Open Source Patent Donations?

patspam writes "As a software engineer I come up with patentable ideas every now and then, ideas which I'm not interested in pursuing myself but which I'd like to keep out of the hands of private entities/patent trolls in my own personal effort to defeat software patents. Should I patent the ideas and donate them to some sort of open source foundation? Or just blog about the ideas so that the 'prior art' exists in the public domain? What's your strategy for fighting against restrictive software patents?"

Re:BEWARE THE LINK

[IBBoard]

I realised after posting that it would appear as a post with no obvious parent and I should have been clearer. The "beware" is for the GP comment, not the summary (noticed the "parent" link under my comment ;) )

Some considerations

[kanweg]

Publishing is a fine way to create prior art, effectively inhibiting any further patents for that very idea. However, make sure you add as much detail as possible to give a patent attorney as little leeway as possible.

If you blog it, the content may get lost. Is it possible for you to (crudely) implement your ideas and put that code on sourceforge or some other repository, together with a description. In the comments of the code you can elaborate on things not implemented. In such a repository, the ideas may be longer lived, and more people may see it (and if necessary bring it to the attention of a patent office).

Bert
Patent agent

Re:As far as US is concerned

[mavenguy]

This is a common misconception. This will not defeat someone else who conceives and files for a patent later in the US. From 35 USC 102 [cornell.edu]:

A person shall be entitled to a patent unless--
...
(g)(2) before such person's invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other. (Emphasis added)

You need to actively work on it and have reduced it to practice (the latter which is satisfied by filing a patent application). Your triumphant opening of the envelope might garner you bragging rights, but no destructive effect on the patent rights of others.

Re:As far as US is concerned

[IAmGarethAdams]

Unfortunately however, this is unlikely to be admissible [snopes.com] in any serious context.

Most postal services have absolutely no problem with letting you send an empty, open envelope to yourself; after which you have an open, registered and dated empty envelope which you can later fill with a pre-dated proof of invention and seal.

Worthless advice, here's why.

[Yoozer]

Moreover, also write the idea, go to post office and mail it (sealed) to yourself (and may be also another one to your trusted legal advisor) by registered mail.

Do not do this. See http://www.copyrightauthority.com/poor-mans-copyright/ [copyrightauthority.com]
This trick works with anything else, too, so it worthless advice.

Re:Patent Commons vs Prior Art

[JavaRob]

How much does it cost to submit a patent? From what I understand, the legal documents are extremely complicated (so you need a lawyer) and the total cost will be somewhere from $5K up to $25K and possibly beyond depending on the complexity of the thing you're patenting (though the higher numbers will only come into play for highly-complex physical devices).

I absolutely agree that a donated patent can be quite useful -- but keep in mind that it's a sizable donation that *might* be valueless if there's some prior art you didn't find in your search.

The prior art approach seems like the way to go for most of us. It sounds like [wikipedia.org] you just need to publish the idea with enough detail that someone could implement it, to qualify as prior art:

In most patent systems, in order to anticipate a claim, prior art is expected to provide a description sufficient to inform the average worker in the field (or the person skilled in the art) of some subject matter falling within the scope of the claim. Prior art must be available in some way to the public, and many countries require the information to be recorded in a fixed form somehow.

A blog would seem to qualify; any way to more reliably prove the date of publication? Get it into the wayback machine [archive.org], maybe?

Re:Creating "Prior Art."

[ortholattice]

To establish prior art you need to publish. The problem is that magazines and journals are fairly selective about content because they have to pay or the content has to fit their market or be interesting in some way. Then there is credibility, if you write an article about recommendations or motor control methodology, something you've done as a hobby project, a magazine or journal may not choose to publish because it can not properly verify the content.

This is highly dependent on the journal. In the case of trade journals, a lot of them are actually dying for "real" articles buried in their mass of ads, and ads thinly disguised as articles, to attract readership. In the past I have submitted many "test cases" to a trade rag on electronics test and all of them were published without question. In some cases they were patentable ideas I specifically wanted to make public domain, because it wasn't worth it to me to go through the patent expense but I also didn't want to be prevented from using them in the future. As a side effect I became well-known in the field, very helpful for my consulting work.

On the other hand, I have submitted a couple of ideas to the "Design Ideas" section of EDN magazine. Both were rejected, even though I thought they were reasonable. I think the problem there is simply that the column is very popular and they have more submissions than they can publish, so it depends on the whim of the editor that day.

Anyway it depends on the journal. I guess my point is that if you're going to write it up anyway, might as well submit it and see what happens, doesn't cost anything. If it does get published, you'll make a name for yourself and have something for your CV, as well as establishing prior art. For best results find a little known or start-up trade rag in the field that's 90% ads. And if it doesn't get published, you'll still have your write-up for some on-line thing as you suggested.

Publish it as a patent application

[Woodpeckeruk]

The best way to ensure that i) it is published; ii) that it will be available for patent searching in perpetuity; and iii) you don't have to spend too much money, is to write it all down in detail and send it to a patent office as an application. Provided you pay the initial filing fees, all patent applications are published. You can speed up publication by specifically requesting it, rather than waiting for 18 months. As an example (since I am a UK patent attorney), what I would recommend is filing an application consisting of pretty much anything at all, paying the £100 fee and then letting the application lapse after publication. Even easier than that, simply post your invention disclosure to the UK-IPO, Newport, Gwent, UK including the words "I would like to apply for a patent for the following", making sure to include some contact details, and the UK-IPO will let you know what else they need.

If I remember right, the US has a similar 'defensive' patent system for doing precisely this, but I would rather leave the details to someone else.

Re:publish

[asdjlfhgas]

Who modded this up? Publishing on the internet does count as prior art, if it is accessible via archive.org or is dated such that there is generally no reason to believe it was backdated. A dated comment on slashdot.org would constitute prior art as there is the presumption that the date was not altered for deceptive intent. It may be more transient over the course of decades as opposed to an actual publication, but it certainly would be usable as prior art if found.

Ban this troll, and some other advice!

[greginterrupted]

Can the moderators look up this troll's IP address and ban it? Or even the range of IPs? We have all seen these nimp.org links on Slashdot for several days at least, and it is annoying. I hate to give the troll attention by posting this but we should be able to ban this hater from Slashdot with minimal effort. I would hate to think that it is a dupe account of a meaningful poster, but we can take that chance given the content that the troll is posting as Anonymous Coward.

I fell for the link in Firefox and their popup blocker didn't catch it, even though I'm running the latest version and I have auto-updates turned on. Good thing my speakers were turned off.

If it hits you:

1. It's easy enough to hit ctrl-alt-delete and bring up task manager to close the instance of your web browser if you run windows.
2. If you run linux you're probably knowledgeable enough to do a kill or kill -9.
3. The design of the nimp.org link actually helps you to close all of the web browser windows that pop up. The default behavior of windows is to "group similar taskbar buttons" together. You may have noticed this from the old tabless-web browsing when you had many instances of (gasp) IE or another browser open. Windows would annoyingly consolidate all of the windows into a single button on the taskbar. To switch between windows, you needed to click on the button and a drop-down menu would appear. So the nice thing about this grouping is that after enough nimp.org browser windows show up, windows consolidates them, and you can simply right click on the one button that represents the dozens of web browser windows. Select 'close' from the drop down menu and you're good. In fact, I keep the "group similar taskbar buttons" feature turned on just for trolls like the AC who posts the NIMP links. That, and tabbed browsing lets me run only one instance of a web browser instead of running one instance for each open web page. If you want to change the behavior, right click on the taskbar and select properties, and you'll see a menu with the 'group similar taskbar buttons' checkbox.

Just wanted to bring some attention to this instead of sweeping it under the rug, and also wanted to provide advice on how to close your browser easily if it hits you.

open source patent pools and patent agents

[j0nb0y]

I've seen some discussion on /. of creating open source patent pools to protect open source projects from patent infringement.

I want to point out to everyone thinking about such a thing that you *do* *not* have to go to law school and become an attorney to file prepare/file/prosecute patent applications. All you have to do is pass the patent bar exam.

A law degree is not required to sit for the patent bar exam. All you need is a technical background (which most /.ers have). There are a list of degrees that will automatically qualify you to sit for the patent bar. Included are various engineering and science degrees. Computer Science is included, but to automatically qualify, the school had to have had a certain accreditation at the time you graduated. You can also qualify with *any* computer science degree under category b option iv, but that requires a transcript along with course descriptions for 40 credits worth of qualifying courses.

If open source projects want to start filing a lot of patent applications, then having a project member become a patent agent would be a good idea.

I'm a first year law student, and I'm planning on taking the patent bar this summer.

There is a better way

[Jane Q. Public]

to stop software patent trolls: fight the entire concept of software patentability.

Software is properly part of the domain of copyrights, not patents. The very idea of patenting software is an abomination.

Just Say No.

IBM defensively published for 50 years;

[davidwr]

IBM Technical Disclosure Bulletin [wikipedia.org].

IP.COM [ip.com] provides a way for you to publish your own work and add it to their searchable prior art database.

You may also be interested in the Patent Commons [patentcommons.org].

Provisional Patents

[Anonymous Coward]

Provisional Patents are the answer.

They only cost around 100 or 150 $ and they permit you to take a year to file the full patent. In the meantime, they represent prior art *in* the patent system, so no one else can patent that.

In a year's time, you still don't have to patent your idea, but the prior art stays there as a record that you at least thought it up back then...

Are you employed by someone?

[timothyf]

Better make sure your contract doesn't say anything about the company owning inventions that you come up with while you're employed by them. Bottom line, talk to a lawyer, not Slashdot.

Re:Publish it as a patent application

[theantipop]

This is the best answer so far in regards to the actual question. If you want your idea to be used as a defensive measure against future patents, you want it to get the most coverage by the examiners who will be searching. Previously published patents and patent applications are, with few exceptions, the primary source and the major focus in the course of the search of an examiner.

You may think publishing it somewhere on the internet will be good enough until you realize it's not feasible to search every whackjob blog out there for claim language that you probably haven't reproduced. Also, archive.org doesn't actually archive a lot of these small, personal websites so it would be very difficult to reliably date the material.

Your employee probably already owns your ideas

[jpswensen]

As for whether you own your own ideas or not, many companies make you sign away patent right for anything you come up with (while working for them, whether on the job or not) that is related to their business interests. Sometimes very skilled or well-known people can weasle their way out of clauses like this, but for the most part you probably signed away your right to patent tech stuff when you signed you offer acceptance letter. go read it.

Re:As far as US is concerned

[beavioso]

IANAL, but I think you're trying to say that if this person writes it down in a journal, or a blog, that this person will not be able to stop someone from patenting it.

If that's what you're asserting, then you're wrong. There's a court case about prior art, which ruled something to the effect that prior art is anything that is accessible by the public (i.e. a PhD dissertation available through a public university library only needs to be available for access, and you do not need to prove that someone actually looked at it or read it after it's been cataloged). Once an examiner finds a reference with a varifiable date that predates a filing by one year, then 35 USC 102(b) is used and it creates a bar for patenting (e.g. the person seeking a patent cannot swear back and come up with evidence that they in fact invented more than one year ago).

In the end, I'm almost positive that blogs can be used as evidence, especially if they provide enough detail and motivation to do something. It might even be best to let archive.org to archive your blog, so that the dates have a second varifiable date attached to it.

Now, if all you meant to address, was that a person cannot get a patent after abandoning, suppressing, or concealing the subject matter, then that is correct. But, I haven't heard of many 102(g)(2) rejections.

Re:Those solutions wont work

[Woodpeckeruk]

Perhaps you should count yourself in amongst those people who still don't understand. The vast majority of patent applications describe inventions that have not been made. There is no legal requirement to 'make' the invention (the US abolished theirs over 100 years ago), only a requirement to describe it sufficiently to allow a person skilled in the art to make it. Software inventions are treated just the same as any other invention. If, as a programmer, someone gave you a really good idea about how to do X on a computer, would they need to tell you the exact code to enable you to do it? The other side of patents works the same way: provided a prior disclosure is 'enabling', it will prevent someone later on getting a patent for the invention.

Re:As far as US is concerned

[greensoap]

First off ---- I am not a lawyer. The information contained within should not be relied upon. If you are in need of legal counsel, please seek out a licensed attorney in your state. I do not intend to create an attorney/client relationship with any reader. I am just a law student and I am not qualified to provide legal advice, but hopefully I know a little more than the average joe.

The parent is flat out wrong. The USPTO, or a court, can use a publication under 102(b) or 102(e) to show that an invention is not novel. Regardless of the status of the a patent on the prior art. 102(g) is related to if an inventor is trying to get a patent on his invention, not whether a publication can be used against another as prior art.

Perhaps I should explain. If there exists a publication describing the subject of a patent application and that publication was published more than one year prior to the application (also applies to if the subject of the patent was in public use in the US or for sale in the US), it is an absolute bar to the patent. 35 USC Section 102(b).

Blogging about an invention is a publication and can be used to destroy novelty for further inventors. The problem is that the USPTO is less likely to find your art than if it is an issued patent or an application.

If the As a suggestion to the original post, maybe a provisional application would meet your desire:
http://www.uspto.gov/web/offices/pac/provapp.htm [uspto.gov]

Provisional applications are published after 18 months, and if the application matures into an issued patent, it will count as art from the day it was filed. You still have to meet some of the more stringent requirements though, so this may not be the right solution. Also, if you don't intend to get a patent on the idea, it is better to publish something as well as file the provisional. That way there is a publication farther back in time than just the publication of the application that will never mature into an issued patent.

But as I said before, the parent is wrong and misunderstands the import of 102(g). The designation of informative on that post is misplaced.