Monday, July 02, 2007

Defeating software patents using ideas and the internet

There has been much talk in IT about the evils of software patents, most specifically the stark raving obvious patents that abound. Now looking at the US Patent definitions (the worst of the global ones) the key bit that invalidates a patent is of course Prior Art. Where Prior Art is defined as
known or used by others in this country, or was patented or described in a printed publication in this or a foreign country

Now to me it seems that a blog post can be classified in this day and age as the modern equivalent of a "printed publication".

So here is a simple idea, any time you have an idea, just quickly right a blog post on it. Then in later years you will never think "but I thought of that" when you see a patent application that is just an obvious thing with paperwork. Most of the dumb ideas are things that people either implemented, or thought about, and just didn't bother getting them patented because that would be silly, and didn't even publish the information because it was so obvious.

If every idea that is had is blogged about then rapidly all of the obvious ideas will have clear and documented prior art. You think its obvious that you could use a PVR to create targeted ads? Blog about it, use the technorati tag "prior art" and suddenly there is prior art to cite. By publishing it like this you are clearly saying "I'm not going to patent this idea" and you aren't going to get into some silly license argument. The reason to publish your ideas is because you don't like the current patent regime and you want to get rid of silly patents.

Now clearly I'm not a lawyer, but under the definition of the US Patent Office why wouldn't that count?

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quark said...

What a simple, wonderful and brilliant idea! I might start up a blog for this single purpose (I don't have one yet(!)). I too interpret "known or used by others in this country, or was patented or described in a printed publication in this or a foreign country" to mean that a blog post should be sufficient. IANAL either, though.

Mark said...

Ditto Steve, quark. Perhaps we/someone should start a site with the sole purpose of letting people throw their ideas at it (and hence circumventing patents).

Anyone a lawyer?

Steve Jones said...

That was why I'd suggested using the tag "prior art" on technorati, thus meaning that anyone who wants to see the feed can just subscribe to the technorati feed. Hence everyone can use their own blogs, but you can still get a repository going by using RSS/Atom.

Pete Finnigan said...

This is a great idea. I like the idea that the power of the people could potentially prevent the large giant corps from owning and licensing every idea.

Is this idea tested, are there any cases where patents have been revoked (if thats the right terminology) due to blog or other internet postings of prior art?



Anonymous said... It is not merely throwing an idea out there, and having others find it. Otherwise everything would be patented from every Star Wars movie, etc. The Patent Office does not patent concepts or ideas, but working inventions. The prior art has to be a working invention, fully described so someone who is an expert in the art could reproduce it and have it work as described.

Kronos said...

I don't think a blog would suffice as 'published' as in any court case the patent holder could simply state that the site was created after the patent and of course there is no way a blog can be proven to be made on said date.

Nice idea though, I'd love it if I'm wrong and there are actually cases like this

Steve Jones said...

Anonymous - the US Patent Office (as opposed to the UK one for instance) does allow the patenting of concepts and ideas. The UK requires implementation, proof and doesn't accept abstract things like software or business process, the US does accept business process and software patents. Hence the reason for this suggestion.

kronos, that was the reason I suggested using Technorati, this then gives an additional 3rd party verification of dates. Its not fool proof, but during a challenge it would come down to one word against another, with at least a documented proof. Today there isn't the documented proof.

If this was a good idea it then becomes possible to think of having a simple printing or "secure" PDF solution which creates official monthly snapshots and registers them with an authorised and "trusted" provider.

L. said...

As mentioned, publishing a generalized idea on a blog is hardly grounds for a patent application to be rejected. If I write ten pages about how I'm going to do something, and someone comes across that paper and as a result, makes the contrapation, I have no right to the patent unless:

I was working on making what I wrote about, and that person stole whatever progress I've made by reading my paper without my knowledge, or stealing it, etc.

If I willfully show him my idea (the equivalent of what a blog would do), and there is no written agreement that he cannot use what he's learned to make a competing invention, I can't do anything about it.

Writing about an idea in a blog does not constitute "known or used by others in this country".

Finally, software usually ISN'T PATENTABLE. Algorithms and the like can be patented, and software code definitely falls under the category of business secrets (like the Coca-Cola formula) but SOFTWARE generally falls under the field of copyrights. The reason for this is because once you patent something, it enters the public domain, unless you're the US Government, and release of such information would seriously compromise national security.

The entire premise of this post is faulty...

Taboom said...

Heh.. funny thing is I thought about this same thing - creating a blog for all ideas that spring to my mind. Only problem is, how can I utilize them (for profit maybe) if they are already published and others can use them already?

Steve Jones said...

"I", The US Patent Office seems to think that software can be patented...

"Studies have shown that when our patent examiners have the best data in front of them, they make the correct decision," said Jon Dudas, director of the USPTO. "Examiners, however, have a limited amount of time to find and properly consider the most relevant information. This is particularly true in the software-related technologies where code is not easily accessible and is often not dated or well documented."

The pilot is a joint initiative with the Community Patent Review Project (CPRP), organized by the New York Law School 's Institute for Information and Policy. The pilot will begin on June 15, 2007 and will run for one year.

Technical experts in the computer arts registering with the CPRP website will review and submit information for up to 250 published patent applications. To ensure a broad cross section of computer technology is reviewed, no more than 15 applications will be allowed from any one person or organization.

Existing law allows USPTO to accept prior art from the public, but it doesn't allow the public to submit any commentary related to the art without the approval of the applicant. Thus, consent will be obtained from all applicants whose applications are volunteered and selected for this pilot.

So this is exactly the sort of thing I was suggesting that blogs and tags could be used for.

It might be that it won't work, but software related things not being patentable is not one (e.g. one-click).

Kris said...

This already

Anonymous said...

You may try taking some English lessons.

I wouldn't want to right about patents, write?

Anonymous said...

The person has a feasoniable idea. Seeing that all you can do is stoop to being a petty grammar police. sad.

Anonymous said...

I don't know what language you learned, but "feasoniable" is not a word.

Making a type-o or other error is one thing, but not understanding the meanings of the two words "write" and "right" is another. It just shows a general lack of intelligence, therefore why should I regard his ideas in any sort of good light?

howtoo said...

Hey, I thought of that!

SouL said...

The fact that the only one thing this person pulled out of this entire blog entry/comment section was poor grammar (or possibly a simple typo or some sort of quirky shorthand) is by far and wide, pretty pitiful.

With that said, I think the original blog post has merit, in that someone once said, the system doesn't have loopholes, it was made to be used as such. I think that says a lot in the positive light of this essay. Sure, the internet is becoming more and more a prominent media and personal tour de force. Just look at how much faith banks put into the net? All of our personal and financial information scrambled into a recognizable sourcecode. Simple data, yet it has mass. It has feet, and it has integrity. And I think what the author of this post has is a brilliant idea. Again, he's right, it may not work. But with some of the ridiculous court cases and ludicrous laws that have been thrown and exist, it's not entirely mental to think this would have some bearing from a legal standpoint. Where's a techno-junkie-lawyer when you need one?

KS said...

This idea is already in use, for example check out

Donny said...

If anyone were uneasy about the meaning of a printed publication, someone _could_ print these things, were they licensed favorably. (I'd consider it, however, quite a self-defeating measure, if they weren't.)

Perhaps if a convention print publication WERE spun off from such an idea, income generated by the print publication could be used to fund "researching" obvious ideas (a humorously paradoxical concept if ever there was one.)

Personally it's always made me a little sad, as it seems a sign of what a truly limited scope of freedom the average American beholds, that there are no apparent efforts for the America public to purchase patents from inventors. I mean, obvious and trivial ideas aside for a moment, aren't some ideas better when they're not constrained by intellectual property woes?

Isn't that the quality to which we attribute our outrage against software patents? That software / information technology is exactly the sort of environment in which intellectual properties do more to hinder development than to encourage it?

Just like open source software -- the argument is that free is better. So why hasn't our country and government taken an interest in making it more economically viable for the producers of free ideas (be they software, or otherwise) to continue producing them?

I for one would gladly pay a handsome subscription fee for a magazine that helped the public to "flush out" trivial patents, or made efforts to purchase truly innovative patents on behalf of the public.

Anonymous said...

Amateur. Prior art does not mean blogpost. And patents are not about ideas. Patents are trivial describtions of abstract stuff.

It does not work like this.

Steve Jones said...

Ahh Anon...

"In most patent systems, in order to anticipate a claim, prior art is expected to provide a description sufficient to inform the average worker in the field (or the person skilled in the art) of some subject matter falling within the scope of the claim. Prior art must be available in some way to the public, and many countries require the information to be recorded in a fixed form somehow. Again, in most patent systems, prior art does not include unpublished work or mere conversations (though according to the European Patent Convention, oral disclosures also form prior art — see Article 54(2) EPC). It is disputed whether traditional knowledge (e.g. of medical properties of a certain plant) constitutes prior art."

From Wikipedia
So in otherwords the Prior Art has to be sufficent that someone with experience in the field (i.e. software & technology) to go "yup, that means the same as your patent application".

You can say that it doesn't work like this, but given that conversations (oral disclosures) can be included in Prior Art then its hard to see how a journal or website (which is what blog + tags is) would not be accepted.

Could you point me to a definition of prior art that says how web based publication would not count as Prior Art.

Anonymous said...

/* So in otherwords the Prior Art has to be sufficent that someone with experience in the field (i.e. software & technology) to go "yup, that means the same as your patent application".

You can say that it doesn't work like this, but given that conversations (oral disclosures) can be included in Prior Art then its hard to see how a journal or website (which is what blog + tags is) would not be accepted.

Could you point me to a definition of prior art that says how web based publication would not count as Prior Art. */

This is EXACTLY the deception US citizens fail to get when they talk about the patent system. So they follow the novelty red herring and not "patentable subject matter". The patent office has no interest whatsoever to misconception.

A "person skilled in the art" is a dogmatic legal concept. It is no "you", it is just a legal concept.

In most patent systems "prior art" means "earlier patent application" or documents registered in the database. The meaningless stuff you find in the patent will be discussed by no one in the field.

Ex-Examiner said...

I used to be a patent examiner (1999-2000). Even then, we used websites daily as prior art. Someone would apply for a patent on, say, a java-based widget. We would find one on a website listing the release date of the widget, print the webpage with the date and description, and use it to reject the patent application.

Not only can prior art be from the Internet, but it has been coming from the 'net for years.

Regarding what is patentable, a mere algorithm or computer program (i.e., code) is not patentable. Period. Anyone trying will receive a 35 USC 101 (claimed subject matter not patentable) rejection.

The rub comes courtesy of the State Street Bank decision. Federal courts ruled that, because the software was claimed as part of producing a useful result (i.e., business method using software), it was not banned by 35 USC 101; the USPTO had to examine it as with other patent applications.

That opened the floodgates. The USPTO, which had previously held that software was a copyright issue, suddenly was forced to examine what -- effectively -- were software patents. All the applicants had to do was claim "a method" or "device" including the algorithm implemented in the software. The applications flooded in, the PTO had to ramp up its abilities fast, but did not keep up ... and here we are.

Anonymous said...

Let me give you an example of a patent troll with software patents. I don't say trivial softpatents because there is no non-trivial software patent.

Take the Eolas timestamp patent. It will tell you what know when I talk to you about timestamps. And I guess you knew the very same in 1998 and 1995. There are even laws and regulations for timestamps.

U.S. Patent 6,381,696, Filed Sept of 1998, Issued April 30, 2002

Can it be challenged on novelty? Maybe. But where are the parties that object?

Go and read it:

Will novelty help you? A timestamp patent describes what a timestamp is and how to implement it. We all know this.

Irrefutable public key digital signature time-stamps are created and used based upon, for example, the concept of transient time-interval-related secret cryptographic keys, which are used to digitally sign submitted data during specific time intervals, and then are permanently destroyed. The public-key correlate for each time interval is saved for future authentication of the content of time-stamped data and time of creation of time-stamped data. The validity of the public keys is ensured through the certification of each time interval's public key using the previous time interval's secret key, immediately before that secret key is destroyed.

Patent offices won't reject it based on novelty when there is no other patent that covers the same. The "person skilled in the art" is a legal person that knows the "state of the art", also known as patent databases.

True, you can find an implementation of the software from 1995. But here the problem will be that the patent will describe something different than you implementation, a generalisation of your implementation with no value to professionals whatsoever.

Americans should start to talk about "patentable subject matter" and conditions of patentability. The public patent review project is a trap for the angry masses, to keep you in check.

"or was patented or described in a printed publication in this or a foreign country"

Printed publication is pretty significant isn't it. And sure a scientific publication would not describe the same as a patent.

What is new regarding the time stamp patent. Maybe that the key gets deleted. A simple programming idea.

Anonymous said...

Look, for the last damn time, let's all repeat it together now. Ready, 1, 2, 3:


You can't patent an "idea". If someone writes their "idea" down on the web, that's NOT PRIOR ART. They have to actually INVENT it. They have to describe how to MAKE it. Go buy a law book.