actually, it'll expire 17 years from date of issue, since it is grandfathered as a submerged patent filing. In other words, it's governed by the old rules because it was filed under the old rules.

        Patents files on or after June 8 1995 are 20 years from date of filing; before that, patents were from date of issue, not of filing, and their term was 7 or 14 years, and grew to 17. One of the reasons for the change to a 20 year term was the move to date of filing as the baseline date.

        Either way, it's too damn long a period for this industry.

        -- Terry
  • This is the second major IP bombshell to hit the computing community in the last few weeks. First, the implied threat of M$ playing the patent card with their acquisition of an openGL patent, and now this. This seems to be new tactic among greedy corporations which involves seeking out widely used patents whose owners have allowed free use by non-commercial entities, purchasing the patent, and then announcing new restrictions in a effort to cash in on it's popularity.

    It seems to me that a patent that has been released into the public domain (at least for non-commercial use) should remain so if and when the patent is sold. I don't believe that there is any law requiring this, but anyone selling an 'open patent' should include a requirement that it remain open as terms of the sale to avoid this very situation.

    It would be interesting to see what would happen if someone should decide to challenge a patent that was open only to be closed at a later date. Think about the series of events: Group A invents an image compression algorithm and grants me license to use the patent free of charge. I develop a group of products based on this agreement. Everything is cool until Group B buys the patent and says I can't use the patent anymore (or worse, demands back royalties). But wait, my products were based on a agreement I had with Group A, not Group B. Group B came in after the original agreement and is trying to change the terms of my agreement with Group A after I've executed the agreement. I would argue that Group B would be compelled to honor any agreements that Group A had in force at the time of the purchase as part of the package of buying the patent.

    ===
    All your patents are belong to us.

  • What the JPEG Committee is proposing is a general 'prior art database' which should be generally useful for any image related dispute. This is a 'good thing'(tm) whether anyone is currently trying to claim JPEG prior-art or not. The current patent process desperately needs quick and easy ways to search for prior art.

    To see why, consider the standard process for creating a patent in a large company:
    1. You write up an overview of the patent, and submit it. Presumably you know your field, so the first 'prior art filter' is you - have you heard of anything similar?
    2. You hand it over to your companies patent agent. (S)he will probably be assigned to a particular field (e.g. 'audio/video/image processing'), so understands the area, but is not going to be an expert.
    3. The patent agent reads through your explanation and does a prior art search - and returns to you a selection of things that may be relevant.
    4. You explain how your invention is novel compared to these. If you convince him, then the wheels are set in motion, and your company (eventually) submits a patent application.
    5. The Patent Office reads it and searches for prior art. If they find none, your patent is granted, while if they find something, then it is up to you/your company to dispute their findings.
    So, in steps 3 & 5 you have legal experts who understand the area, but are probably not technically expert in the exact field of the patent who have a responsibility to search for prior art. They are also under time pressure, as they have loads of proposals to deal with. So what they do is pull out a few relevant keywords from the proposal and search on them in some prior-art database.

    The most obvious (and easy) database is the existing patents DB. Now, I'm sure they have other databases they use, but whenever I've been through the process, nearly all the potential prior art which has been returned to me via the patent agent has been previously published patents. So if an idea hasn't been patented before, then it's got a good chance of getting accepted as a new patent.

    So if the JPEG group build an extensive, easily searchable catalogue of prior art (with times, keywords, etc.), then it will make the patent agents life a lot easier, thus increasing the quality of patents.

    • Computers are not magical beings, capable of exercising judgement.

      The problem is that the default for patent applications, since the PTO reform of several years ago, is "granted".

      It should be *harder*, not easier, to prove lack of prior art. The failure of a database query hardly constitutes "lack of prior art". It also does noting with regard to the uniqueness or obviousness provisions.

      Your suggested database would result in *more*, not *fewer* bogus patents being granted, because it would accelerate the application process without adding any protection above and beyond what's already there.

      -- Terry
      • It should be *harder*, not easier, to prove lack of prior art.
        You've got it the wrong way round. The Patent Office does not prove lack of prior art, it proves prior art. What I would say is "It should be *easier*, not harder, to prove prior art."
        The failure of a database query hardly constitutes "lack of prior art"
        That is exactly what happens in practise. A patent agent has a few hours to understand the patent in front of him, search for prior art, compare all the prior art he finds to the proposal, and then justify rejecting/accepting it.
        There is no way they are going to go trawling through archived usenet postings/search the web for detailled date-stamped documentation for every case. They *need* an easy way to search for something to compare the proposal against.
        Your suggested database would result in *more*, not *fewer* bogus patents being granted, because it would accelerate the application process without adding any protection above and beyond what's already there.
        I'm not suggesting that the time/patent is decreased - simply that the patent agent has more powerful tools to prove the (in)validity of a patent in that time. That has got to be a good thing.
        • How will a database fix things?

          Even if it's "the bestest database ever", it still has to be searched by humans with a sufficient understanding of the practice of the art to select appropriate search terms, by way of a common lexicography with the filing mechanism which was used to load the "magic database".

          In other words, why is the problem ammenable to a fractional technical answer, in your opinion?

          I really don't understand what a database will do, other than identify what has or has not been patented previously -- and therefore, it will not contain anything which would otherwise fail the obviousness test, since such things are not patentable.

          Also, FWIW: In the U.S., they are called "patent examiners", not "agents", and the filer bears the brunt of the search for prior art, in a seperate process called a "patent search". It's not up to individual examiners to prove that something was not patented previously.

          The only thing your database does is make it easier to file patents by making it easier for the non-patent-office-personnel to do their searches.

          In other words, the suggested database does not address any of the process issues that are the root of the problem in the first place.

          If you want to dicuss fixes... fine. But creation of a database is not a fix, it's just a means of exacerbating the problem.

          -- Terry
          • The fundamental problem is that patent examiners look primarily at the database of existing patents. There is no way that someone who is not actually working in an industry could be expected to keep up with all the relevant publications and products, so they have to depend on what has been indexed into a database - and for most technology, the patent database is fairly inclusive. This doesn't work for software; many basic algorithms were developed before software could be patented, also many programmers are rather anti-IP and would rather place their new algorithms in the public domain by simply making them public. (It is of course quite possible to get a patent and make it public domain - the USPTO even has a special patent form for this - but few people want to go throught the paperwork.)

            This works legally, but not practically; because the patent office is unaware of what is not in their database, they are quite likely to grant a patent on ideas which an expert _working_ in the field would recognize as not new. Most notoriously, the Australian patent office granted a patent on the wheel; yep, there have been no prior patents on the wheel, even though there's 5,000 years of prior art. I am not sure if that patent examiner was remarkably stupid or went along with the joke, but fields where the existing technology is less well known (image compression software, for instance), it will certainly always be possible to slide public domain ideas by the examiners as long as they do not have a database of public ideas that is as well indexed as their patent database.

            Of course, if there was prior art, you can always go to court and invalidate a patent. The problem is that once the PO signed off on it, the courts consider the patent valid until proved otherwise. If you have unquestionable evidence of prior art (e.g., the patent description is copied right out of Knuth), it's still very expensive and takes years to get to present it in court. If the equivalence between the prior art and the patent claims is murky - and it usually is, because people filing questionable patents never use the normal industry terms to describe their "invention" - it's going to be a long, expensive court case, with the outcome depending on whether the judge and jury manage to comprehend the issues. Or it might be quite difficult to prove that the shareware source code you are presenting as prior art actually dates from 1980. And after you go through all this and win, in the US usually you can't get your legal costs back from the company asserting the bogus patent.

            You can recover your costs and more if you can prove it was truly fraudulently filed - but that's one reason the filers use odd jargon, so at worst they can claim they invented the algorithm independently and never saw the writeup of it in "Proceedings of the ACM".

            The "odd jargon" issue will limit the usefulness of database searches, but still there is a much better chance of finding non-patented prior art if the examiner has a database of non-patented art to search than if he only searches the patents... If a patent has to be taken to court, a database of public domain source code and algorithms would make it easier to find the prior art, provide proof of the original date, and make it more difficult to file and assert bogus patents without being found liable for fraud.

            Given the patent office's recent record of errors exceeding even the norm for government agencies, I would recommend a different approach. Reduce the role of the patent office from approving patents to merely recording patent forms in a public database; putting the forms in the database does not imply that it's a good patent. This database will include both patents and public-domain ideas. Patents require a filing fee sufficient to cover the PO's expenses, but there is no fee to post an idea to be free to the public (if it doesn't infringe on prior patents).

            Along with the forms and filing fee, the inventor has to send a $20,000 bond to pay off anyone who successfully challenges the patent within the first three years. As soon as the forms are posted to the database, the inventor or agents can start asking anyone else using the idea to stop or pay royalties. But anyone can also challenge the patent, whether or not they are in infringement.

            And we need a special, technologically sophisticated, court to rule on patent issues. That is, you need judges with degrees in engineering or science as well as in law. The initial challenge requires a brief summary hearing before a judge, with an informal presentation of evidence. (Brief and informal so that $20K bond will be sufficient.) If the patent is less than 3 years old and has not been previously upheld by a court, there is a presumption _against_ the patent - that is, the inventor must present a preponderance of evidence to uphold the patent. If the inventor withdraws the patent or the judge rules against the patent at this point, the challenger gets reasonable and necessary expenses plus a $5K profit, or $10K if the prior art was in the database before the patent was filed. The inventor does have a motive to withdraw if he's likely to lose, because the longer the proceedings go on, the more he'll pay. If the challenger loses, he does not have to pay the inventor's expenses; defending the patent once at a summary judgement is just a normal expense of getting the patent.

            All prior art presented to the court goes into the patent and public ideas database. If the patent is invalidated, it stays in the database - marked as invalid, with the court ruling given, and so anything in it that wasn't in a prior patent becomes public-domain.

            The loser in the summary judgement can request another hearing before a 3-judge panel, or request a full jury trial - but in either case he has to pay the court costs and the other side's expenses until the final judgement. In jury trials, the jury pool will be working scientists and engineers, and be paid appropriately, so this gets rather expensive... The court will have to power to assess costs and the winner's legal expenses against the loser, and to fine either party if egregious behavior such as knowingly filing falsely is revealed during the trial.
        • There is no way they are going to go trawling through archived usenet postings/search the web for detailled date-stamped documentation for every case. They *need* an easy way to search for something to compare the proposal against.

          The simple way to fix this is for the patent applications to be published shortly after being submitted. The public could then have six months to submit proof of prior art to the patent examiner.
  • .. And was rejected. The exact story, and I posted it because we were in committee discussing it. Someone else posts it, and it's news? I really thought that whomever arbitrates this, was interested in content, not in particular authors. changes my idea of how this forum works. Bit more elitist than I thought.
    • They did this to personally slight you. Ignore that there are several different people working on a backend where (litterally) thousands of stories are entered by hopeful posters every day. The major first step in this is the quick scan of titles, where they just tick off any titles which seem like confused or bad posts. Then they have to sivv through all the remaining ones, edit (which they don't really do well here at /.), and post. They do this all day, most days. But ignore that and assume they did it just because they don't like you.

      Now come back to reality. They do not have a personal "out to get warpedrive" cabal meeting every week, nor did they reject your story because of any reason other than they just rejected it. Things which are bad in the world happen because they do, not because someone or something is out to get you. HTH. HAND.
  • by elliot_leonard (594890) on Monday July 22, 2002 @03:44AM (#3928890)
    If software patents become widespread, I can easily imagine a situation where one violates 100 patents just to write an extremely trivial program. Computer software is a very evolutionary art form. Every program written owes a large debt to previous developments. We are fortunate that up until recently, almost all software innovation was done in a climate largely free of patents. I sometimes wonder what things would be like if Apple had won its patent fight with Microsoft over Windows.

    I used to write software for a very large corporation. We were frequently encouraged to file patents for anything that we invented. We were rewarded even if our patent application was rejected. A successful patent application was a big deal. The corporation was quite sensibly trying to build up its portfolio of patents.

    Eventually, you may have to work for some big corporation to write software. Only someone with a big software patent portfolio will be in a position to cross license with the other big players and thereby receive legal permission to use a basic set of key patents. I expressed this concern to a lawyer at Unisys, and his response was basically 'So what?'. He said that he thought that this had already happened in the chemical industry.

    I guess that I was something of a crackpot to voice these views inside the big corporation where I worked. It was very encouraging to find out that the folks at the League for Programming Freedom(http://lpf.ai.mit.edu) share my reservations about software patents.

  • by brunes69 (86786) <slashdot@@@keirstead...org> on Monday July 22, 2002 @06:48AM (#3929206) Homepage

    Hire Google to overhaul the USPTO prior art database.

  • I'd scorch the heiney of the moron who allowed this drivel so totally that the closest he'd get to papents again is shining shoes.

    I think that the patent office should go back to being a not-for-profit organization or government departement, ASAP.

    This was a STUPID idea from the get go.
  • ...the JPEG committee hope to have it in place prior to their next meeting in Shanghai...

    Oh no! They've been shanghai'd!

    (incoming rotten tomatoes in 3... 2... 1...)

If Machiavelli were a hacker, he'd have worked for the CSSG. -- Phil Lapsley

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