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Tandberg Attempts To Patent Open Source Code 187

An anonymous reader writes "As if the current situation with software patents wasn't bad enough, it appears a new phenomenon is emerging: companies are watching the commit logs of open source projects for ideas to patent. In this case, Tandberg filed a patent that was step-by-step identical to an algorithm developed by the x264 project — a mere two months after the original commit. The particular algorithm is a useful performance optimization in a wide variety of video encoders, including Theora."
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Tandberg Attempts To Patent Open Source Code

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  • Re:First to Invent (Score:5, Insightful)

    by Anonymous Coward on Friday November 26, 2010 @10:02AM (#34349586)

    Sounds like a great idea. That will be $10,000 (about the bare minimum to file a patent and prosecute it through issuance).

  • by Kjella ( 173770 ) on Friday November 26, 2010 @10:48AM (#34349878) Homepage

    How much further can you get without getting a lawyer, filing a lawsuit and start subpoenaing evidence? It's exactly the same algorithm, and if you don't want to spend $100k on a patent litigation case than naming and shaming is as close as you'll get. If they pull a defamation suit, then you can bring in the big guns yourself.

  • by unity100 ( 970058 ) on Friday November 26, 2010 @10:50AM (#34349898) Homepage Journal
    actually to the contrary, in this case you have no possibility of competing. they have a larger capital to buy stuff, larger capital to sue you, larger capital to pre-patent everything conceivable ahead of you.

    at this state, we are at the dawn of intellectual feudalism age. in such an age, there cant be any small companies or inventors. anyone would have to be subservient to whomever has the biggest capital.

    the parallels in between the current situation, and the early middle ages in which feudalism has formed, are uncanny.
  • by king neckbeard ( 1801738 ) on Friday November 26, 2010 @10:58AM (#34349966)
    The problem is that big companies have patents too. They have the resources to get more patents than the small companies, and unless they are completely stagnated, it is giving them a stronger competitive advantage than without patents. Without some kind of patent system where acquisition of patents is somehow more difficult for large companies than startups, I don't think there's a way to not have a patent system generally tip the system in the hands of the big companies more than a system without patents. Non-practicing entities can avoid this trap, but that's usually not where the big money is at, and it does nothing to provide actual competition to the market.
  • by Steeltoe ( 98226 ) on Friday November 26, 2010 @11:00AM (#34349982) Homepage

    For smaller companies, you're taking a huge risk developing anything, but for the big corporations, who bought these laws in the first place, this ensures less competition, less innovation and higher bar of entry to market. It's perfect, so for them the system works fine, and thus they won't be doing anything with it.

    If the unfairness was aimed at huge corporations, the patent-system and copyright-laws would be gone within a few months or a year. I have no issue with the trademark-laws, and copyright might work out when we have something like GPL. However, the patent-system is such a big beast, it's continual existence is assured because of it, not in spite of it.

  • Re:Public domain? (Score:3, Insightful)

    by Steeltoe ( 98226 ) on Friday November 26, 2010 @11:05AM (#34350022) Homepage

    No, but you can patent any extention of something in public domain. In most cases, you can just reword the patent a little here, and include some differentiation there, and whoopie, suddenly it's an innovative piece of patent, ready to slay all other ideas that even resemble it!

    You can't patent something already publicaly disclosed, however, it's still possible to create a minefield of patents, who someone sooner or later, is bound to step on at least a dozen of them.

  • by Dunbal ( 464142 ) * on Friday November 26, 2010 @11:16AM (#34350122)

    I'll concede that point, although today's laws have deviated and perverted so much what was intended that "IP" today bears very little resemblance to what was "protected" 200 or more years ago.

    I remember going to museums as a kid and being told that I wasn't allowed to take FLASH pictures because, of course, the repeated flash of thousands of tourists' cameras every day would eventually degrade the pigments in the paintings. Now you are told, with flashless digital cameras because the museum just doesn't want you to, and they'll feed you some completely false copyright or IP garbage as an excuse. I believe the copyright on a Rembrandt expired a long time ago.

  • by Kjella ( 173770 ) on Friday November 26, 2010 @11:25AM (#34350196) Homepage

    Those who get the reward, however, are the ones willing to make the effort to develop their ideas.

    No, it's those that are best at ripping off creative people by putting it in their own product and kill them on margins and market power. You put down long hours actually doing product development, only to find yourself overrun by cheap clones that have done nothing but pick your product apart and copy it. I remember that happened to one company around here, it was a good idea, they actually had product on the market for one season produced locally and sold well, very far from "a flash of inspiration in the shower".

    Next season a bigger company had taken their design, changed it just enough to not be a direct copy and fired it off to some low-cost country and flooded the market. Could they have won a lawsuit? Maybe, but when you're a failing startup due to lack of sales that's then even winning is losing because you can't take the short term cost and with appeals even just for the sake of appeals it can take forever. It's just that patent law is woefully ineffective at actually protecting real innovators and serve large companies with patent lawyers on staff and the deep pockets to kill startups that can't or won't play ball. But it's not like everything would be fine without patents either.

  • Re:First to Invent (Score:5, Insightful)

    by postbigbang ( 761081 ) on Friday November 26, 2010 @11:28AM (#34350216)

    Tandberg, a unit of Cisco, tries according TFA, to patent someone else's open source code; that someone else is the complainer in the link.

    Should he be unhappy? Yes. Is this person trying to patent open source code per se? No. Instead, it's this person's code. Should he sue? Probably. Should Tandberg be laughed off the planet? Certainly. Is the filing one year late? No, not by Tandberg's math. Does the prior art count? It would seem so. And the patent application ought to be denied for that reason-- prior art.

  • Re:First to Invent (Score:5, Insightful)

    by wierd_w ( 1375923 ) on Friday November 26, 2010 @11:53AM (#34350402)

    In an environment where everyone is "looking for _their_ share", especially in modern america (if I had a nickel for every time I heard some slob demand "his" bailout when the fed bailed out the bank and loan sector, I'd be as rich as bill gates by now.), you end up with a situation where instead of just shaking hands and working together for a common future, you have all these players trying to screw each other and everyone else with exclusivity contracts, patents, copyrights, trademarks, and all that filth.

    If it is even remotely valuable, there is an impetus to patent it, so you can hoard it like troll, then demand payment for its use.

    For these people/this mindset, the idea of an open commons is an anathema; Cooperation is a sign of weakness in their eyes, and "giving away" something so obviously useful is something that only suckers do. They are used to "Dog eat dog" dealings, so the idea of "We dont mind if you fork our code, as long as you comply with the GPL" is uncomfortably alien to them. They operate on the model of exclusivity, and freedom is the exact opposite of that.

    Naturally, if they can simply steal what you are making, and transform it into an exclusive (such as a patent), they WILL. They are more comfortable with exclusives that they own (legitimately or not, it doesn't matter) than they are with shared commodities that they do not. Why do you think there is such a push away from an open internet and toward a tiered one where everyone pays and charges tolls to route traffic by these people? Exclusivity. "Pay me or else."

    For what it's worth, I agree with you-- Not everything should be patented, not everything should be lorded over by some troll with a sense of entitlement, and not everything should be divvied up and spoiled for profit. Sadly, as the saying goes, "Money talks, and bullshit walks". It would seem that the people stealing FOSS innovations like this feel the GPL is "bullshit", as evidenced by their actions. (Personally, I think the idea of the thing scares them. If FOSS groups started amassing patent portfolios, they would cry foul with every regulator you could think of.)

  • by Just Some Guy ( 3352 ) <> on Friday November 26, 2010 @11:58AM (#34350440) Homepage Journal

    Take note, pro-RIAA patsies: if this story is true, then it's a case of actual IP theft. That is, Tandberg would actually have deprived the original authors of the use of their own work, in this situation by making it illegal for them to continue distributing their invention.

  • Re:First to Invent (Score:3, Insightful)

    by masmullin ( 1479239 ) <> on Friday November 26, 2010 @12:28PM (#34350620)

    you need patent and copyright reform in the US.

    Hell, you need to fucking cut down ALL your laws and get back to your constitution.

  • Re:First to Invent (Score:4, Insightful)

    by wierd_w ( 1375923 ) on Friday November 26, 2010 @12:32PM (#34350640)

    If it were within my power, I would nuke the DMCA from orbit and reinstitute the original copyright and patent rules from the first US congress. (the ones that have a 20 year max term, and require physical inventions for patents)

    I agree. My country's insanity with intellectual property needs to be sharply corrected. (however, doing so would nuke our economy from orbit. Corporate greed has destroyed our industrial infrastructure, and now "IP" is the only major world export we make.)

  • Re:Excellent (Score:5, Insightful)

    by AmberBlackCat ( 829689 ) on Friday November 26, 2010 @01:09PM (#34350928)

    More companies should do the same, patent everything until the whole thing collapses into a gigantic innovation blackhole.

    I think that's already happened. We already can't build anything in America without a lawsuit.

  • by Anonymous Coward on Friday November 26, 2010 @01:22PM (#34351046)

    Isn't IP theft completely legal as long as a big company steals from an ordinary citizen?

  • by Compulawyer ( 318018 ) on Friday November 26, 2010 @02:05PM (#34351320)
    I speak assembly and also speak patent claims. All I said was that you ("you" in the generic sense - not necessarily targeted at the individual who posted the parent comments) cannot imply wrongdoing from the evidence presented so far. It is completely insufficient.

    What is better is to proceed down the path you have identified. First, compare the claims and the specification to the previously published code. Next, I would want to see proof that the named inventors (or those working with the inventors) had access to the code. THEN you are beginning to put together a case.

    It is possible for two people to invent the same thing around the same time - especially in this field where people are working with or building on published standards. The USPTO has a special proceeding - called an interference - that is all about determining which of two or more inventors was the first one to invent something and is thus entitled to a patent.

    All I am saying here is that you should have a complete set of facts before making accusations like this.

  • Re:First to Invent (Score:3, Insightful)

    by knarf ( 34928 ) on Friday November 26, 2010 @03:12PM (#34351838) Homepage

    The most important step is therefor: Get a good lawyer

    And thus the leeches feed again, and thus the cycle continues...

    The aim of the game should be to get the lawyers out of the software development process. I see why you give this advise to an individual but it does not help the community unless that lawyer is good enough to pull down the whole software patent house.

Who goeth a-borrowing goeth a-sorrowing. -- Thomas Tusser