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Xiph.org Comments For the FTC's Patents Workshop 65

Posted by Soulskill from the please-consult-a-patent-attorney dept.
Freddybear writes "Xiph.org, makers of ogg audio and theora video codecs, submitted a detailed proposal to the FTC for the patents workshop. Their proposal recommends changes which would help to eliminate the practice of 'submarine' patents regarding standardized technologies. Quoting: 'The Xiph.Org Foundation recommends that the FTC work to require specific, ex ante disclosure of patents or patent applications that would read on standards under development, that failure to disclose exhaust the patent, and assertion of such a patent ex post be deemed anti-competitive. This should apply not only to standards development activities that the patent holder participates in or knows about, but those it should have known about. Furthermore, vague infringement allegations or activities designed to avoid an SSO's disclosure requirements or undermine the standards process should also be deemed anti-competitive.'"
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Xiph.org Comments For the FTC's Patents Workshop More

Xiph.org Comments For the FTC's Patents Workshop

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  • I wish to support this submission (Score:4, Insightful)

    by Anonymous Coward on Sunday June 19, 2011 @01:43AM (#36489582)

    I would like to add my name to a list of people who support this submission.
    Does such a list exist?

  • Thank you xiph.org (Score:5, Insightful)

    by jhoegl ( 638955 ) on Sunday June 19, 2011 @01:54AM (#36489612)
    I appreciate the time spent by xiph.org to think about and put together the information. Unfortunately I know little about patent processes, but I know that patents have been a major concern and pain, because one can, through no fault of their own, create a "method" like something that had been patented.
    I also know that there are many patent troll companies out there and they need to be taken care of, regardless of how much the government thinks it brings in on fees during these processes.
    I understand parts of what was said, and found nothing that I can disagree with. Although I would rather they do away with software patents completely, in our reality that will not be the likely case.
    Thanks xiph.org.

    • Re: (Score:2)

      by Hylandr ( 813770 )

      Yea I was gonna say, my head hurt reading that one. Legalese dulls the brain cannon...

      - Dan.

      • Re: (Score:3, Interesting)

        by bzipitidoo ( 647217 )

        I read it. Yes, it's complicated.

        Xiph chose to focus on a small part of the problem: how patents make it hard to create standards. They gave a number of examples and scenarios. Then they suggest a few small reforms that may help a little bit. Rather than advocate against the patenting of software, they aim for more modest changes that they hope make it impossible to hold a standard hostage years later with submarine patents. Surface immediately, or lose all right to challenge the standard.

        Is Xiph'

      • Tis simple. All the guys at xiph are asking is

        If you are writing a standard, register it so patent holders can check their patents against it.
        If you are a patent holder, check what standards are being penned in your patents field and inform the standards body quickly which patents this standard may affect.
        Failure to do either of the above should result in a nullifying of your standard/patent on principal.

  • Congratulation to a great initiative and a good effort to take at least standards out of the subject matter to be patented.
    This would bring huge advantages to the end-user, inclusive the latter's purse.
    And it would open up all standards to be beautifully implemented by Free and Open Source coders - and maybe more beautifully than by coders of proprietary software.
    My concern is about the legal term should have known . Not that I mind this term being applied, though once introduced it would apply to all sid

    • Re: (Score:1)

      by Anonymous Coward

      But John D. coding Free Software in his parents basement?

      Let's not feel too sorry for the basement guy. You're trying to make him sound too poor to get his own place, and yet you're also talking about a situation where he paid many thousands of dollars for both the patent fee, and also to hire a lawyer (or similar expert) to find all the relevant prior art. I think the guy can afford a few minutes to Google and learn whether or there are standards development in the works. Tip: if everybody has been talk

    • This doesn't affect the eccentric inventor working in his basement. It is about STANDARDS. Standards are created by large companies not individuals. The work of an individual CAN become a standard but how can an individual submarine patent his own patent? No, this only affects those standards created by multiple companies where one party seeks to contribute something that later turns out it has patended. The individual could only be affected if they deliberately create a new thing, seek to make it a standar

      • Re: (Score:2)

        by udippel ( 562132 )

        So far on submarining. If I understand it correctly. What's the term for a straightforward attack? An offensive? Like I invent something today, file tomorrow, and (with the world-wide 18 months between priority date and first publication) I take all efforts to include it into a standard, and - voila - miraculously when ISO09876 is out, it so happens that it is encumbered?
        This doesn't fall under the terms specified, because nobody in the world will know the invisible patent. This is not some "now we have a s

  • I feel the following quotation asks some important questions that should be considered when making decisions that affect a group of people: "What assumptions about human nature and social organization underlie adversarial patterns of deliberation and decision making (e.g. debate, propaganda, partisanship, etc.)? What views of human nature give rise to mutualistic, reciprocal and cooperative patterns of deliberation and decision-making? How can we foster deliberative processes that encourage freedom of expr

    • Re: (Score:2)

      by Rennt ( 582550 )
      Odd. For me the above quotation only invokes another question: "English motherfucker, do you speak it?!"
  • I think there should be a rule that if any change whatsoever is made to the patent, the date of the modification becomes the new patent filing date.

    • Re: (Score:2)

      by waddgodd ( 34934 )

      You realize that means that you can make the Immortal Patent pretty trivially then? Make a trivial edit, such as 'change the third "the" to an "a" ', at the 39 year and 360 day mark, get a new forty years.

      • Currently a continuation or divisional application will enjoy the filing date of the application of which it is a continuation or divisional. This means any tiny improvement enjoys the protection of the original.

        Xiph.org suggests that a continuation has as its own filing date. This means that there also is more prior art available, which potentially invalidates the patent.

        You could argue that the proposed way to handle continuations still allows the filing party to extend a patent, but you forget that the f

        • Re: (Score:2)

          by arose ( 644256 )
          Wait, you can patent an 8 year old innovation by adding it to a 10 year old patent? And here I thought I had a good grasp on this insanity...

    • If I got your suggestion correctly, you suggest that:
      1. The improvement means that the old patent is invalid
      2. The improvement means that the patent must be "re verifed", and go trough a sane process of checking if it actually is innovative enough to be worth of a patent
      This would actually be quite good. It would mean that you have the choice between losing the patent rights by timer, or file and still lose them.
      The real problem is that nobody is actually checking the patents in the first place, so it is no

  • Inevitable pedantic post (Score:1)

    by Anonymous Coward

    OGG is not a codec, it's a container, usually for the Vorbis audio codec. And what's up with "ogg and theora"? Too lazy on Sunday?

  • WTF??? (Score:1)

    by Anonymous Coward

    That means that if a company, no matter how big or small, ever files a patent that relates to video compression, they have to suddenly join every single standards body just so they can tell those standards bodies that things they're looking into infringe on patents? At what point is this company supposed to move on and do engineering work?

    Also, if I start a standards body that becomes moderately important in the field, then I have to suddenly deal with 500 different companies that deluge me with possibly r

    • Re:WTF??? (Score:5, Informative)

      by MysteriousPreacher ( 702266 ) on Sunday June 19, 2011 @06:49AM (#36490366) Journal

      That means that if a company, no matter how big or small, ever files a patent that relates to video compression, they have to suddenly join every single standards body just so they can tell those standards bodies that things they're looking into infringe on patents? At what point is this company supposed to move on and do engineering work?

      I believe these companies would only be under an obligation to disclose patents if they are active in the setting of a related standard. The goal here us to prevent people from helping to develop a standard reliant on a patent they just happened to forgot they held.

      • Why should the patent office not be told that from now on, they have an obligation to advise the various standard organizations about software related patents. I can't see how any algorithm can be patented. I could see it being copyrighted, when it is published. We need in reality, to dispense with software patents altogether.

  • "Defacto Standards" will be all that remains. Our standards will be determined by the best marketer or highest campaign contribution which results in the most purchases.

    Ultimately, Microsoft's original strategy will become the only strategy that will work -- give it away for free until critical mass is achieved and then raise the prices.

    • "Defacto Standards" will be all that remains.

      Why? Unless I'm missing something, your comment seems a bit nonsensical. This should actively encourage creating public open standards. If you want your product to be safe from patents, then the best way will be to state clearly how it works in a patent. Basically you would want to do that for every part of the products functionality apart from those bits where you can get a patent yourself or keep the functionality secret.

      • The "standards" will be open, sure, but no one will use them. ODF is an open standard. MS uses OOXML, and would use it even if they hadn't messed with ISO. And just because they are the largest player in the market, OOXML would become the de facto standard that any other office suite would need to support. It's true this isn't a patent case, but I'd imagine the same applies.

    • Re: (Score:2)

      by Jonner ( 189691 )

      Thankfully, Microsoft has failed in their attempt to control the web. Even if de facto standards are all that matters, they will have to be agreed on by at least Microsoft, Mozilla, Google, and Apple.

  • "Put up, or shut up"

    Thanks Xiph.org. Someone has to fight the good fight.

  • My suggestion is.... (Score:4)

    by Joce640k ( 829181 ) on Sunday June 19, 2011 @06:45AM (#36490352) Homepage

    a) The patent office needs to employ some experienced, unbiased software engineers who understand the word "obvious".

    b) They need to break the link between "profit" and "number of patents accepted".

    c) They need to make it much easier to invalidate a patent due to prior art and obviousness (this isn't necessarily a good thing but it's needed because of all the "a" and "b" they've done in the past).

    • A) Joce640k Should vote for the increase in salary of goverment employees and not vote for the guy who offers the biggest tax cut.

      B) Joce640k Should stop trying reduce spending by trying to make institutions be profitable regardless of the effects.

      C) Joce640k Should stop voting for senators that are wholly in the pocket of big business just because they promised him a tax cut.

      The patent office used to work, then cut backs came along. Now it doesn't. Who voted for the cutbacks?

      • It's important to remember also that quite a few of the things the patent office does nowadays they do because of successful appeals against their patent rejections. E.g. the standard for "obvious" is at least in part determined by patents that the office rejected and then lost lawsuits about.

      • That's an absurdly reductionist viewpoint.

    • If you want that, then do this:

      a) Petition Congress to end fee diversion. Currently, the USPTO is not allowed to keep all the fees it generates.

      b) Whose profit? See (a).

      c) Read the US Supreme Court's opinion in KSR v. Teleflex. Then read the comments on that case by patent professionals.

  • Clear Path to the Public Domain (Score:4, Interesting)

    by Jahava ( 946858 ) on Sunday June 19, 2011 @08:13AM (#36490606)

    I propose the following change to the current patent system:

    • When a patent is initially filed, the patent filer may optionally include an itemized list of costs incurred to directly develop the patent.
    • At any time after the patent is granted, the USPTO offers the following option: If members of the public can accumulate and pay 150% of the stated development cost of the patent to the patent holder, then the patent irrevocably enters the public domain.
    • Failure to disclose development cost will result in a default value (around $100,000, can be raised by USPTO as needed) being assigned to the value of the patent.
    • Misleading or incorrect information on an itemized list disqualifies the list and results in default value being assigned to the patent.
    • Challenges and negotiations regarding the value of a patent can be brokered in a public setting through an institution established by the USPTO.

    Under this system, inventors have a clear path to profit from the effort they invested to create a patent. No matter how much they invest, they will always make 50% of that investment back in profit. There is also a clear path to the public domain for the patent - anything so fundamentally critical can be purchased and contributed to the public domain with the USPTO as the intermediate broker. It is likely more profitable for any given company to place a patent in the public domain for all to enjoy than it is for them to license it from the individual company.

    The buyer of the patent can be a company, community pool of money, or even the US Government itself (think cancer cure) based on the criticality of that patent to any entity's set of interests.

    So patents aren't gold mines anymore. You can't build a business model around exclusivity. Who cares? Innovation will continue, as it always has, and now everyone can participate. I dunno; I like the idea.

    • This system already exists, and already functions better than it would if the USPTO were involved. If you want a patent to go into the public domain, do the following:

      1. Start a nonprofit organization, like a 501(c)(3) in the USA. Legal costs for doing so are minimal compared to the purchase price of the patent.
      2. Raise the money.
      3. Buy the rights to the patent.
      4. Either allow the patent to expire by not paying the maintenance fee, or by explicitly disclaiming the remaining term of the patent and granting the rights t

      • Re: (Score:1)

        by Anonymous Coward

        The point of the OPs idea is to prevent the uses of patents you are referring to. He doesn't want to support patents granted on ideas that were accidental or weren't expensive to come up with. He wants to cap the value of a patent. He wants to make it harder to use patents as weapons against your competitor and thus make it less necessary to have defensive patents. As you point out yourself, offering to buy patents does none of those things, so the OPs system does not already exist.

    • Re:Clear Path to the Public Domain (Score:4, Insightful)

      by evanbd ( 210358 ) on Sunday June 19, 2011 @12:53PM (#36492028)

      Most ideas don't pan out. This applies to patent-worthy, reasonably thought out ideas as well. Plenty of things look perfectly reasonable at the patent stage, but just don't quite work for one reason or another. This causes a problem for your idea: if I put in the effort to develop ten patents, all of them reasonable, and pursue them further, perhaps one or two or three will actually turn into a saleable, profitable product. If I can only recoup 1.5x my costs on those 3, and nothing on the others, I lose money.

      Patents are, in general, a bet on an unlikely outcome. Much like startup companies. Most of them fail, too. In order to make that work, you need a possibility of a high return. Maybe not an astronomical return, but a high return. Of course, none of these comments are relevant to patent trolls and such, but the problem isn't quite as trivial as you suggest.

    • I wonder if there is a way to pad the development costs. I guess a million times would be an appropriate pad amount.

    • Re: (Score:2)

      by rdnetto ( 955205 )

      This would encourage patent filing. It increases the value of a patent from a tool in litigation by adding some inherent value to it ($100K). What if the patent had no development costs beyond filing? Should the owner still get $100K? 0?

      I agree with Xiphs comments, though other measures need to be taken in conjunction with them. The public purchase of a patent should only be allowed where it forms the basis for a standard. On top of that, it would be nice to see RAND licensing for patents - that could solve

  • length (Score:2, Insightful)

    by Anonymous Coward

    With the pace of competition today, why do patents last more than 2-4 years?

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