Open Defensive Patents? 159
"Dear /.,
There has been quite a tide of discussion lately regarding the inadequacy of the U.S. patent system when it is faced with technical intellectual property issues. Much of the controversy surrounds the ability of large corporations to patent what are apparently basic or obvious implementations of Internet technology (The Amazon one-click shopping patent, the AskJeeves use-a-question-to-search patent, etc.). The main gripe seems to be that much of the underlying technology which was produced in a communal, open, free-exchange computing culture is being seized, caged, and milked in patent form by mere opportunists looking for a way to insure the wealth of their family line for the next several centuries. Of course, this wealth is extracted from the hard work of the people who developed these technologies, whom in large share come from the general open-source community.
The corporate types and their lawyers will object thus: "Well, if *we* don't patent this stuff, *someone* will, so why should we be the ones to get screwed?" This is the basic argument for the defensive patenting that is going on all over the industry.
How about this idea: We can't fight the patent system, and it's not going to simply disappear, so why not try to make use of it? How, you ask?
Open Defensive Patents.
The geist of this is that obvious technologies are patented, but these patents are granted to a class of people, or to a community, or (what the heck) to everyone, thus rendering their legal power useless. You can think of them as Public Domain patents if you like. Well, I Am Not A Lawyer, much less an expert on patents, but I did think this was an angle to the issue that hasn't been addressed, so I though I'd toss it into the collective /. mind for comments or ideas. It does make a good prima facie case, but there are certainly going to be subtleties to patent law or licensing that I cannot see.
-Rob "
Shared patent pool (Score:2)
These are all interesting ideas... but I can't really do much, not being in the US and all.
Why not just publish? (Score:4)
A central repository of prior art would be useful, as somewhere to refer to for help in settling bogus patent claims. www.prior-art.org and www.prior-art.com both exist, but don't seem to contain much at the moment, so they may or may not be relevant.
Patents Vs Prior Art (Score:2)
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Open Source is 'Prior Art'? (Score:3)
So the thing to do (as has been mentioned before under this subject) is to have a public repository of groovy and original-looking code in an easily understood and multiply-implemented form - in the pedantic style of patents.
So USPTO just drops by whenever someone tries to patent the Unix runlevel daemon idea - and learns to understand us and our code and culture in the process. So this site must not be anti-USPTO, is the point I'm making, there.
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Previous works? (Score:1)
This would alleviate the legal and financial problems that we face trying to get patents granted, while still protecting obvious ideas.
Am I way off track here?
Cost of 'open' patents (Score:1)
Of course, not everyone would contribute, but I would have though that most people would cough up a small donation for stopping 'major' stupid patents.
How about peer review? (Score:5)
Re:A simpler way... (Score:1)
Interesting idea (Score:5)
1. It takes time and money to actually go through the process of doing patents; if we're going to have a Free Patent Foundation (so to speak), someone's going to have to be doing all the work for this, and since patent licensing fees would presumably not work as a revenue source... :)
2. In order to really have this be effective, we would need to patent a *LOT* of things. Even if we patented everything we could think of, there would still undoubtedly be things we'd miss, that some opportunist (as he put it) would take advantage of; but this would definitely reduce the number of stupid patents owned by greedy companies. However, multiply #2 x #1 and we've got lots and lots of patents, taking up lots and lots of time and money.
3. In theory, since the patents would all be "open", meaning they are totally unrestricted in their use by anyone, then we might still have boneheads like Amazon.com patenting *the same thing* and ignoring our patent entirely. I would not put it past patent lawyers to figure out ways to acquire a patent on something that has already been patended, except for making minor changes that would distinguish it to the USPO. (As we've already seen, the USPO will apparently grant a patent to anyone for anything.) So later, when a legal situation comes up, Big Companies like Amazon will win in court due to superior mu$cle, even though their patent isn't really legitimate (not to mention that their case will probably be frivolous to begin with).
IANAL, so I'd appreciate anyone's clarifications on this. I'm just basing this on what little I know of patent law here in the states.
Too damned many things to patent (Score:1)
One of the problems seems to be trying to figure out what someone else is going to try to patent. I'd have never thought about trying to patent either of the two examples mentioned. They just seem to obvious. Even if you had the money to submit the patents, you can't patent everything.
Our patent laws are in desperate need of revision when it comes to software, etc.
This wouldn't solve the problem of tryint to patent everything and require some changes in the law, but one way to implement something like this would be a no-profit, no-cost registration. You would fill out a patent form and submit it to a pd database. No research would be done nor would you be able to charge others for the patent. The form would just sit there until someone else submitted a "normal" patent application. Part of that process would be researching the pd database for other registrations. If there's already a pd patent on it, your personal patent would get denied.
Re:A simpler way... (Score:1)
Arrgh, hate this redundant rating. When I begun writing the post, there was only one comment yet!
No money. But there are other solutions. (Score:4)
1. Make patent applications get posted on the Web so that they can be pre-empted by prior art, rather than challenged after approval (doesn't
Europe do this?).
2. Shrink patent lifetimes for software patents (if not ban software patents altogether).
Internet patents should live on Internet time.
(How's that for a sound bite?)
But, aren't these solutions going to be defeated by entrenched corporate interests?
For every corporation that benefits from the current dain-bramaged implementation of US patent law, there are several that suffer. I really don't think this ridiculous situation will survive the next few Congressional sessions.
One concern (Score:2)
Patent wars (Score:5)
Both companies pile up all their patents, and whoever has the heaviest pile wins.
Most companies actually use their patents defensively, or arrange a swapping deal. If the patent is actually useful, then they are usually tolerant of people experimenting with it as long as they don't try to use it directly against them, because the patent will still apply to possible derived technologies, which will make the patent that its derived from more valuable.
The difficulty comes from the companies with a single patent that their whole business is based on. Then the patent is more valuable to them to keep a stranglehold on the market, by eliminating direct competition.
If we created a patent and allowed everyone to use it, then these companies would still be able to use this ill-mannered behaviour simply because we can't patent everything. I think what we really need is some patents with a licence that allows free use for non-profit purposes, and free use to all organisations who own no patents. The patent could be donated to a non-profit organisation, who would fund the patent applications by charging reasonable licencing fees to large companies. Most companies who can afford patents can afford a reasonable licensing fee. The licence fee would be used only to cover costs, and fund the occasional counter suit if a company tries to prevent an open source rival by using a trivial patent.
internationality? (Score:1)
Also, we must not forget that there are always more than one way to do something. If someone patents a protocol to transfer stuff from a computer to another, well... we'll make a program that does the Exact Same Thing(tm) in a slightly different way AND make it opensource as well, rendering the proprietary one practically useless. (well, not useless, but who would want to pay to use a proprietary thing when they could have something truly free?)
Finally, speaking of this patent-mess, I was wondering if someone could TAKE a technology that was already opensource and close it with a patent? Example: I take the way Linux handles memory and patent it, forcing Mr.Torvalds to come up with something new??
Let the FSF force cross licensing agreements (Score:1)
Of course this sounds too easy so I am either making the wrong assumptions or I have a flaw in my logic.
Re:A simpler way... (Score:1)
Hold on, isn't the CSS encryption method unpatented and wasn't it unpublished before DeCSS? Does that mean that before DeCSS someone could have patented the CSS encryption method and screwed the motion picture industry?
Other people thinking about/working on this (Score:4)
At the Public Patent Portfoloio Consortium [p3c.org] (P3C) there are links to a Technocrat [technocrat.net] article about this, and to OpenPatents.org [openpatents.org].
Disclaimer: I'm not impartial. I created P3C and wrote the Technocrat article. OpenPatents.org belongs to someone else.
Rather use defensive patents (Score:1)
Establishing a pool of patents for cross licensing purposes is much more useful than just giving away licenses to anyone. It could also be used to cover costs, and at the same time encourage open source, by requiring normal licensing fees for people who wish to license the patents for closed source software.
I have a cunning plan (Score:1)
"You may use this free patent but not unless you submit any other patents you use with this one in a piece of software to the Free Patent Foundation"
or something to that effect. maybe it could also impose a small charge on big companies wishing to use our "open" patent to cover the administration
The cool thing about this is it helps reverse all past software patents granted! If it catches on that is. companies with stupid patents would have to relinquish control of any software patents they have if they want to use ours.
-1.114e+2083, Troll (Score:1)
Oracle most wise, please tell me how quickly this will be marked offtopic by clueless moderator?
Re:Why not just publish? (Score:1)
All this stuff is important, it should be treated as if the intention was to file a patent. The first questions a patent attourney asks are on what date was the patent conceived and send me over copies of the relavent information.
We need a FAQ on patent proofing your inventions which unfortunately would require a patent attourney, maybe somebody from one of the commercial Linux companies (Red Hat, valinux etc) would be willing to do this?
Better ways to spend those tons of money. (Score:2)
Furthermore, if the stated intent of involved parties is to "patent all the obvious things that the patent office shouldn't let slip through" then the patent office may well simply ignore any patent applications from them (and I can't say I'd blame them).
If the Open Source community could manage to gather these funds, a much better way to spend them would be to hire patent lawyers to go around and knock down all the silliest software patents.
Other good ways to spend it would be government lobbying and PR campaigns: to eliminate software patents, shorten patent durations, improve the patent office (I don't care how swamped they claim to be, with $10k filing charge, they ought to be able to hire someone bright enough to point out that XORing a pointer onto a screen is trivially obvious; there is a monstrous bureaucracy eating those payments and not doing its job), etc.
Of course, gathering that kind of money is a non-trivial implementation problem.
The simpler way isn't so effective (Score:2)
The trouble with prior art is we only knock out patents one at a time---we have to find prior art for each one, and then we still have to deal with the next, and the next, and....
A patent portfolio, on the other hand, allows us to pull the teeth of many patents at once, because our portfolio allows us to threaten large companies with stupid patents, just as they're doing to us. We offer to cross-license, they allow free software use of their patents, and we've neutralized their whole portfolio in one go.
At least one problem, though, is Inter-Mega-Ware may well be willing to spend the cash to invalidate our patents, while we don't have the wherewithal to do the same to theirs. Still, it's an idea that needs following up.
Patenting DeCSS (Score:2)
Hmmm. You could certainly try. In fact ISTR that US patent law allows you a year after publication to patent the invention, so this is still open.
However it would not invalidate the current trade secret law suit, and I'm pretty certain that the current injunction would apply to publication by patenting. Once you have won the law-suit THEN you can go for the patent, assuming you haven't missed that 1 year deadline.
OTOH you might be able to use this as a bargaining counter. Point out to the MPAA that if they lose the suit then they will have to license CSS off you, rather than the other way around. Then offer a deal where they drop the lawsuit and injunctions in return for a free license or something.
Of course, IANAL, and if there is one thing a scheme like this needs, its a competent lawyer to look at it. There may well be something in trade secret law that blocks the whole idea.
Paul.
This is a silly idea (Score:2)
There is no need to re-invent the wheel. Other technology areas have been dealing with patent law for up to 300 years, and have well established methods for handling certain problems.
Re:Why not just publish? (Score:1)
Re:Why not just publish? (Score:5)
Let's examine 2 possible scenarios. Both start with me developing some super-cool-nifty algorithm.
This is the basic idea around the GPL: You want my code, you must give me yours. What we need is exactly the same thing in patent space: a series of patents that are licensed such that any OSS project may use them, but any non-OSS program must yeild any patent rights to any other technologies to the OSS movement.
Ideally, what would happen is the patent origonators would sign the patents over to some organization (I'd suggest the FSF) and they would wield them to be the "viral" licenses forcing other patents to be made available to the OSS community.
Before you flame me about being a "communist" or something, be advised: I like making money as much as the next guy. This would not stop a company from patenting their tech and preventing other companies from using it sans fees, it would just allow any OSS program to use the tech. Sort of a blanket license for the OSS community.
BTW: this would be a great way for [RedHat|Andover|VaLinux|Corel|Caldera] to spend some of that IPO money: Buy blanket licenses for some of the more critical tech for the OSS community.
Prior art searches (Score:1)
There's also http://www.priorart.org/ , which looks like it's going through testing but looks more promising.
There's also the Software Patent Institute at http://www.spi.org/ .
Re:Why not just publish? (Score:2)
The people who run the repository have to translate all the prior art into "patent" language. Have a look at some of the "click-and" patents like A... and so on. Unless you have reformulated the prior art and published it in the "patentable" form than it becomes a question of interpretation - i.e. a question to be settled in court, so the repository has actually achieved nothing.
The only way to achieve this is to hire patent lawyers and other specialists in the aret of reformulating the obvious into obscure. And these folks cost money. Quite a lot actually. The expences for a patent consultant usually exceed by far the patent fees.
Re:internationality? (Score:1)
Ummmmm... Windows?
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"What is that sound its making?"
Re:How about peer review? (Score:4)
As an example I work for a large secondary credit card processor on a team of analysts. Everyone on the team has been involved in the computer industry from a programming standpoint for over 15 years.
And I'll bet this weeks paycheck, none of them know what the term "open source" means.
The problem exists everywhere. College Professors insist that COBOL is dead. (I only wish.) Webmasters insist that the internet is secure. (hahahaha.) The Slashdot Hivemind is positive that Windows is dead. (Does AOL have a Linux version?)
Companies that don't research prior art will simply hire experts to state that they're is no prior art.
Here's a better way of phrasing it:
How do you determine who came up with a process or application first in a world with concurrent, badly documented, research, when the people who need to make that determination graduated last in their high school?
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The patent law (as I grok it) (Score:1)
Under this clause, many things become a non-violation.
No where am I seeing a discussion of PROCESS patents. Like one-click shopping. Or scratch and win (as a web application)? Exactly HOW are you going to create a 'defense pool' of the classification of process patents?
And the final flaw in the idea of a patent pool:
So you have the $10,000 to file the patent. Now what about the money to defend the patent? Both infringement and attempts to have the patent thrown out.
As a vendor who makes ASIC devices said "We infringe all the time. And we only pay if asked." Does this sound like the attitude of a certain company in Redmond? Who has the time and money to prove an infringement in a closed-source product?
An example: Search slashdot for code warrior by metroworks. (the slashdot crew would have to fidn it...static pages can't be searched by us mortals) There was a claim by an AC that while they worked at metroworks, they used gcc GPLed code in the product. Now, where is the outrage for the alledged violation by Metroworks? Corel has gotten its fair share of tounge lashings....so I know the "community" is able to tounge-lash. Because Code warrior is closed-source...it will take work to figure out if the allegation is true. And I don't see anyone who is taking the time to examine the serious claim of infringement in the Metroworks case. (If you can't defend what you have already...why are you seeking more to defend?)
(and why do people want to assign patents to the FSF? So they can make money off the patent when they lease it out to companies?)
Not all U.S. (Score:2)
Furthermore, the Internet is an international beast. If someone infringes a patent from *any* country over the Internet, an infringement award can probably be had...
So, just because the U.S. has the most aggressive patent system doesn't mean that you can do much.
By the way, simply publishing an invention has the same effect as patenting it. The only thing is that a patent is presumed to be valid, so it is a big advantage to have one.
Re:Patent wars (Score:2)
You seem to want to limit their free use to companies who aren't getting silly with patents. So surely the system you actually want is not to check whether they have patents but how they license their patents. There are plenty of companies out there who patent stuff to stop others patenting their work and then using is as a weapon, but don't actually charge for the licensing. Which is essentially what you seem to be trying, and is to be applauded.
Greg
GPL for prior-art (Score:1)
For those of us who can not pay 10K for a GPL patent: prior-art.com
However this does not remove the issue all together. So I publish something at prior-art, how do you know that after a while I wouldn't come back and wouldn't use prior-art to get my idea patented in case if it catches on and I decide that I can make some dough?
prior-art should get all rights to ideas posted on their site and they should not be able to patent any of those ideas under anything else but the GPL.
Prevent patent misuse (Score:2)
This however isn't a perfect world, and as we have seen in the past, there are ways of getting around / avoiding patents which already exist. As has been commented before, it is easy enough for companies to get patents on technological ideas when patents for the same things already exist.
Where everyone's efforts should be concentrated (IMHO) is following up the bogus cliams made and accepted, and pushing for a change in the patent rules to stop it from being done.
As a possible thought, how about setting up an organisation to check up on these things (as has been discussed), but in order to provide finance for inevitable law suits to contest patents when needed, the organisation pushs the large (and not so large) corporations for support. Get enough on side and the cost to each is minimal, yet the potential positive publisity is very large. Also, if company x patents something illegally which it's competitors would like to use, it would be in their own best interest to collaborate with the organisation and each other to overturn the patent.
With centralisation to manage how it is all organised, and pulling the right levers in many companies, it could become a force to recone with. Companies might not be worried by the threat of government intervention on these matters, but how would they feel if they knew that if they tried to break the rules, they would find themselves alone, up against the whole (or the majority) of the computer industry.
publish and be damned (Score:1)
Create a well known web site and just allow software algorithms/techniques to be posted on it. Give it a search engine and maybe let editors do some tidy up work and spam elimination.
The object is NOT to assign priority to the posters but to make public both the algorithm and the fact it's already publically known.
After a while such a site would be useful in it's own right as a knowledge bank.
A Way to "Open Patent" (Score:2)
Similarly, there is a statutory invention index that are "defensive" patents which go through the PTO obviousness review, but cannot be used to sue. Either of these ideas is practical. It would be simple to set up a web based group to handle this. Any takers?
the devil in the details (Score:3)
Both companies pile up all their patents, and whoever has the heaviest pile wins.
Pithy and amusing, but clearly false as a general statement. The truth is far more interesting
Consider Microsoft (then owner of only a few hundred patents), and STAC (then owner of 1). Verdict: Microsoft liable for patent infringement to the tune of $110M.
Present tense, we are seeing Priceline.com (few dozen patents) suing Microsoft (thousands of patents).
There is some truth in the proposed statement in certain circumstances (cross licensing between industry giants), but aside from being funny-sounding, it does not really inform the question.
The better way of saying it is to note that there are many uses for patents, including offensive (revenue-generating, competition-eliminating) uses of patents and defensive (cross-licensing; counterclaim protection) uses of a patent portfolio. Much depends upon whether a company is going for a large number of relatively weak, narrow, "covering" patents, in lieu of a carefully crafted, expensive patent of very broad scope.
The difficulty comes from the companies with a single patent that their whole business is based on. Then the patent is more valuable to them to keep a stranglehold on the market, by eliminating direct competition.
All patents suffer this problem, but in practice, markets being what they are, single-technology companies tend to generate more revenues by licensing fees than by extorting monopoly rakes. The vast majority of patents aren't practiced at all. Of those that are practiced and commercially meaningful, the vast majority are exploited by licensure.
There are certainly notorious examples of companies that have taken "seminal" patents out of circulation throughout its term (e.g., Polaroid), but to do so, there needs to be the rare combination of a stranglehold seminal patent, and no meaningful alternative in the marketplace.
Re:Patent wars (Score:1)
It also fails to prevent a company with a trivial patent from getting more trivial patents as a counterattack.
The problem is that I couldn't think of another means of licencing that is objective.
Still, I think the idea could be workable with a little more thought.
To each nation its own (Score:2)
Various treaties permit you to file foreign national applications within a limited time period after a domestic application, or to extent that period de facto by filing a so-called PCT application.
But the invention must be patentable according to each coutnry's national law to obtain a patent there. Virtually every country considers foreign patents and publications as prior art (although some, but not all, consider foreign public uses or sales).
It is highly unlikely that you could obtain a later patent on an antedating work in a foreign jurisdiction, and even if you could, the offering of or importing into the domestic nation where the work is patented by another would be a patent infringement by *you*. (Highly oversimplified analysis of an highly oversimplified hypothetical -- on subtly different facts the end result can be quite different, just trying to give you a taste of the considerations).
The More things Change... (Score:2)
But I am not talking about the 1990s... I'm talking about the 1890s. In that time the industrial revolution had started full swing in the US and most of the money of the time was held by only a few people (Rockafeller, Vanderbilt, etc). And the reason that happened was because there were not laws on the books to protect the people from them.
Now the arena has changed but we have the same situation. Defensive Patenting may be the answer but private organisations have historicly not been able to compete with large corporations. The corporation has time and money on its side, and time and money will tend to win the day in the legal arena. What eventually broke the strangle hold of the huge corporations of the 1890s was protests and the formation of labor unions to fight for worker rights. The government also had a hand in this when they founded the FTC.
Alternativly though instead of defesively patenting ideas; maybe creating an organization of open source programers who could then lobby the Federal Government to change the laws may be more effective. We already have forums here to get our ideas heard by one another, why not get some organization?
You Grok wrong--pooling is a great idea (Score:2)
You are free to make copies of the patent instrument, of course (which is a copyrightless government publication). On the other hand, if you "make" or "use" the invention, you are infringing, regardless of use, and even if you didn't make profits, would be subject to injunction a reasonable royalty and court costs, plus possibly treble damages and attorney fees.
No where am I seeing a discussion of PROCESS patents. Like one-click shopping. Or scratch and win (as a web application)? Exactly HOW are you going to create a 'defense pool' of the classification of process patents?
By inventing new, useful and unobvious processes and filing the applications?
I agree that much thought needs to go into the licensing approach for a patent pool, and I would not use FSF for that purpose either. But the fact that there are complex questions doesn't mean this isn't a capital idea once fully developed.
A Possible Model: IBM's Patent for DES (Score:1)
When the NBS (now NIST) decided to adopt IBM's algorithm for use as a national standard, they had to make sure that the algorithm could be used by *everybody*, royalty-free. IBM already had the patent on the algorithm, though. So they granted a "non-exclusive, royalty-free" license to anybody that wished to use the algorithm.
It might be wise to model such a patent license after IBM's. You can find a copy of it in the August 31, 1976 issue of the Federal Register.
Now the only problem becomes finding the money to patent such things.
Incorrect(?) (Score:1)
But challenging patents takes lawyers and money. Well, don't worry, as usual, the big corporations are going to protect you here (feel free to continue to bite their hand as it feeds you). They'll knock down the "obvious" patents in time.
As for where the technologies come from, you are completely clueless. The Open Source community? Give me a break! If it were released Open Source, it would be prior art because it would be sprinkled over the net and any simple websearch would turn it up. Nothing that has been patented is Open Source... everything open source is prior art, catch-up work. What happens if someone in the open source dimension actually invents something new? Put it on the net. Make it visible to search engines and such. Blammo, no one can patent your idea and you guarantee that no one will make the mistake of thinking your invention is worth money.
Esperandi
Peeved when people don't believe that they'd be dead and buried without corporations.
The wild, wild west ... (Score:2)
Exclusitivity - the whole patent philosophy is based on the legal exclusion of parties from copying the idea without compensation. The problem is that ideas breed, the more you generate and intermix with others, the more valuable combinations emerge. So rather than trying to protect the ideas, a better solution is to just hire the people with good track record of new ideas directly.
Originality - when is an idea genuinely original and ground-breaking rather than variation on others? Also given the ease of combining software, patenting near-infinite combinations of functions in the hope of picking something that appeals disproportionately to the consumer is a matter of brute force, rather than careful design which should be encouraged
Cybersquatting - claiming an idea and then sitting on it waiting for other people who've actually spent time to develop related ideas and then sinking them is a little reprehensive as society generally prefers that rewards be proportionate to effort. Perhaps a system where the initial patent is free, but you get charged an increasing amount each year to force people to use it or lose it would convince the horders and non-serious players to find someone else to rip off. In principle with general law, you should bust rent-seeking behaviour and try to award protection to those who have actually improved value
Period of control - 17 years is way to long for software. Perhaps valid in the old days when constructing factories took that long to pay for themselves but soft ideas get dated much more quickly. Perhaps have a system combined with other so that after 3 years of a challenge period, you get charged n * 10^(years/5) so that when the cost of protection becomes higher than the utility, the patent is released to public domain and avoid cluttering up the existing record. If ideas expand exponentially, think of how much junk you have to wade through in 2050!
Dispute mechanisms - this is somewhat related to tort reform because when you've got major players squabbling like kids over a favourite toy, it seems a little undignified. As technology moves in waves, how do you prevent another person half-way around the world to patent a similar idea when they're ignorant of your work? People looking back at say barbed wire might consider it rather minor nowadays but back when they first came out, there were major legal battles over who would get the profits from fencing in the west. Perhaps rather than fighting it out in court, they could go to a market drive system of rights (e.g. to distribute) sold at public auction
I don't have any real answers, but I would think the solution is more dependent on thinking through the economic incentives and redesigning the process to suppress negative behaviour while encouraging worthwhile endeavours. To sum it up
- period of initial non-exclusivity so people can spot prior art
- originality barriers in size to company
- reward people for the improved value/implementation
- vary the period of control by increasing the fee/year so to declutter the public record
- look at public auction of derived rights (e.g. to distribute) to establish fair market values
It really is a thorny problem and IMHO the technology/speed of development has just made the concept of patents a dead-weight loss the way it is currently designed.
LL
There is a solution to the money problem.. (Score:2)
Second, the solution is to compramize your principals when you need money, i.e. the worse the application of the patent (the more polution in the enviromentalists case or the more non-OPLed patents it is being used with in our case), the more you charge the person to use it. This means the orginisations which actually hold the patents need to pubilically acountable for their actions.
Third, Universities and Research institutes are satarting to consider using patents as a source of funding. Making the open patent lisence or enviromental patent lissence work could be as simple as pushing these research institutes to put very pro-enviroment and anti-intelectual proterty people in charge. Scientists are frequently few pro-enviroment and anti-intelectual property (the idea that anyone can use it so long as they publish too, i.e. GPL, should be very appealing to these people) so this could be done by pushing these ideas on the scientists that work at these places. We could get people to sign something saing that they will *make a reasonable effort* to not allow their patents to be used for evil and they will only enter into contracts which allow them to back out IF the person is doiong something bad with the patent. If all the researchers are on our side then we will win.
Jeff
How about a GNU Patent license? (Score:1)
Re:You Grok wrong--pooling is a great idea (Score:1)
Say, arn't you a patent attorney? Looks like your idea is a way to get more work for yourself.
What is needed. (Score:2)
This system should be:
- International in nature, including translation tools.
- Understandable by non-professionals.
- Easily and inexpensive to update.
- Note that this causes it's own problems. I'll use Network Solutions as an example. Because it's so cheap to register your own domain name, companies now register multitudes of them. If it was expensive to register domain names, only the rich could get them.
- networked in nature so that any new item can point to the items it's based off of. Under the new system I would suggest that you reward people based on the strength of their prior art searches, not the weaknesses.
- Uses a seach engine to hunt for "similar" patents. This search engine would check for items with similar "parents", "grandparents", "uncles". This would mean that if I base my patent off a gas stove and a bathtub, I would still pull up a match (x%) with someone who based their patent off an electric heater and a goldfish bowl.
An interesting thesis for someone. Then all we have to do is get the governments to pass laws regarding it.-----
Want to reply? Don't know HTML? No problem. [virtualsurreality.com]
HBR (Score:2)
Is it legal? Yes. Is it ethical...
I didn't make the rules of the game. And I've no choice but to play. So I can only do my best to win.
Copyright it (Score:1)
ctimes2
The real problem is... (Score:1)
Most of it is so obvious that most of us wouldn't think of publishing the details of the process, let alone try to get a patent.
It's usually too banal to capture our minds, which is why we're so surprised every time a new bullshit patent gets awarded.
M@T
Re:Shared patent pool (Score:1)
If a Company with deep pockets comes along and starts a fight in court all the prior art enabling you to prove that their claim is bogus wont help you if you dont have the resources to go to court with them.
This would require an well funded Organization wich would take care of this stuff.
This raises the question of where to get the funds for such an Organization.
Perhaps some companies who found themselves with loads of money during the last months should think about this.
Re:A simpler way... (Score:1)
This is where the patent system and OSS conflict with intent. Patenting stuff enables you to be rewarded for your efforts, but still benefit society after you've made your money on your research investment. OSS, on the other hand, is never really driven by profit in the cash sense - the real "currency" of OSS is peer recognition and appreciation. And you only really begin to get that paid to you as an OSS developer by letting people freely use what you've written, then reading exactly how it was done.
The problem of all of the "prior art" arguments here is the patent issue is still an adversarial process. Even if there is "prior art", it must still be proved in a court of law, which cost money. Consider MegaBucks Inc, patenting, say the idea of a microkernel. Who is going to take them to court, even if there are 100 publicly available working microkernels already out there?
I don't know how it works in the US, but one of the best part of the UK courts is loser pays. That way, a poor defendant with a good case is willing to go to court, because their legal expenses are met by the aggressor...
Strong data typing is for those with weak minds.
Re:A simpler way... (Score:1)
Yeah, but... (Score:1)
First, if one is willing to go to the trouble and expense of patenting something, then an alternative would be making it unpatentable. If an (algorithm / business model / idea) was adequately publicized and clearly granted to the public domain before anyone applied for a patent on it, this should nullify patent attempts without using the patent system to do it.
The above might be worthwhile, creating a good, searchable, central database of otherwise patentable ideas committed to the public domain. The trouble would be keeping it useful without making the submission process as painful as the patent application process.
Second, a major issue with "defensive" patents is cross-licensing. The idea is that if IBM is going to patent the substance of every third memo, then GE is going to want some patents of its own so they can negotiate the use of IBM's stuff. The "defensive" part isn't simply a matter of, "Let's patent this, so we don't have to pay someone else for it later." Rather it's "Let's patent this as leverage when they patent that."
To the extent that the patenters themselves don't like this dynamic, it might be possible to create some institution to fight it, but I don't think yours will do it.
www.bustpatents.com : a prior art group (Score:1)
http://www.bustpatents.com/
Why don't we make an effort to gather a list of Obvious Underlying Technologies and provide examples to this company? The hardest task we face is determing *what* we need to protect, since we are continually astonished by these applications for patents. So, someone volunteer to compile such a list and let's work with these folks.
Re:Why not just publish? (Score:2)
The last time this issue came up, I suggested an extension to this approach. In order to encourage people and companies with potentially valuable patents to make them accessible to the open source community, we need to offer them an alternative where they can license them for open source use and retain the all the rights for commercial exploitation. I suggested that we offer them a license which grants use of the patented technology for open source projects (with some definition of what will qualify as open source). Now they will have to demonstrate that they haven't let their technology fall into the public domain, so they would probably have to require some sort of registration and approval process.
But your suggestion supplies the incentive that would encourage them to do it. If they will license their patents for free open source usage, they get access to all of the patents owned by the open source community. We could easily allow them to use the patented technology in commercial products. I know that would not be acceptable to some portions of the open source community. Can anyone think of another way that might be better?
I'm not trying to beat up the companies that hold the patents. One of the reasons they hold them is defensive, and I wouldn't ask them to give up that defense. I just want to give them a reason to play with open source projects.
I had an idea like that once... (Score:1)
I figured, if I ever made anything patent-worthy, why not apply for a patent for it, but never challenge anyone who uses it?
But this kinda makes more sense. I like it, myself.
------------
Re:Patenting DeCSS (Score:2)
Paul.
Re:Why not just publish? (Score:1)
This argument only holds true if you intend to patent. As others have pointed out, patenting is very expensive upfront, & extremely expensive to defend. For the average small software developer, patenting is unreasonable, & even with pooled patents, not every idea can be patented. Publishing is a good "poor man's patent", at least as far as preventing others from patenting it is concerned.
The same rationale applies to the second half of your post. It's a great idea, but not realistic in the vast majority of cases. For those truly great ideas, a comunal patent is fabulous. For the rest, publlishing gets the job done.
Re:Why not just publish? (Score:1)
If you are a company then this would work. But what about other open source projects? Can they use your patented algorithm without asking for your permission. If others can use your algorithm without permission, then Unisys can also use your algorithm without giving you the right to give permission to theirs?
If you want to give selective permission to open source projects, then where would you draw the line? Unisys also can probably release the program that uses your algorithm as a open source and still get away with it?
This is the basic idea around the GPL: You want my code, you must give me yours.
GPL does not say that. All it says is, if you are modifying my program and distributing the binary to others, those recipients are entitled to get a copy of the modified source code.
Ideally, what would happen is the patent origonators would sign the patents over to some organization (I'd suggest the FSF) and they would wield them to be the "viral" licenses forcing other patents to be made available to the OSS community.
Are you sure FSF is ok with that? Last time I heard FSF is against any kind of software patents. It is against the FSF philosophy.
The best way out is to lobby for abolishing software and algorithm patents.
-Siva.
Open Source Patent Registering Non Profit Org (Score:1)
Patents ... (Score:1)
It is not necessary to defensively patent. (Score:1)
Patents are expensive... I am in the process of working on a couple of software patents now. The only reason to get a patent is if that patent will make you money. pure and simple
If you want something to not be patentable just publish it and as many uses for it as you can. At that point you idea moves into the public domain and can be pointed at if anyone gets a patent that uses your idea, assuming they didn't have the idea first :-).
Take a look at: Software Patent Institute [spi.org]
By releasing your idea to them you are given the patent offices ear because this is one of the places they go when researching a software patent.
IANAL so you should still check with your own before taking any action with you intellectual property.
Re:There is a solution to the money problem.. (Score:1)
One problem with this. In general the researchers don't own the IP they create. When I was in grad school I was required to sign a document giving my university the rights to anything new I came up with while doing research for them. Companies are the same way. The researchers are already owned, as are whatever they invent.
-Brad :)
Re:Open Source is 'Prior Art'? (Score:1)
This assumes that anyone at the USPTO understands us at all. Not necessarily warranted
I think the elegant solution goes a lot deeper than that. The USPTO runs on a mandate dating back to the 1800's, and their procedures are based on a patent process that worked great when it was first established back in the horse-and-buggy era. The trouble starts when you take a process that's really best for patenting farm implements and machinery designs and apply it to a technology that is evolving so fast a design is obsolete by the time the patent grant arrives.
If the PTO were to redesign their patent approval process, OR LET US USE DECLARATIVE PATENTS and follow an example that WORKS FOR COPYRIGHTS, things will improve a bit. If enough patent examiners learn enough about how the nuts and bolts of the Internet work to realize a lot of these applications are for stuff that's been prior art, used freely in the public domain, for years, and not just more 'computer magic' that sounds good on paper and ergo must be worth patenting, things might improve still more.
Re:Why not just publish? (Score:2)
What you suggest in #2 is to prevent other people from using your patent if they don't behave the way you want them to. Well, guess what...GPL'd software can be used by ANYONE, regardless of how they abuse copyright law (shrink-wrap licenses, anyone?) The GPL has no "You scratch my back, I'll scratch yours" provisions. It merely says "Hey, you like it, use it, copy it, and let us have back the changes you make."
What you suggest has little to do with oppenness and freedom and everything to do with power and control.
The typical patent portfolio, used as you describe in #2, is FAR from being communist; it is quite capitalist.
Re:www.bustpatents.com : a prior art group (Score:2)
Publishing as prior art doesn't sound right to me. (Score:1)
Re:Why not just publish? (Score:2)
By using a patent to force other patents into the OSS domain, I can prevent a large corporation from leaching off my patents whilst preventing me from using theirs.
Words from the Enemy--Warning LONG (Score:2)
Every time I read a patent issue on
Hopefully, I'll be able to make a lot of the process clear. You see, I have earned a software patent...two actually (5,727,154 and 5,987,505). While I realize that to many of you, that makes me "The Enemy", hopefully, you'll be able to put aside any initial knee-jerk reactions and listen to what I have to say.
It's not entirely accurate to think that everyone who gets a software patent is somehow wishing to stifle innovation. I'm just a software developer, who had an idea, same as most folks. Mostly, like anyone else, I want honest monetary consideration for my work...which doesn't make me much different than anyone else.
I've seen developers work themselves to the bone, hoping for an IPO payoff. I've seen a lot of start-ups chasing after venture capital. Well, one of the ways to help secure venture capital is to have something truly innovative, which is what a patent is supposed to be. A patent lends instant credibility to the idea you're trying to sell, and makes it easier to convince investors to part with some of their cash. Of course, they get a piece of the pie when they do. However, I'm not here to debate the value of patents. I fully support anyone who wishes to give their ideas away for free to to the community. I'm mostly just want to explain what is involved in getting a patent.
Some people seem to think that the Patent Office gives out patents to software companies like trading cards, and that all it takes is a bit of cash and a lawyer and you magically can create some kind of money-generating patent overnight. This isn't really the case. Most of you seem to be missing the "filing date" part of the published patent. Most patents, software patents included, take about 3 years to get, once filed. One of mine took 4, and we still have one in the works! Patents don't get filed until there's already a good amount of work spent creating the invention, and even more work done preparing for the filing. Then, countless unpaid hours (if you're an original inventor, and not assigning your patent to the company you work for) are spent educating your lawyers and educating the patent office. Of course, it'd be nice to recoup that later with royalties...same as many people work slavishly for start-ups hoping to recoup their efforts later with stock options and IPOs.
Amazon's One-click shopping seems obvious now, with cookies and other technology...but computer technology moves fast. Was it as obvious in September of 1997? Probably not. I had the idea for my patents way back before the internet was really starting to get "big". I remember reading magazine articles at the time about how the whole internet thing "could be" the next greatest thing. Now, just a few years later, some of the scope seems hopelessly out-of-date. Of course, when I was developing my ideas, modem-based bulletin boards were big, and most "internet" connectivity was unix shell accounts, newsgroups, and the like.
Are there abuses? Of course...it's a part of life. Anyone who thinks the world should run perfectly and everyone should give 100% for the good of the community is a bit naive (IMHO). Maybe the world SHOULD work that way, but it doesn't, and never has. But, I see a lot of cries of those "evil greedy corporations abusing the patent system with obvious patents"...and these cries just don't usually jive with the amount of time spent getting a patent. A lot of times, when the patent is filed, the idea truly IS innovative. Perhaps the answer is a shortening of the time during which a patent covers a technology. Judging by the speed at which technology turns over, that wouldn't be a bad thing. But, part of the answer needs to rest with the USPTO..they need better-educated employees, and they need to move patents off of their desks faster (either approving or disapproving them). It seems rediculous to me to have an innovative idea get obsolete by the time the patent number is issued, and it seems equally rediculous to me to think that Amazon will have a lock on "one-click" for the next 17 years or so.
Re:Shared patent pool (Score:1)
My idea was to create a repository of "prior art" that would become so vast as to contain via brute force many of the items people might patent, but probably shouldn't because they are obvious.
It would work something like this:
-Create a website with a form. Let anyone submit ideas/plans/anything to it to get it into public record. /.). Once they reach a certain threshold, they are accessible to the public domain to use and view. (and hopefully prevent stupid patents, or at least make members exempt from them)
-Utilize some legally acceptable mechanism to prove the date of submission (possibly weekly batch mailings of all submissions via registered mail, or other)
-Have the submissions be moderated by a group of moderators (a-la
There are a few problems as best I can tell.
-A reliable, inexpensive way to validate/verify submission date
-There is a chance to receive patented information (part of the reason behind the moderation system is to try to catch things like that) -Getting community support (this includes myself, i just don't have the time for something like this right now)
Lets patent everything!! (Score:1)
Re:Patent wars (Score:1)
Re:Why not just publish? (Score:2)
Anyway, my thinking is that using a GPL would mean that NO ONE can improve upon a GPL patent without also releasing the improvements under the GPL. IANAL, so I don't know if this could be implemented; presumably, an improvement to an existing patent can be patented without violating the existing patent (someone please correct me if I'm wrong). However, putting that improvement into production would violate the terms of the license under which you make the basic product. In essence, by using my patent, patenting an improvement, and then using that improvement, you give me the right to use the improvement also.
This is completely different from what you proposed (if I understood correctly). You seem to suggest doing the typical corporate patent portfolio thing, but for a "good" cause. I disagree with that. I don't like patent portfolios and cross licensing and all that crap. i would rather just release stuff openly, like the GPL does.
See www.openpatents.org (Score:1)
(I've talked with a patent attorney to make sure the general idea of the license can be made workable, but I'm holding off on paying for the line-by-line legal debugging of the license until it stabilizes a bit more. If you're interested in discussing and improving the license, there's info on the site about an opl-discuss mailing list you can subscribe to. )
Re:You Grok wrong--pooling is a great idea (Score:2)
Then I'm sure all of my remarks should be discounted as mere attempts and misdirections in order to hustle work from the open source community. (Happily, good patent lawyers, like most good techs, rarely suffer from the problem of not having enough work).
Right or wrong, you may rely on my remarks, at least, as having been made in good faith. If more interested in truth than engaging in ad hominem lawyer-bashing, may I suggest rereading my remarks to discern the real import of what was written?
Slashdot sycophants (Score:4)
Why does it seem that those who least understand the system always scream the loudest? No where is this more true than when slashdot discusses Intellectual property. Damn few here have ever patented anything themselves. Even fewer have ever developed a usefull product with it. Yet, we have 10k experts telling us how the system IS, and how it needs to be improved.
I'm not an expert with the patent system by any means, but nor am I purporting that we need to toss the system out the window (or anything radical like that). However, I do happen to have a number of friends and family in the high-tech industry, who have developed a number of products and technologies (startups), and I know a thing or two. I have some bones to pick with slashdot, a few of which are:
a) One major slashdot misconceptions is that the startup/entreprenuer can no longer afford to patent, or that it is geared strictly in favor of big companies. From personal experience, I can tell you that this is simply untrue.
b) That just because the patent office OKs a patent, does not mean you are protected. That is, and always has been, the case. The real test is the courts. So most of these "obvious" software patent gripes on slashdot are pointless. It is not new to software, and it hasn't stopped other industry.
c) Intellectual property is still very necessary (not everyone on slashdot disagrees with this, but many do). To extol the virtues of those 2 or 3 open source companies, and draw from that that IP is uneccessary is even more absurd. I hear all these sycophantic calls about Redhat's sucess, that "support" revnues are sufficient. Their only real major success right now is as a financial security. Redhat is not even profitable yet, and the long term viability of their current model is still VERY questionable. Currently, RedHat's "support" division contribution to their income is negligible. What little money they have made, is by selling their software and manuals based AROUND convenience alone, not IP (that much is new). This convenience method probably can't last, atleast not on a microsoftesque scale. Put simply, if Redhat were to ever approach 1 billion dollars in software (convenience) sales, you can be sure that the competition will move in with byte for byte copies of their software (and maybe even toss some extra stuff in), and sell it for half the cost. The point is not that Redhat is a horrible company, but merely that they are not tried and true. To suggest we scrap all traditional business models based on one nominal and questionable success is naive. But I digress..
d) That "defensive" patents are only used by evil companies, and that they cause harm to the system. Again, being very familiar with a few companies that use them, this is not true. I feel that part of the problem is that many on slashdot don't understand that the solution lies in the COURTS, not at the patent office. As such, overly narrow patent(s) can prove to be dangerous. Overly broad patents can, and are routinely, struck down. You erect these patent walls such that you have a defensible position in court. The stronger your position, the easier it is to defend. The less likely you are to be steamrolled, especially by much bigger companies. It is not just big evil companies that use these, if anything, it's even more crucial for a startup.
In summation, if you want a good picture of the state of the patent system, talk to a successful entreprenuer who's actually done it. Not people who've NEVER been there themselves; the academics, open source advocates, lawyers, and company, in general can't see the whole picture. I know my rant isn't going to change the general tune of slashdot, but perhaps I can appeal to a few more rational individuals.
/* Aspestos Suit: On */
Re:Why not just publish? (Score:2)
Actually, this is already how it works. If your patent extends mine (say I come up with a new compresser, and you come up with an improvement to that compressor), nobody can use your patent without also using mine, and I get to say how that works.
Patents in the Real World (TM) (Score:2)
The main thing that we actually got into production was a large whole-machine interface package for a top-end line of their computers. It took a lot of time and effort and even after it was released it didn't really garner much fanfare in the public arena.
I started to do the math and our Return On Investment(ROI) to see why we were kept around. There were 20-25 people of different sorts. Six or seven developers, two artists, 6 platform guys(hardware or process), 2-4 testers depending on the stage of development, two contractors, a secretary, four managers and one VP. The Pres spot is reserved for a corporate big-wig. When I started to examine their cost structure and their revenue I started to wonder. Taking into account the mix of talent, you could use a round figure like $50,000 a year as an average salary, then add on the Human Resource overhead of 50% you get $75,000. Multiply by 25 and you get $1,875,000 in annual personnel expenses. Add to that facilities cost. The office was maybe 5,000 square feet so at a rate of $2/sq foot that comes to $10K a month or $120K a year. The fractional T-1 might be $1K monthly or $12K. Most other costs, like utilities can be lumped together , I'll just say all other costs total to what the rent amount is, $120K a year. So, we have
Salaries: $1,875K
Rent: $ 120K
T-1: $ 12K
Other: $ 120K
-------------------
Total: $2,127K
If the model this software was installed on sells 2,000 units a month, costs $4,000 and the gross margin is %20, that means $16,000 a month in gross profit. Say the software is attributed 10% of the gross profit, that would come to $1,600 a month or $19,200 a year. Granted, my percentage figures can't be accurate but I think they are good guesses. According to my numbers this model would have to sell 100 times better then this scenario, or some combination of 100 times between margin, sales and software percentage, for the subsidiary to pay it's own way.
Obviously nobody would be willing to fund this kind of startup without some prospect of getting something out of it. A major emphasis was on turning in "Intellectual Property" disclosures, a.k.a, patents, mostly of the software variety. Now, don't get me wrong, they had some really cool stuff but when disclosures are part of the quarterly goals and are listed in your annual review, you get the impression that they are important, not to mention that this was blatently stated numberous times, "patents are a very important part of what we do" (actually paraphrased).
Basically, we were a patent factory. It didn't matter as much if none of our products shipped as long as we were disclosing IP. They liked their products to ship as much as the next guy but it was always a struggle to the the parent company to have a clue how to take advantage of the software we wrote. A somewhat common occurance was that they didn't think of us until it was to late for us to provide them with anything useful.
Where is this leading? I thought you'd never ask. The reality is that unless you have one of those super-important patents, like IBM's scrolling screen patent, your goal as a company is to gather a portfolio of patents to defend yourself against other companies with porfolios of their own. There are two scenarios. The first is the company who is collecting a defensive portfolio, the second is the company who plans on aggressively enforcing a patent. They both are caused by the Patent Office's ignorance and that should be the main focus of our ire.
Now, this is my understanding on patent law. We had the legal guys from corporate come and brief us on the issues and this is what I can remember: In the US, you have 1 year after you publis to submit a patent application. Publishing means anything from a technical article at a conference to including the technology in a shipping product. This is normally not a problem but to be protected internationally, more countries require no public (as in to anybody not bound by a NDA) disclosure until after the application is filed. This means that if you want the broadest protection, you wait until after the application is filed before you make the information public. Another aspect is that patent applications are not available to the public. A patent is only released to the public after the application is accepted. This means that the only way for us to combat stupid patents to to be informed when they are issued and then start a challenge based on prior art that may not have been considered during the application process. The submitter is focussed on getting it issued and the PTO doesn't do much of it's own homework so it's up to the public (usually competitors) to challenge patents.
In closing, if we want to take more control of the patent situation, publish information as soon as it's "discovered" and then keep an eye on any patent that involves the published material and then challenge it if it was applied for AFTER the published date of the article or whatever.
Not like that. Here's a better idea. (Score:2)
Second, the method you describe is an urban legend. It doesn't hold up in court. Ask any lawyer. Ask any professional in a field where this idea's put forth- for instance, I saw this idea debunked in the field of song publishing, where the idea was to write songs and mail them to yourself to prove you had copyright. It doesn't hold up, it's worthless legally. Give me an afternoon with a kettle and a scalpel and I'll steam the bugger open and tamper with the contents- come on, you're not even advocating a seal of some sort.
I'll confess- I have some ideas in envelopes. I had 'em notarized, too. They're still worthless as proofs, and it's about time I opened them and did something else with them. My suspicion is that the best thing to do (in a 'libre' sort of way) is not to establish ways of stashing away ideas in storage, but establishing a way of publicizing the ideas, of giving them glaring publicity in a context where many people can see them and where they can be indexed and searched on by patent examiners, who'd be able to add a "step 247: do quick search of IdeaBazaar for related terms" to their process.
This would not be making any claims to protectability for the ideas involved- indeed, you could express ideas that were (unbeknownst to you) already covered by patents, harmlessly. But it would be perhaps the only sensible way to establish ideas into the public domain in such a way that they couldn't be taken back by the patent process. I know that for me (foolish though this may be) I'm not so concerned for nailing down My Claim to good ideas I may have. I'm justifiably concerned that somebody might sneak in, grab my idea while it's relatively unknown, patent it and then forbid me or anyone else to use it- or for that matter, that for every couple ideas I sit on, one is probably already working its way through the patent office to be locked up and forbidden to me. I find that situation untenable.
So, can we instead have something like SourceForge, only instead it's a heavily searchable hosting service for ideas that are to be established as public domain? Doing this could better the world, lead to widescale deployment of any ideas that are truly great ideas (including competing commercial products that compete on price not IP), and make such ideas widely accessible to individuals. I can honestly say that I would throw my entire portfolio (largely audio hardware, but I'm an inveterate idea-scribbler in all fields) behind such a scheme. Who's with me, and is there anywhere we can start this up?
Re:Incorrect(?) (Score:2)
If someone invented a cure for cancer, AIDS, the common cold and measles and put it on the net, the idea would become ubitiquous and, indeed, no-one would think the IP was worth money.
There's a big difference between IP value and human value, and anything with enough human value will produce business around it even if the IP is valueless. Look at agribusiness- nobody is claiming that growing things is IP, but going out and doing it is worth money.
You can hold whatever viewpoints you like, but making things public domain is merely turning over the money-making to implementations- it's giving the corporations you like so much a chance to use their efficiencies of volume, while still allowing individuals to work on a much smaller scale.
That said, I entirely agree with part of your point here- to my way of thinking, what's needed is an IdeaBazaar (tm), like a weird hybrid of mp3.com, SourceForge and slashdot, where people can establish accounts and add to a huge monster database of easily searchable public domain ideas. This could further innovation immensely, and obviously it would not be restricted to software alone.
The primary motivation would be cooperation, but a very important side effect is that (as you rightly point out) this is the most effective defense against the threat of secret patents popping up in a field of endeavor to halt innovation and forbid further work. To those who (justifiably or not) fear that anything they come up with will be wrested from their hands by corporate lawyers... and this is the motivation for all this wild talk of FSF patent pools etc... such a scheme would be the ideal counter-agent, being a centralized database of 'ha, patent THIS!' ideas, glaringly public.
In addition, there's another level- since the place would be divided into personal areas (bazaar-like 'shops'), if any particular inventor was genuinely talented and doing this for personal reasons, their area would quickly become a hot-spot, with many corporations and individuals dropping by to take the nifty ideas. Such popularity could establish such an inventor as a noted figure, giving them useful publicity and also very likely bringing them offers to solve other problems, for money, outside the public domain (and sign over the solution to a corporation, naturally.) That, obviously, is worth money. Being publically accepted as someone who can think innovatively is definitely worth money. Your value is not your inventions. Your value is the kink in your brain that gives rise to your inventions. Never forget that...
Right idea, wrong way (Score:2)
ATTN: SourceForge people (Score:2)
Would somebody please establish a public domain inventions site? Not a 'these are bad patents that got overturned' site, or a 'our little patent pool' site, but a SourceForge-like model for hosting public domain inventions, whether for software algorithms or processes or mechanical contrivances- anything that can be covered by a patent.
I already checked on IdeaBazaar and both the org and the com have been taken by God knows who- they are cheesy 'under construction' pages, and I have no great hopes that either will become what I'm talking about.
We need an unrestricted PD site in which ideas are intensely searchable and attributed to the inventor responsible for them- this would serve as a glaringly public resource for prior art (I have no faith in little personal websites being useful for this purpose), and could further innovation a great deal by providing unrestricted access to publicised inventions.
It's important that this not be bogged down by restrictions that would only stop the site from being used at all. Making a purely public domain site would be cheap (costing only the price of the hosting, and it could arguably be text-only for very efficient use of resources- that or small graphics for illustrations, never for decoration), and doing it with a media splash would ensure that the site _be_ legally accepted as public domain- all you need to do is get two corporations taking note of it, and then if one tries to take anything for itself the other will be ready to send lawyers to argue that it's prior art, and none of the FSF's money needs to get spent at all! :)
Seriously. We need this- we need a resource for publication of _all_ types of patentable ideas in the public domain, and we need it to stick to establishing stuff in the public domain, with no loopholes or extra conditions to confuse the matter. Please, somebody grab some domain that would work for this, and let's set something up. Particularly at first it wouldn't be that costly. I'd have already grabbed www.ideaforge.org and be offering it for nothing to sourceforge (assuming they like the idea), except that I don't have a credit card and since I registered airwindows.com Network Solutions seem to have stopped using any payment option I have available. God knows what I'll do in May when airwindows' two years runs out o_O
Re:How about peer review? (Score:2)
How much of the source is open? All of it or is there necessary security data that is not in the source release? Does Linux depend on closed source binaries at any point?
These are all things I don't know. Until I get the $ together to build a second box and start playing with Linux, my knowledge is far behind the rest of Slashdot. (no. I do not want my wife to deal with a dual boot machine on top of all the other things I've done to our sole PC.)
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An implementation of this idea... (Score:2)
The ATVEF spec [atvef.com] for enhanced TV already uses this model. Companies who "adopt" the spec get a free license to the patents from Intel and others who spearheaded it. License agreement here [atvef.com].
-Merlyn42
Re:Why not just publish? (Score:2)
The thing to do isn't to get a patent, but to publish the technology instead, so that it can't be patented at all.
This assumes that the existance of prior (published) art prevents a patent from being issued. This is obviously not the case. Most of the patents which slashdotters find objectionable are for ideas which are already in existence and obvious. The Amazon.com pattent is obvious and not an original idea, it was already "published" before it was patented. Even the idea of a open patent system falls through here, because who's going to think of patenting such trivial things?
Maybe a better idea would be just to pattent EVERYTHING - breathing, drinking water, using toilet paper, slashdotting and flooding the patent office until they're forced to reform patent legislation and practice. The problem with this is that, IIRC, it costs money to apply for a patent. Slashdotters should be campaigning for better US patent office administrators, except I don't think our republic allows those to be elected by the people.
Re:Slashdot sycophants (Score:2)
a) A startup entrepreneur can definitely apply for a patent. A college student experimenting in his apartment cannot. Both are at a disadvantage to a major corp., because it's essentially out there trying to plug all the possible holes in it's IP, whereas they're going to apply for the one or two patents that really embody their idea. In the long run, the corp will have more leverage.
b) I think most people on Slashdot are aware of this. The point is that it's a tragedy. The idea of patents is SUPPOSED to be to encourage the exchange of ideas, not patent suits. What you're saying is that the Patent Office has no real credibility, and that needs to change.
c) The suggestion that we scrap old business models and go with new ones ISN'T because of RedHat's success. Indeed, it's more like the reverse. ESR has provided some very good examples of this. Let me ask you this, what is the market value of Office '97 the day after Office 2000 comes out? What was it the day before? What is it the day after MS officially desupports it? In all those scenarios, we're talking about the same product, with the same features and benefits, but the price fluctuates a lot. Why? Could it be because the real value to the consumer is the support? Now, instead of looking at the profits of RedHat, look at the costs for the industry as a whole. Is it mostly production costs or support costs? Always support costs! Either that or you give shoddy support, tell your customers they're stupid, and quickly desupport old products and sell customers "upgrades". 20 years ago, some companies tried to change the economic model for software, and succeeded. However, it's not a good model, and the problems with it are very apparent these days. THAT is why RedHat is valued so high, even though it has no track record.
d) To break down patent holders into "evil" and "not evil" is about as ludicrous as Teddy Roosevelt's comments about "good trusts" and "bad trusts". It doesn't matter whether a company is deemed evil or not, it matters what the impact of their specific actions with patents are.
Ok. So, now I'm your entreprenuer (success is questionable, but that's another story...). I'll tell you what I've learned: most VC's still won't invest in a company without IP. Every startup tries to patent what they are doing, even if six different companies are doing the same thing. The reality though is that ideas are a dime a dozen. (Remember, the whole thing with patents is that they don't protect any of the blood sweat and tears you put in to developing an idea, what they really protect is the idea itself, and you get this protection NOT because you came up with it yourself, but because you filed it first.) The real thing that seperates success from failure is all the hard work that goes in to implementing an idea.
I see tons of great ideas every week, and I talk to IP lawyers and VC's who see tons every day. None of them sign NDA's, and they back it up by saying exactly what I'm saying. You want to succeed as an entrepreneur? Do market research, write an excellent business plan, hire the best people, build an excellent organization, establish the right relationships/partnerships. But whatever you do, don't think that all you need is a good idea and the right to sue everyone else about it.
Easy or not? (Score:2)
To get a patent (software or not), you must have an original idea or product.
If anyone, here, has a good idea, you can make some software and GPL and distribute it. Then nobody but you are able to patent it.
So then, what's the point of a "Public Domain patents" ?
Clarification(s): (Score:2)
Let me preface this by saying that I was addressing many often stated sycophantic statements on slashdot, and that:
a) I don't think the Patent system is perfect
b) I don't think that the patent system can't necessarily be improved
c) I'm not a big fan of VCs (though not worthless) empirically speaking, though theoretically they're highly valuable.
While I think there is definetly a great deal of theoretical space for improvement in the patent system, particularly where it pertains to the startup, I do not think it is simple by any means. Humans and companies are at constant odds with one another, I don't see any system in the future that will make judicial remedies much less unnecessary. The intellectual property system is messy largely because life is. We are never going to find a perfectly equitable and educated and intelligent patent office, particularly given that it is a government agency. By removing judicial intervention, and resigning ourselves to paper and bureaucrats, we would be subjecting ourselves to a highly inflexible system, that can't adapt very well at all. There are trade offs to be made (yet there still is a fair amount of crap in the middle). As such, we leave it to judicial processes, where both sides can present their case when and where disagreement arises. This is not to say that nothing can be done to improve the state of things, but rather it's not nearly as simple as most on slashdot purport it to be.
When I was addressing the fact that the real test of patent is the courts, not the USPTO, I was referring to the test for the viability of IP protection. I was specifically addressing the frequently uttered concerns of Slashdot Jr.'s about every patent claim, and telling them that the claims are not the same thing as reality. Most of these aggregious patents will not stand up. Furthermore, I was not implying, by any means, that intellectual property and the legal means to support it are, in and of themselves, sufficient. I'd be the first to tell you how important it is to have an excellent CEO, good management team, a good business plan, a differentiable product that people would want to use, capital to finance actual development, and many other things.
While IP alone does not cover blood and sweat, it can provide sufficient protection of your idea, that would allow you to justify an investment of blood, swear, and tears into a product or service. If the entrepreneur lacks the intelligence and/or the capital to properly develop (market, finance, etc) the product and the company, the IP probably won't do them any good anyways. This is part of the reason why I feel that many of these would-be entreprenuers are, in reality, not as greatly affected patent costs as many would indicate. It does erect increased barriers to entry, but I sincerely believe that most competent CEOs will eventually clear it. In short, I believe the capital market system does a reasonably good job, on the aggregate, of delivering money to people who can actually develop a viable product with it.
Regarding Redhat's market capitalization, we have a difference of opinion here. In my opinion, merely returning to the "support" model, does not warrant a market cap of 16 billion dollars. If support is indeed the way to go, as you say, and RedHat remains truely Open Source, why should RedHat retain a market cap. at 16b, when the competition (LinuxCare, et. al) is every bit as prepared to offer support as RedHat is (particularly when the competition is not at all burdened by R&D costs)? My point is not so much that the support market is irrelevant, but rather how can RedHat gain the majority of that market share? In either case, Redhat is unproven, and 16 billion dollars is not even approximately in proportion with the risks. Even under a best case scenario (maximum reasonable growth potential) 16 billion dollars is a hell of a lot.
Re:Slashdot sycophants (Score:2)
a) The courts resolve questionable patents (that is not new) -- I was addressing the habit of slashdot to go non-linear on the mention of any new patents it regards to be "obvious". The distinction I draw is the difference between paper and reality. A patent may claim one thing, but that doesn't mean that it ends up that way.
b) The system CAN be improved, it is the degree and the extent to which that I question. I do believe that frequent judicial intervention will always be necessary. The costs might be lessened to some degree, but remember that by resigning ourselves to paper and bureaucrats we run the risk of creating a system that can not adapt, and can't exercise reasonable judgement. There are tradeoffs to be made if you want to impliment many of these mentioned improvements. Do you really want to put your future in the hands of some bureaucrat that is empowered to act even more arbitrarily? When is the last time you ever (in history, or in any country) dealt with a truely effective, fair, and speedy bureacracy? In a field such as IT, how do you plan to draw talented people into the USPTO, who will remain motivated, and not play politics, or "err to the side of safety" all the time?
c) I readily concede that there is something of a skew towards better capitalized firms. None the less, it is most often misunderstood or exaggerated on slashdot. I hear all too often on slashdot that the only firms that can prosper with IP are Fortune 500 firms. Or that a small firm can't possibly beat a big firm. I can personally point to several people I know in different industries who've created multi-million (even multi-billion) dollar companies, and don't fit any of the descriptions alluded to by Slashdot Jrs.
d) I believe the capital market system tends to work reasonably well on the aggregate. In other words, if your idea is truely worth developing and you are capable of developing it, you will eventually find the money you need, to pay for a patent portfolio, or what have you. So if some undergraduate can't afford 50k for IP, then he probably can't develop the product anyways, never mind marketing it, etc.
e) When referring to the companies/entreprenuers that I mentioned, it covers a wide swath. From the college aged kid to the middle aged entreprenuer with 2-5 sucessfull multimillion dollar companies behind. From low technology, to high technology. From medical technology to computer hardware to aerospace. From East Coast to the West Coast. From companies with no competition, to companies that enter the fray against many Fortune 1000 firms and emerge on top (within their target industry). You can always argue it isn't a perfect sample, but I think it is good enough. I can say with absolute confidence, for example that there are many cases where intellectual property isn't only helpful, it's downright necessary (which many on slashdot will deny).
RedHat's valuation (Score:2)
Redhat's game isn't just to provide service. What they really provide is "Branding". "Branding" has justified the valuations of companies like Coke, Pepsi, and Heinz, so I don't think Redhat should be any different. Redhat doesn't just brand their support. They use their brand to charge a premium for services, and in the long run that can be VERY profitable.
But even that... (Score:2)
Furthermore, even though many (myself included) think the differences between, say, Coke and Pepsi are minor, many will say they taste different. Why is this? Because they DO in fact contain unique recipes. If you could buy an exact copy of Pepsi, in the same bottle, with merely different letters, for half the cost, would you still buy Pepsi? Yet with GPL software, this is exactly what you get. You can be sure that you're getting a byte for byte copy, and perhaps even additional propietary features from the competitors who choose to free load.
Now this might not apply to service contracts, but they haven't even started there. Perhaps RedHat has a chance, but is that chance worth 16 billion dollars by any stretch of the imagination? I don't know about you, but I can't think of any service firms in the high tech industry that competes on the same level (no IP) as their competitors (e.g., not Sun, IBM, or the like), yet still enjoys charging a premium based on their namebrand.
In the low technology service industry, I do know of atleast one company that does this, but they compete on price, do a better job for less money, while simultaneously enjoying higher profit margins than their competitors. The problem with this analogy though, is that I don't know if it could translate very well to a large (needs to be to justify a 16 billion dollar valuation so many years off) technology support company. Furthermore, this company is relatively young, with an extremely experienced CEO that knows how to run a company, and relatively small (well if you count the management atleast, which is what they specialize in). Even though this company is still growing quite rapidly, I don't think it would translate very well on the supposed scale of Redhat. Other than that, the analogy is a good one, because the company hires the same class of employee is their competitors, likewise I don't think RedHat can reasonably expect their lowest level support employees to be any better than the competition.
As it stands today, RedHat may have a name for themselves as a GPL contributing company, but they're pratically non-existent in service. Where are their service gurus? (I admit, I haven't looked at their management lately) I'd expect them to bring in an experienced management team at this alone, as it's a very different industry. Merely wanting to do service and holding a name that is popular in a different arena is not sufficient in the corporate arena.
Sorry if I'm rambling, but i'm tired...perhaps tomorrow.
One other thing... (Score:2)
...back to bed. G'night
Still does not follow... (Score:2)
The type of branding that Redhat needs to do will not hold out, when and if Redhat's market for their software climbs to Microsoftesque scale. Granted, they have generated significant revenues by selling this software at current date. Two points though:
a) RedHat packages used to package commercial software on their CDs (e.g., MetroX), until just recently. Cheapbytes never did this.
b) Cheapbytes CDs come without paper manuals and documentation. When the market grows, the free-loaders will copy this documentation. (RedHat's documentation really aint that great)
c) The market for Redhat's software has been relatively small, and as such the market for virtually free copies is even more non-existent. Your average linux newbie likely doesn't know that cheapbytes exists.
d) A number of Linux supporters, such as myself, have purchased RedHat's official CDs because we believe in what they're doing. I've seen Redhat spend some money on R&D and add value, thus i'm willing to purchase it at a premium. This is not going to translate with the growth, that loyalty won't hold.
e) Then there is what I call "convenience" sales, though somewhat redundant. Redhat has the market share of their own software because the market is small. It hasn't warranted any competitors to invest in properly marketing and documenting redhat's software. If Redhat's software climbs in popularity, you can be sure competition will enter.
These factors in combination leave me little doubt that CD sales will amount to much, not enough to justify even one fraction of their current market capitalization.
Support is vastly different. Deloitte & Touch and Anderson Consulting are heavily established companies with elite reputations in various industries. What is Redhat's reputation? They're a company that writes GPL software, who in the process has collected something of a following amongst techies. Are IT managers and management going to write checks based on this reputation? I have my doubts.
I'm sorry, but this stuff about a company not needing profits is bs. In the short run yeah, a company can do without them for awhile. Today, Redhat may have enough capital infusion such that they don't need to grow organically. But they can't survive in the red forever. Furthermore, as I alluded to earlier, having capital does not necessarily mean that they can properly grow their support division at a rate that could warrant their current market cap.
This is not to say that I believe that RedHat can't grow, but it is not going to be consistently huge growth--not the kind that would justify their valuation. Furthermore, Redhat and the majority of these Dot Coms are way overvalued. Worse yet, most of these companies lacking the profits, or even the revenues, to grow organically on their own, are going to fall on hard times when they no longer have these red hot valuations. These companies are likely going to go the way of the Bio Techs, red hot one minute, and the plague the next...but I digress.
Re:Still does not follow... (Score:2)
First of all, Redhat for the most part DOESN'T write GPL software. For the most part, they PACKAGE GPL software. They do write GPL software to help broaden the market appeal, but 99% of the code on a RedHat CD was not developed by them.
As far as CD sales go, I'm not saying this is Red Hat's future. I am just demonstrating that the name brand has value. Red Hat sells the box set for $75 in stores, next to other boxes that sell for less. They still sell a lot of CD's. Red Hat sells (online) a guru-friendly version of Red Hat for $30. It comes wth no docs or add-ons, and yet it sells for 15x more than a cheapbytes CD. Amazingly, it sells very well. That my friend, is the power of a brand name, and in the OSS world, RedHat has the best one out there. Granted, it's a small market still, but that doesn't mean that Red Hat doesn't benefit from having that name brand out there.
My point about Deloitte & Touche and Anderson Consulting was that you CAN charge a premium in the consulting business without having proprietary knowledge, something which you said wasn't true.
Indeed, they have established impressive reputations, but to a large extent their reputation for computer systems work (to the extent that it's relevant in today's world) has been from perfromance in the past 15 years.
Cygnus Solutions, as I mentioned before, is a VERY well established consulting company with a very well respected reputation. They are THE guys that compay's go to for solutions built with GNU tools. This is a company that's been around for 11 years, with 180 employees, with offices around the world, all doing purely consulting. They are very well established in the embedded systems market, as well as various IT projects. They have an extensive client list, etc., etc. As the maintainers of gcc and glibc they have an unparalleled reputation for working with those tools (which you need to do if you want to play the Linux game). They are now owned by Red Hat. So Red Hat does indeed have a reputation. IT managers and managment HAVE ALREADY written checks based on this repuration. Small little companies you may have heard of like Nortel, SGI, Motorola, and I believe Nintendo.
I have never disagreed that the whole tech sector is overvalued, but I think that RedHat is proportionally valued to it's competition. I do think though, that the computer sector has proven that they have a significant difference with Bio Techs: initial investment is smaller, and results are more immediately available. The lack of both of these REALLY hurts the biotechs.
Other minor points: There's plenty of freely available documentation out there for Linux, and RedHat isn't the only distribution that comes with documentation. (Don't forget, when RedHat was establishing themselves, one of the most common ways to get Linux was to buy a "Learning Linux..." book with a Linux CD in the jacket.) Nonetheless, people pay a premium for RedHat. That's brand name strength. RedHat can use it to peddle more than CD's.
Coke and Pepsi are VERY similar formulas, and if you like one or another it wouldn't take you very long to make something that matches it. I don't know what you're getting your comment about carbonation from. As a kid, I worked at a fast food place and one of the things I did was work the fountains. I'm telling you, the only difference between Coke and Pepsi was the sack of syrop they came from. They both ran through the same carbonation machine. It is TERRIBLY relevant if it's people's imaginations that seperate the two, because if it is... that's a BRAND NAME that's really impacting them.
Finally, can you explain this to me: why would the market for virtually free Red Hat software be smaller than the market for $75 Red Hat software? (your point c). This makes no sense to me, unless you're saying that people will only buy Linux if they feel there's a
Re:Still does not follow... (Score:2)
This Pepsi vs. Coke argument is getting old because you fail to see the distinction. I'm going to reiterate it anyways. People aren't buying Coke because it bears the brand name, they're buying into those letters because it is something of a gaurantee of the underlying product (real or imagined). How many times have these soda companies tried to release a new line of soda and, despite intensive marketing campaigns failed? I can think of a number offhand, all prominently bearing the Pepsi/Coke logo. [Slightly offtopic, the soda fountains and the bottling process are totally different. People, atleast with the bottled sodas, CAN and DO taste the difference--even if to you and I it seems trivial.] The point is that even if Pepsi's taste is just imagined, your argument doesn't apply to GPL software--because most users understand on some level that a copy is a copy, is a copy. Are you telling me that if I produced a CD burner, copied your RH6.1 Pro CD, and offered you 50 dollars and an exact copy (no issues of reliability) of that CD, that you would not trade? The only possible reason would be for support and literature.
I suspect Cygnus was a good acquisition, however they're not terribly relevant to this argument. Cygnus was doing speciality consulting and what not, that is an entirely different animal than selling shrink wrapped support agreements with their CD. Likewise, the consulting firms you mentioned are vastly different as well.
There are no direct parallels to RedHat's proposed business model. So without wasting many more words, let me put it to you like this: We are both intuiting the vast majority of these arguments. The combination of my experience, education, and perspective leads me to different conclusions than you. There is no concrete answer here. If you find this argument tiresome, then let time tell. Otherwise, if you have any new information to bring to this argument, i'll be willing to listen. In the mean time, i'd rather short redhat then buy them.