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Ask Slashdot: Using Code With an Expired Patent? 139

Posted by timothy
from the warm-up-the-mechanical-lawyer dept.
kruhft writes "I was recently doing some research into Genetic Programming and found a library through a blog post that looks to be useful. After looking over the code and license, I found that this was the first piece of code I had seen that was protected by a patent, issued on June 19, 1990. I read that patents last for 20 years, meaning that the patent that this code refers to is expired. Is there any way for me to be sure that using this code is safe from any patent troll attacks if I choose to use it? Would rewriting the code keep me from violating any other patents that the author might have regarding the use of such an algorithm? Does the code pass into the public domain after the patent expires?" Note to Chrome users: the above link ("a library") works for me in Firefox, but not in Chrome on Linux; YMMV.
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Ask Slashdot: Using Code With an Expired Patent?

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  • by Anonymous Coward

    The original Koza stuff? I can't imagine how useful that would be in these modern times, but you know your problem better than I do.

    What I can tell you is that Koza never stopped working on it, so even if the exact code you're looking at isn't covered by patents, whatever you adapt it to do might be covered by a different patent that was assigned after that date.

  • by daedae (1089329) on Monday August 01, 2011 @07:24PM (#36954008)

    A patent covers the method, not the implementation. If the patent is expired and the code is not covered under copyright, you can use it. If there are other patents that cover it that aren't expired, then you'd still be exposed to trolling.

    (IANAL)

    • by PatentMagus (1083289) on Monday August 01, 2011 @07:35PM (#36954126)
      Yes, daedae has it right except for a few omissions. A patent that issued in 1990 would indeed be expired today, so you don't have to worry about that patent. However, there may be later patents, perhaps even a submarine patent, lurking in wait for you. Furthermore, you are never safe from patent trolls.

      Copyright is probably your biggest issue though. Simply rewriting the code doesn't always work unless you take some type of positive step to ensure that the new code is "clean". For example, do not just go through the old code changing variable names and cleaning things up here and there. The folks that do clean implementations 'for real' will actually hire programmers and give them specifications but absolutely no code or psuedo-code. A little more googling may turn up another implementation. Genetic algorithms and programs were all over the place 20 years ago.
      • by godrik (1287354)

        Well, there can not really be *later* patent, since the code itself would be a prior art to that patent. (Assuming the code has not changed since 1990.)

        • Re: (Score:3, Informative)

          by eh2o (471262)

          There can be a later patent that contains an improvement on on the first. It is derivative work but contains some novel aspect. If that improvement is used in an implementation then it is in violation of the later patent subject to the later priority date. Usually one can find these derivative works by searching the USPTO for citations to the first patent.

          • by sjames (1099)

            Sadly, you are correct. The fact that you ARE correct puts the lie to the claim that patents result in meaningful disclosure since such a disclosure is likely poisoned for years after the patent expires.

        • Wrong. Enhancements to a previous patent are routinely issued.

        • Well, there can not really be *later* patent, since the code itself would be a prior art to that patent. (Assuming the code has not changed since 1990.)

          Not true - there could be one or more continuation applications, claiming priority to this patent. As a result, this patent would not be prior art.

          Incidentally, the laws have been changed to solve this particular problem (submarine patents), but patent applications filed prior to 1997 are grandfathered.

      • "I am a lawyer, but not yours. Anything I tell you might be a total lie intended to benefit my clients at your expense."

        Most honest thing I have ever heard from a lawyer.

        • Most honest thing I have ever heard from a lawyer.

          No; actually it's a trick. His ethics code means he can only dissemble, mislead and omit. Now that he has you believing that he tells total lies he can tell you something truthful and get you believe the opposite.

          :-) (I hope/wish)

        • I'm certain that if you've worked with a lawyer before, you've received a bill that was the complete and whole truth. At least the promise to take you to collections if left unpaid had to be honest.
      • The folks that do clean implementations 'for real' will actually hire programmers and give them specifications but absolutely no code or psuedo-code.

        Yup, that definitely sounds like the Chinese Wall technique. Quite successful in... China :)

      • by Z00L00K (682162)

        A way around this is to provide the whole solution in a country where software patents aren't valid.

        It's up to whomever that's downloading the code to consider if there may be a patent that's applicable or not, but it's not your headache.

  • No (Score:5, Informative)

    by bmo (77928) on Monday August 01, 2011 @07:25PM (#36954020)

    >Is there any way for me to be sure that using this code is safe from any patent troll attacks if I choose to use it?

    Short answer: No
    Long answer: There are duplicate patents of everything out there. This was explained in the This American Life episode 441. http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack [thisamericanlife.org]

    Solution:

    Stop looking at patents, you idiot. Actively looking at patents and then violating someone's patent means that you "knew or should have known" of the other patent, infringed on it deliberately, and are now liable for triple damages. This is in contrast to "incidental" infringement of someone's patent.

    --
    BMO

    • Did you know there was a ruling this year that actually said that NOT looking made one liable for triple damages? Damned if you do, damned if you don't. I'm still searching for the article that mentioned this but IIRC this happened in May so it's not widespread as of yet...

      • by yuhong (1378501)

        I think the recent patent reform act in the US tries to clean up this mess.

        • Re: (Score:3, Insightful)

          by darkchubs (814225)
          Pffffft, The bill is so watered down it does nothing good and a some bad. Reform was going to include patent validity in trial, this would have helped flush the crud out of the system... but our overlords couldn't decide if that was good for them or not, so it fall away.
      • by pete6677 (681676)

        So look, but don't look so hard you'll actually find something.

        But seriously, there is NO way to develop any software that is the slightest bit useful without violating someone's patent. Hell, we're probably all violating patents right now by transmitting "text for the purpose of public discussion - using a computer".

        • Yep... The only way these days plagued by patent trolls to do something new is packing a big gun, several bullets and shoot any lawyer that comes claiming that you infringed his patents.

          Because if you play nice, you will can't even take one single step without bumping into someone's patent.
        • "What do you mean how? I don't know, like... look casually."
      • Did you know there was a ruling this year that actually said that NOT looking made one liable for triple damages?

        No worries, I didn't look at that either.

    • by snowgirl (978879)

      Stop looking at patents, you idiot. Actively looking at patents and then violating someone's patent means that you "knew or should have known" of the other patent, infringed on it deliberately, and are now liable for triple damages. This is in contrast to "incidental" infringement of someone's patent.

      While this the default good advice regarding patents, I don't think he went out of his way to find this patent, because he likely has seen tons of code that is patented, this is just the first that he's aware of. Which makes me think that the notice was in the code. Which is actually a good idea for patented code. "They copied my code, which includes a patent notice, which means that they were aware that it was a patent violation, and therefore open to triple damages."

      (Note: although the above code might im

      • Re:No (Score:4, Informative)

        by WidgetGuy (1233314) on Monday August 01, 2011 @08:23PM (#36954518)

        Indeed, there was mention of not one but three patents in the header comments of the CL source file (the "a library" link in the /. summary). To wit: "...is the subject of my United States patents 4,935,877, 5,136,686 and 5,148,513, foreign counterparts, and other patents pending."

        In addition, that same file contains a clear copyright notice.

    • Re:No (Score:5, Interesting)

      by PRMan (959735) on Monday August 01, 2011 @07:41PM (#36954166)

      Which turns the entire patent system on its head. The whole point of patents was to publish the invention so that people could look at it, decide if they wanted to use it (or find a way to compete with it) and then license it or go around it. All of this fosters innovation, since those that look at it and license it are quicker to market and those that compete increase competition.

      The whole "treble damages for willful infringement" nonsense just proves that the patent in question was not a novel invention that couldn't have been easily copied by another design team without even looking. Because it just was copied by another design team without even looking. And why even publish patents if nobody is allowed to look at them? The whole point was that people would use the publications to get ideas of things to license. That's also why you were supposed to put your patent # on your useful invention, so that other people could know how to look it up.

      • by Anonymous Coward

        That's also why you were supposed to put your patent # on your useful invention, so that other people could know how to look it up.

        Really? I honestly thought is was a "don't copy this or I'll sue your ass off for infringement" warning; like the "Patent Pending" folks like to put on their stuff.

      • Re: (Score:3, Insightful)

        by Grishnakh (216268)

        The whole point of patents was to publish the invention so that people could look at it

        The late 1700s are calling and want you back.

        The whole point of patents now is to provide a legal way for large corporations to block competition from smaller competitors using the court system.

      • The whole point was that people would use the publications to get ideas of things to license.

        No, the point was to get inventors to publish how things work. In exchange they were given exclusive rights for a number of years. This is the first I've ever heard of the unfortunate wording you chose (get ideas of things to license). The point was to spread know-how. The sacrifice was limited exclusivity.

        • The whole point was that people would use the publications to get ideas of things to license.

          No, the point was to get inventors to publish how things work. In exchange they were given exclusive rights for a number of years. This is the first I've ever heard of the unfortunate wording you chose (get ideas of things to license). The point was to spread know-how. The sacrifice was limited exclusivity.

          Yes, and the point of getting inventors to publish how things work was to make sure that inventions were not lost (this post is in no way intended to contradict the post I am replying to, merely to amplify something he seems to be aware of, but did not explicitly state). This means that when someone has an obscure patent and five or six people independently duplicate it, it is obvious enough that it should not have been patented in the first place.

      • Because like copyright it went from being a tool that fosters innovation and creativity to one that reaps huge monetary rewards at the expense of innovation and creativity.
    • Hey, did you pass around an TAL recommendation before? That is, months ago? Someone on Slashdot did, and since then it's pretty much become to be my favorite podcast (and despite the name, it's easy to relate to as a European). Just wanted to say thank you to whoever it was. ;)

    • Pretty much this is the right answer. Patents only serve to exclude. The fact that you aren't covered by one patent doesn't give you the right to use the subject matter; it only means that that patent will not be a problem. The OP is considering a freedom to operate study, which is much more intensive and requires a search and review of all relevant patents. That's costly because the team of lawyers doing the paper has to cover their asses.

      If you create your own code without looking at anyone else's code, t

    • Assuming you can prove the code is 20 years old either patents used in the code have expired or later patents are invalid due to prior art that would hard to ignore.

      Unless the code modified to include new patents he should be safe?

    • There cannot be valid duplicate patents on anything. See 35 U.S.C. 102.
    • by Grond (15515)

      "Knew or should have known" is not the standard for willful infringement. Since In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007) [google.com] the test for willful infringement has been recklessness. That is, "to establish willful infringement, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent." 497 F.3d at 1371. That is a higher standard than it was pre-Seagate, when the standard wa

  • by nzac (1822298) on Monday August 01, 2011 @07:26PM (#36954040)

    You will have to rewrite the code to avoid copyright.

    You could ask him if you can use the code if it was never used for anything profitable he could be a nice person and let you credit him.

    • He already grants a free license to academia...follow the links
      • by nzac (1822298)

        I assume he read that much of licence but its not the most permissive licence ever. From my reading anyone else wanting to use the code would have to apply for the licence and then apply his changes. If he wanted to do anything useful with the code apart from producing some figures for a journal then the licence is pretty useless.

  • Relying on Slashdot for legal advice ? Not wise.

    • by snowgirl (978879)

      Relying on Slashdot for legal advice ? Not wise.

      This. More so, specifically, don't assume that since the disclaimer says they last 20 years that that means that it has expired. I could put a disclaimer that says that the patents last for only 5 years, then you go "oh, it's not patented anymore!" And reimplement it, and then I sue you for knowingly violating my patent. Why? All because you took legal advice from the very person you would end up being a defendant against.

      • More so, specifically, don't assume that since the disclaimer says they last 20 years that that means that it has expired.

        Well, this is something that can be verified outside of whatever disclaimer is in the code. In this case, though, it isn't quite right. A patent that issued in 1990 would be valid for 17 years after issue. Patents that issue now are valid for 20 years after filing.

    • Relying on Slashdot for legal advice ? Not wise.

      Paying for a lawyer to tell you he can't actually help you, not wise.

      You'd think computer programmers wouldn't be quite so stupid. I'm researching building codes for secondary suites today, as someone I know is looking at purchasing a nearby property. There's the official act, which is buried behind a paywall. There are also unreliable secondary sources, which I can click through immediately. Should I even bother?

      Here's the thing. Willing to take on the ri

      • by tibit (1762298)

        If you're in the U.S., law must be accessible to all, in its entirety -- this apparently has a long legal history. So if something is a code -- too bad for the organization that tries to bully you into paying, it's your right to get it at your library, and it's your right to copy and redistribute it as you please. This is in stark contrast to, say, Europe, where plenty of directives "include by reference" ISO and IEC standards that cost thousands of dollars.

        For U.S. building law from pretty much every state

  • by Surt (22457) on Monday August 01, 2011 @07:28PM (#36954060) Homepage Journal

    The code is also protected by copyright, which is the real opposite of public domain, and lasts basically forever. The idea is no longer protected by patent, so you can now make your own, clean-room implementation of the idea without violating the patent.

    • by PRMan (959735)
      "Clean room" meaning that it's too late, because you already looked at the code. But if you do rewrite it, make sure you don't have the code in front of you as you do it.
      • I am not a lawyer, but I think you can have it in front of you to make sure you aren't writing any code that looks similar.

        The idea is no longer patented so I think all he has to do is to make sure his implementation doesn't lift chunks of code verbatim.

        • This has missing <sarcasm> tags, right?

          I'm not a lawyer either, but have been through this. As others have pointed out, patents have a finite life but copyright is basically forever. If it gets to court, the only legally safe approach is a standard clean room implementation: one person/group read the copyrighted code and wrote a spec, a non-overlapping person/group wrote all new code from that spec. Be prepared to show your version control history to the court to demonstrate that you started from s
      • Rewrite it in Perl, if they can't read it they can't prove you copied it.

        If the original is in Perl, your defense would be that you can't have copied it, since you couldn't read it...

  • The copyright doesn't expire after 20 years, so you cannot copy the code. You can re-write it, though. As long as you have never seen the original.
    Note that nothing makes you safe from patent troll attacks, but using 20-year old code is as close as you will ever get. Mind you, someone will probably claim that combining two obvious techniques covered in Knuth, written in expired patents, in the same software, is covered by their patent issued last year. Even if you just copied an example from K&R.

    • US Patent documents are not copyrightable. So if the code appears in the patent it is free of copyright.

      • by brusk (135896)
        That makes no sense whatsoever. Something in a patent document could, for other reasons, be copyrighted--for example, I could include a copy of a short story I wrote in a patent application (for example, in explaining how a short-story-rewriting machine worked). Would that deprive me of copyright over my short story?
  • Even if the patent has expired, the code is presumably covered by copyright (which has a much longer term than a patent). You can use the underlying method described in the patent, but you'll have to write your own code implementing that methodology.
  • Patents cover ideas, not implementations. Rewriting the code with the same idea still violates the patent. Rewriting would allow you (maybe, depending on how you rewrite) to avoid a copyright violation claim. But for patents, you are busted no matter what you do if you use the same idea/mechanism as the patent holder. Again, they have power over the invention's premise, not its specific implementation.

    • by PRMan (959735)

      Patents cover ideas, not implementations.

      Actually, patents cover an expression of an idea. They explicitly CANNOT cover an idea, although companies and judges are edging ever closer to that line.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        They leapt like superman across that line many years ago.

      • A patent covers an implementation of an idea. For example, if I created an actual example of a sentient self-driving car, that - or rather, the specific methods & mechanisms I used - would be patentable.

        An expression of an idea would be a story or movie about a SSDC, e.g. Herbie. That would fall under copyright, though it wouldn't cover other SSDCs. However if you used a cream VW Beetle with a 53 on it you might have problems.

        The idea itself? Nada.

    • I think you missed the issue date of the patent. Protip: unlike copyright, patents expire during your lifetime.
      • by Surt (22457)

        I think you misread the ask. He asked how he could avoid tripping over other patents, which might have been issued later.

        Would rewriting the code keep me from violating any other patents that the author might have regarding the use of such an algorithm?

    • Patents cover ideas, not implementations.

      A patent covers an implementation of an idea. For example, if I created an actual example of a sentient self-driving car, that - or rather, the specific methods & mechanisms I used - would be patentable.

      An expression of an idea would be a story or movie about a SSDC, e.g. Herbie. That would fall under copyright, though it wouldn't cover other SSDCs. However if you used a cream VW Beetle with a 53 on it you might have problems.

      The idea itself? Nada. H.G. Wel

      • by Surt (22457)

        That's just not the way the courts are interpreting patent law today. See just about any recent court case on a patent, the idea-holder busts someone using the same idea in a new implementation.

        • I was referring to the law as it's written, and, dare I say, as it was originally intended to be applied.

          Now if some people[1] choose to apply it wrongly then that's not my fault.

          [1] Yes, East Texas, it so happens that I am looking at you. Did you patent that too, you fucktards?

  • also patents != copyrights

  • by OzPeter (195038) on Monday August 01, 2011 @07:51PM (#36954242)
    OK .. seriously RTFL .. it says explicitly right there under what circumstances you can use the code. Did you read it? Did you attempt to contact the Author? Do you need your nose wiped by the /. crowd as well?
  • Verify that a patent was filed, then check with a lawyer. The lawyer should be able to tell you:

    a) if the patent has actually expired

    b) how to reproduce the library as closely as possible to the patent's description without being sued over copyright (over the original library)

    If it has expired and you can reproduce the library without violating copyrights, that patent should be a good defence if someone claims that you violated their patents (on that portion of your code).

  • by Dachannien (617929) on Monday August 01, 2011 @08:01PM (#36954340)

    Patents applied for (or claiming continuity) before 8 June 1995 have a term of either 17 years from date of issue or 20 years from the filing date (or the earliest filing date in the continuity chain), whichever is longer. On or after that date, the term expires 20 years from the filing date (or the earliest filing date in the continuity chain). This is modified by any patent term adjustment printed on the face of the patent, which results from some kinds of delays during examination caused by the USPTO. If the applicant filed a terminal disclaimer in the patent, then they have disclaimed additional patent term beyond the expiration of some other patent because of "double patenting" issues. Additionally, the patentee must pay maintenance fees at 3.5, 7.5, and 11.5 years after the date of issue to avoid abandonment of the patent.

    And that's not even all of the potential caveats related to patent term expiration.

    In this case, of course, the patent in question expired a few years ago at least. A clean room implementation of that patent (to avoid copyright issues) will have no patent hassles arising from that particular patent. There could be other patents covering related techniques or improvements on that same technique that are still in force, although the risks associated with that are similar to the risks faced by anyone writing code these days.

    • Go look at the link, and realize where it goes (i.e. what server at what university), and then read what you wrote and tell me if a major university is going to let genetics code that they hold the patent to, fall into the public domain in the age of Big Pharma? A British university that filed, and got, three U.S. patents... and "foreign counterparts, and other patents pending."
  • The 20 years is not hard-and-fast. For one thing, it used to be 17 years from issue, and I believe in 1990 they used the old calculation method. Now it is 20 years from filing. The 20 years is very often extended using a complex equation that comes out different if you look at it funny. So get a patent attorney to confirm that it's expired, and that there are no other patents that you might be infringing (where there is one...).

  • Write to the guy and ask for his terms for licensing the library. If it's not too expensive, well and good.
    If it's not worth it for your product, you know what to avoid in your own code.

  • That's not just any code you found there. And it's protected by more than one (maybe, probably not) expired patent:

    United States patents 4,935,877 5,136,686, and 5,148,513, foreign counterparts, and other patents pending.

    That's code written by a University of London Computer Science professor, and he didn't pay for those patents out of his university salary. UCL paid for them. I would imagine those patents are quite intact, as large research universities don't often let go of IP like this. Especially genetics code in the age of Big Pharma.

    You won'y have to worry about a troll. You'll get the scientist and

    • That's not just any code you found there. And it's protected by more than one (maybe, probably not) expired patent:

      United States patents 4,935,877 5,136,686, and 5,148,513, foreign counterparts, and other patents pending.

      That's code written by a University of London Computer Science professor, and he didn't pay for those patents out of his university salary. UCL paid for them. I would imagine those patents are quite intact, as large research universities don't often let go of IP like this. Especially genetics code in the age of Big Pharma.

      You won'y have to worry about a troll. You'll get the scientist and the university that hold these patents. Good luck! You're gonna need it!

      *won't...grrr

    • by ledow (319597)

      If that's true then the software patents are null and void anyway, because software patents aren't recognised in the EU. However the UK sometimes does things the EU doesn't like. And sometimes the patent might have expired, sometimes the patent might have been added to and renewed under a different number, and some of those patents are still valid.

      Stop fecking about and if you want to "steal" this code, either get a lawyer or start negotiating with the patent holder. Why on earth is this an Ask Slashdot?

    • by Shimbo (100005)

      That's code written by a University of London Computer Science professor.

      Stanford actually [wikipedia.org], it's just mirrored at UCL.

  • Given that the patent has expired, and the state of software licenses on sample implementations have moved on a lot since the 90's ask the author. Just write him an email or snail mail asking if he'd be willing to license it under a more modern license. Modified BSD, LGPL, GPL or Creative Commons etc which would protect him and you. You'd be surprised how often that works, mainly because most authors hate to see a bit of code go to waste and it's nice to know something you wrote so long ago can be of use
  • I would think that asking a patent lawyer would be the only thing to do. Any advice here is just that, advice.
  • by PPH (736903)

    I'm sure someone has refiled by appending "using the Internet" to the original claims.

  • Read the first paragraph of the license. It's covered by three patents, two of which are still in effect because they were granted in 1992. You have until September 2012 before they expire, assuming no continuations have been granted, and there is still the matter of copyright.
  • Just move to Canada and stop worrying about software patents.

    It's very nice here. As long as I start from scratch (and check licenses on things I do copy/use) I can sleep soundly at night knowing nobody can suddenly go "AHA, you re-implemented something I created 10 years ago, but silently patented without ever using!"
  • You have to be concerned with both patent and copyright. The patent will protect the functionality and structure - and may not be expired. Although 20 years has passed, patents can benefit from term extensions due to delays in processing at the USPTO. These term extensions can last for years, depending on the length of delay. Also, be aware that if in the public domain, the public has the right to use the inventions claimed by the patent (or disclosed but not claimed) - and EXACTLY those inventions. Imp

  • ... and if a patent troll appears threatening you with a "patent" ridiculously broad and obvious, shoot him in the head. twice.

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