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Patents Hardware Technology

Ask Slashdot: Open Patent Licenses? 96

Posted by timothy
from the when-you-want-to-giveth-and-taketh dept.
felipe13 writes "We are working on a new piece of code that will be protected under a GPL license, this is fine for the code itself, but what about our 'innovations'? Are there any 'Open Patent License' models similar to the GPL or Creative Commons? We have Google patenting the highlight of search occurrences, Facebook protecting the word 'Book,' and Apple registering body movements. This is becoming ridiculous to a point. Now the patent trolls are making a killing as well. Does the open source community has a good way to protect its innovations and inventions? There are some initiatives to buy patents and release them to the public or at least place them is a protected area, but where would my very small company register a new way to include titles in a private message? Where could Drupal patent the use of 'hooks' to let developers interact with the core of the application? (If they invented this, I am not really sure.) I don't want to wake up in 10 years and discover that X huge company patented my innovation and that now I actually have to pay them for it." There's OpenPatents.org, there's the Open Source Hardware and Design Alliance, there's CERN's newly-updated Open Hardware license, and there are domain-specific patent sharing organizations like the Open Patent Alliance; what else is out there?
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Ask Slashdot: Open Patent Licenses?

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  • Patent it (Score:4, Informative)

    by sakdoctor (1087155) on Thursday July 07, 2011 @01:54PM (#36686148) Homepage

    GPL is based on copyright which is automatic.
    Patents are not automatic, so you need to patent your invention, and worry about (free) licensing afterwards.
    If you wanted something more BSD-like, publish without patenting.

    • by AvitarX (172628)

      I'm surprised to not see gpl3 liste d.

      It did a few things, but patents was the one that made the most sense.

      (I think the clause to prevent what MS did with selling is the worse, and likely un-enforcable).

      I'm ambivelant on the tivoisation clause, but the sueing for use of a patent in software revoking a license is very good.

    • by poetmatt (793785)

      I don't get why open innovation network [openinventionnetwork.com] wasn't mentioned? That's pretty much defensive patent licensing for free, and clearly defined.

    • by Ruke (857276)

      Copyrights are expensive, need to be filed, and don't really do much until you sue someone for violating your patent. An "Open" patent doesn't make much sense; who owns the protected innovation? Everyone? Who can be sued for using it? No one? People who use it in non-GPL'd code? Who is going to initiate the lawsuit?

      Prior art, not prior patent, is what kills a later, competing patent. However, both cases are handled exactly the same way: through expensive lawyers. In this case, even when you're in the right,

      • Patents are for processes, trademarks are for logos, copyrights are for content. The first two cost money and are a laborious process, while copyright is free and happens automatically (though you should use some sort of dating system to prove first rights; people used to send themselves their manuscripts in the mail and leave it unopened to use the postmark for that very reason).
    • First not only am I not your lawyer, I'm not a lawyer at all, so this isn't legal advice; if you have questions like the above you probably want to go talk to the FSF or SFLC who are quite likely to be willing to arrange cheap legal advice.

      What sakdoctor said is probably true that we need people in the free software community who actively patent. Having patented it however, the licensing not be like the GPL. You also don't want to get involved in people like the Open Patent Alliance. They seem to be a

      • in copyrights, copying is relatively cheaply and efficiently proven and so people respect them by default

        Is lack of copying also "relatively cheaply and efficiently proven"? Say I've written a song. How do I know whether I am the legitimate author or whether it's an unauthorized derivative work of something I had heard in grade school?

        • Is lack of copying also "relatively cheaply and efficiently proven"?

          When sued by a corporation in the USA your only hope is a SLAPP lawsuit. Otherwise I guess it's going to cost.

          Say I've written a song. How do I know whether I am the legitimate author or whether it's an unauthorized derivative work of something I had heard in grade school?

          You know that because you know you didn't copy. This may or, more likely, may not help in court.

    • by pavon (30274) on Thursday July 07, 2011 @02:54PM (#36686798)

      Alternately, if you wish your invention to be in the public domain, you can file for Statutory Invention Registration [uspto.gov]. This will cause the filing to be in the USPTO database and thus more likely to be found during a prior art search for future patent applications than if it was just published in a journal.

      • What the parent poster says is correct. Also, SIRs are cheaper than filing a regular patent application.

        The pending patent reform bill would eliminate SIRs, however, probably in part because publication is automatic at 18 months. All published patent applications go into the searchable database that examiners use.

        If you file a patent application (not a provisional, mind you), it will publish 18 months later as long as you satisfy various formal requirements at filing (payment of fees, properly executed de

  • by bennomatic (691188) on Thursday July 07, 2011 @01:54PM (#36686150) Homepage
    The thing that kills patents is prior art. So if you're releasing something to the public domain, make sure to document every step of the way, everything that is potentially patentable. If you invented it first, then with proper documentation, nobody else can patent it...

    ...at least until the new "whoever files first" rules go into effect.
    • ...at least until the new "whoever files first" rules go into effect.

      I do not think that is the case. I believe that under both "files first" and "invents first" prior art can cause the patent application to fail. I think the individual hurt by the move to "files first" is the inventor trying to work in secret, trying to postpone filing for the patent in order to maximize the number of years on the market during patent protection and minimize the number of years under development during patent protection.

      • by spikenerd (642677)
        I call BS. Yeah, I know that prior art isn't the problem they're trying to solve with this new first-to-file rule. I know they say these new rules won't prevent patents from being invalidated. And I'm sure that these rules will be applied precisely for the intended purpose--after all, surely no one would ever try to abuse the patent system for monetary gain without actually contributing to science or the useful arts. But IRL, they're calling it "first-to-file", and the only assurance we have that prior art
        • by hoppo (254995)

          Well that... and the law. First-to-file vs. first-to-invent and the prior art obstacle to getting a patent awarded are two wholly different segments of patent law.

        • I smell disingenuity.

          That's funny. Most people use their eyes, rather than their nose, to read pending legislation. You did read it before jumping to conclusions, didn't you?

      • by goodwine (42967)

        Under the current patent statute, 35 USC 102 a person can get a patent unless "the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent..."

        Under the version recently passed by the House, a person can get a patent unless "the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effec

        • Under the version recently passed by the House, a person can get a patent unless "the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention..."... Instead of being "know or used" it has to be printed, patented or "otherwise available to the public."

          No problem, create a small ad that describes the invention. Place that ad in your local newspaper. The letter of the law cuts both ways.

    • by LionMage (318500)

      IANAL, but my understanding is that even if/when the U.S. switches to a "first to file" system, prior art will always remain relevant... it just complicates things because you have to establish that the prior art exists before the filing of the patent, not before the "inventor" claims to have invented the innovation. I guess one could argue this standard would be easier to meet since the act of filing a patent typically comes well after the process of inventing something, except maybe in the case of so-cal

      • That said, I'm really unhappy about the U.S. seriously considering moving away from the "first to invent" system. Yes, our system is more litigious, and therefore one can argue it's more costly, but also seems less fair if someone legitimately did invent something first but couldn't afford to beat the other guy to the patent office.

        If he can't afford to file first, then he certainly can't afford to defend his patent. He should have published the idea. If he was planning to keep the idea secret instead, then I'm afraid to say that this is an example of the patent system actually working and achieving it's main aim; to encourage inventions to be published.

    • It is also necessary that you can prove the date of documents related to the invention.

      So I would suggest that the documents need to be public on the web (so they can be archived by the Internet Archive)
      and/or run through a timestamp server to get a timestamped digital signature associated with each document.

      • One method I've seen is for people to make copies of important documents, seal them and ship them via certified mail. It's not foolproof, but I've been told (no official citation) that it is defensible in court.
    • by Patch86 (1465427)

      My understanding of "file first" (IANAL and all that jazz) is that if a "pre-filing inventor" comes forward, the "filed" patent still becomes invalid (as the pre-filing inventor counts as prior art). The only difference is that currently the pre-filing inventor would be awarded the patent instead (as he proves he invented it first). In a "file first" system, he doesn't get a patent- the patent is just struck off, never to be repeated.

      If I've understood it right, that sounds like the better system as it thin

      • Ah, that does sound like it has some advantages. I hadn't understand the "struck off, never to be repeated" aspect of it.

        Now if only something could be done to reduce the benefits to trolls who buy up discarded patents just to file suits, never producing new knowledge nor any products...
    • by swalve (1980968)
      Or, patent it and don't sue anyone.
  • contradiction in terms... circuits overwhelmed... head exploding
    • by tepples (727027)
      That's what they thought about "open copyright licenses" when the GNU General Public License first came around.
  • As maybe "innovations and inventions" in software if you're not a huge mega corp is incompatible with being in the the US anymore.

  • Just release it. Once public, it become prior art and cannot be patented by someone else. After a period of time (~ one year), you can't patent it yourself anymore either.

    You know, for a website that loves to pontificate about patent law every 10 minutes, Slashdot and its editors sure don't seem to know jack shit about the subject..."

    (DISCLAIMER: If one of the various "patent reform" bills makes it through Congress and becomes law, and the U.S. moves from a "first to invent" system to a "first to file" s

    • by h4rr4r (612664)

      First to file has no impact on prior ar., It only impacts in the case of two inventors who claim the same invention.

    • Don't just release it. Write something up and get it published in dead tree form. You need to be able to show that your product on such and such a date implemented your invention in such and such a way. If no ones knows how your product works then first to file may screw you. Think of it as preparing evedence for an eventual court case. There are 'scholarly' journals that will print your article if you pay them.
    • by radtea (464814)

      Just release it. Once public, it become prior art and cannot be patented by someone else.

      Unfortunately this is not the reality. The reality is that once a bad patent is granted--which poor quality patent examination in the US seems to allow to happen with depressing frequency--it is difficult and expensive to invalidate it. There are moves afoot to allow for prior-art submissions by the public earlier in the process, but really, do you want to spend the rest of your life keeping an eye on every patent application that may have your innovations as prior art? The clowns who do this stuff profe

    • by Ironchew (1069966)

      Software patents are a complicated dance, optimized and perverted (from the original purpose of patents) to increase the barriers to entry for competing software developers. The notion that patents can be countered by prior art is flawed in the world of software for several reasons, not the least of which is a dedicated corporate legal team finding other existing patents to pin on you. The pressure to cross-license with a huge corporation reinforces this barrier, and few individuals have the time and money

    • by jedidiah (1196)

      ...yes, because stuff "being out there" works so well now.

    • If you file for a Statutory Invention Registration (or file for a patent and drop it after 18 months), then your filing will be in the USPTO database and thus more likely to be found during a prior art search for future patent applications than if it was just published in a journal.

  • where you might wish to consider basing your open-invention-based business.

  • by Anonymous Coward

    An engineering teacher of mine once told me of the "Poor Man's Patent". It is pretty air-tight and really cheap.

    As mentioned before, document heavily through the whole process, an periodically send your documentation to yourself through USPS. Because USPS is a government agency, the date stamp on the envelop is considered legit. All you have to do is know what is inside each envelope and DON'T OPEN them. If who came up with the idea first ever came into question, just make sure you present the envelope to a

  • Where could Drupal patent the use of 'hooks' to let developers interact with the core of the application? (If they invented this, I am not really sure.)

    No they did not. Hooks [catb.org] are ancient. [gnu.org]

    • by felipe13 (2351744)
      thanks, see that is one example, it could be nice to have those things registered, not with the same intention as a patent, but it can even be a great way to learn stuff and make better software.
  • So why not just publish it, making it prior art? Or maybe what you want are Trade Secrets? [wikipedia.org]
  • Thanks to everyone for the great input, what I am getting is that we can be fine with just publishing it and having some piece of mind that our innovations (if there are any) will be protected. presidenteloc: our business model will be based in Costa Rica I guess, which is where we are located. I don't think that we can talk about just one legislation, which is part of the problem here, the us may change the rules, but what about the rest of the world? UE I guess will not give much problems, but there sho
    • Be sure to use the GPLv3 license [fsfe.org] if your primary goal is to perpetuate the openness of the patentable attributes of the work you release and its derivatives.

    • by pavon (30274)

      Do I HAVE to register my inventions?

      Whether you do or not, the published work still counts as prior art. The main difference is when that prior art is applied. Registering your invention will make it more likely that the patent office will notice the prior art when someone else tries to patent the same idea and thus more likely for that patent to be denied. If you just publish in a public place (even a reputable journal), then the patent office probably won't see that prior art, will grant the patent, and you could be sued. Your published doc

  • If you mean keep something from being patented or least being well enforced later then yes, just publish your source code. It then becomes prior art.

  • Well, if you did something that is open source, it is released into the wild, right? That makes it prior art. So your defense is that their patent is invalid if it happens more than a year later. But under the current house bill (H.R. 1549) which is now in the Senate for approval, users who were making commercial use of the invention more than a year prior to the filing date of the patent, even in secret, are protected. Also, the status of prior public use or publication is stronger under the first-to-file
  • How about filing regular patents and refrain from enforcing them against others in the F/OSS community, just like Red Hat does [redhat.com]?

    Unfortunately that does require plenty of cash for litigation if a big corporation decides to challenge the patents anyway.

  • Then use the patent(s) as leverage to go after companies that don't honour the GPL. For everyone else grant a blanket licence to use the patent provided they honour the open source licence properly.
  • The idea behind the Open Patent License is for owners of patents (and non-patent IP that still ends up behaving like patents from a practical real-world extent--amazing how that actually happens) to be able to license them in a copyleft-type manner, ideally handling more than just the software patent situation.

    The goal is for all players to be able to participate in a growing patent pool and have open and free access to this pool under copyleft-type conditions, whether they're small players or larger player

    • by felipe13 (2351744)

      Hello Mark, great to see you here.

      I did look into your project, but I was not very clear about how it works or if it was updated.

      I will get in touch with you and see if we can cooperate.

      Thanks.

  • IMHO, you need to talk to a lawyer (sometimes before you even start the project so you don't waste your time), I doubt a good one would charge you unless s/he had to file the patent themselves (lawyers file the majority of these) and if you find the right ones, they deal with it as a large part of their living (ex. defending a patent). What you may find is things get handled on a case to case basis with patents because of all the complex rules and regulations surrounding them.
  • Release your product everywhere but the US. That is the only way to avoid the Trolls. If enough people do that, maybe the situation will change.

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