Xiph.org Comments For the FTC's Patents Workshop

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.'"

Clear Path to the Public Domain

[Jahava]

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.

Re:Thank you xiph.org

[bzipitidoo]

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's recommendation a good idea? I don't know. Sounds good as far as it goes. But I think they do not go far enough. I fear clever legal experts will find ways around Xiph's solutions. And that they will turn those solution against us. Large companies could use Xiph's proposed mechanism to make an end run around any number of patents. Just make up another standard, and never mind whether the standard is ever adopted, as the point is to quash related patents. Would little folk be able to use this technique? And who decides what is a standard, what the requirements are to create a standard? Are we going to appoint ISO as our new overlords to decide that? MS's OOXML campaign springs to mind as an example of what could go wrong. In contrast, if we simply eliminate the patenting of software, we don't have those issues.