Putting Ideas And Inventions Into The Public Domain

from the an-idea-who's-time-has-come dept

Thu, Apr 23rd 2009 10:59am — Mike Masnick

A few months back, we wondered why it was so difficult to opt out of copyright. Soon after that, Creative Commons added its CC0 license, which gets you a long way towards putting your content in the public domain (there are a few issues related to it, but it's better than nothing). With patents, the issue isn't quite the same. With copyright, you're automatically given a copyright on creative works. Obviously, that's not the case with patents. However, people have wondered how they can put their invention in the public domain, such that (a) others can benefit from it and (b) it prevents others from patenting it at a later date. Tragically, the US Patent Office tends to look pretty narrowly at what counts as prior art and requires that the information be "published," (something that is also defined very narrowly) so simply declaring an invention to be in the public domain isn't always good enough to prevent others from making a claim on it.

I was thinking about the Slashdot post above for a bit, wondering if it was worth writing this post up, when someone else pointed out that some folks have now set up Public Domain Ideas, a wiki designed for just this purpose: to put your ideas into the public domain by publishing them in that wiki. There have been some efforts in the past to create a database of obviousness, but that's pretty difficult. The big problem with obvious ideas is that they're often so obvious, no one even thinks to put them down, until it's too late, and someone has patented an "invention" based on that idea. But the idea of a wiki for public domain ideas is much more interesting -- if people really do decide to make use of it -- and if the Patent Office recognizes it as a source of published inventions for prior art. In the meantime, if you've got some good ideas to share, why not check it out?

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Filed Under: ideas, inventions, patents, prior art, public domain, publishing, wiki
Companies: public domain ideas

39 Comments

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C.T., 23 Apr 2009 @ 11:49am

"the US Patent Office tends to look pretty narrowly at what counts as prior art and requires that the information be "published," (something that is also defined very narrowly)"

That's not true at all.
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The infamous Joe, 23 Apr 2009 @ 11:58am

Re:
Can we see a link proving that, please?
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C.T., 23 Apr 2009 @ 12:04pm

Re: Re:
First of all, prior art doesn't necessarily need to be published: http://www.bitlaw.com/source/35usc/102.html

But as far as published prior art goes, the claim that "publication" is interpreted narrowly is also patently (pun intended) false. I could provide you a string cite of cases, but I doubt you're interested in reading them.
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Tgeigs, 23 Apr 2009 @ 12:05pm

Re: Re: Re:
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R. Miles, 23 Apr 2009 @ 12:36pm

I've been to the CC site many times, but...
... I'm still not sure what it's for.

How can a non-profit give out licenses which circumvent U.S. Copyright law? Are these CC licenses legal? Approved by U.S. copyright and U.S. Code?

Could this be a reason it's so hard to do with patents?
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Mike (profile), 23 Apr 2009 @ 12:39pm

Re: Re: Re:
But as far as published prior art goes, the claim that "publication" is interpreted narrowly is also patently (pun intended) false. I could provide you a string cite of cases, but I doubt you're interested in reading them.

In terms of what the examiners will look at, I don't think it's false at all. It's true that on review, when other prior art is submitted, it can contain lots of other things -- but the basic set of things that an examiner looks at initially is, in fact, quite limited
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JGM, 23 Apr 2009 @ 12:39pm

There have been websites similar to this for many years. halfbakery.com has existed since at least 2002. Others include ShouldExist and Globalideasbank.

I have personally seen each of these cited as prior art.
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Anonymous Coward, 23 Apr 2009 @ 12:55pm

Re: I've been to the CC site many times, but...
your words make no sense. CC doesnt give out licenses. They show you licenses which you may give out yourself to cover your own copyrighted works, if you so choose.
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Lonnie E. Holder, 23 Apr 2009 @ 12:57pm

Re: Re: Re: Re:
Can you be a bit more specific. Examiners will look at journal articles, foreign patents, domestic patents, magazines, books, manuals, and newspapers, both printed, pdf and electronic, if there is a valid copyright page with a date. I have also had dated webs pages provided to me with patent application rejections. I have heard, though not personally witnessed, that a television show was used to reject an application, initially. So, what might be prior art that would not be acceptable "initially," but might be acceptable "on review"?
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Anonymous Coward, 23 Apr 2009 @ 1:01pm

Have you looked at this stuff?
I went off to Public Domain Ideas and found, ideas. I did not see the three or four ideas I looked at explain how to accomplish the idea (that would be an invention and might also constitute prior art), only ideas. I too think it would be great if we went faster-than-light (that idea was not there, but is a very old science fiction idea), but I will be darned if I know how to actually do it. Incidentally, I doubt any of the entries I looked at on this website would constitute prior art because they are insufficiently enabling.
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Greg (profile), 23 Apr 2009 @ 1:12pm

CC0 isn't a license...
it is a waiver. Just saying.

It should say "its CC0 waiver"
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Chris MacAskill, 23 Apr 2009 @ 1:51pm

We badly need a site like this
Fascinating comments. We so dream of a site where we can disclose art in a way that would protect us from someone patenting it and using it against us 10 years later.
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Stuart Fox, 23 Apr 2009 @ 2:13pm

Patent public domain
The purpose of publically domaining an invention is to make it freely available for all to benefit - on the surface that seems like a wonderful objective / ideal.

However most inventions require inve$tment to develop, produce and promote / market.

If a patent monopoly right may not be available this may deter business from investing since they may not recoup their investment and so public domaining may be counter productive as the invention may not become available.

Think about it.

Stuart Fox, Chairman, Inventors Society of Australia.
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Derek Kerton (profile), 23 Apr 2009 @ 2:15pm

Re: Re: Re: Re: Re:
Example: a lot of good, but "obvious to those skilled in the art" ideas are proposed, discussed, or mentioned casually at conventions, meetings, summits, etc.

Many of these are so common and obvious that no one in the room - the person saying the idea or the listeners - thinks the idea is particularly unique. Nobody in the room storms out to put in the first patent.

Often, some time later, a patent is filed for that same idea, and a USPTO reviewer would find no "published" prior art.

Sorry, no concrete example to offer here, but I would bet the concept of wireless email would probably fit. Didn't stop NTP from patenting it and getting half a Billion from RIM.
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Jerry Leichter, 23 Apr 2009 @ 2:42pm

Dirty tricks
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Jerry Leichter, 23 Apr 2009 @ 2:55pm

Dirty tricks
Sad to say, people have come up with dirty tricks that can make publication of an idea in an attempt to prevent anyone patenting it dangerous. The way it works is this: I find an area where I know active work is on-going and people are coming up with and publishing new ideas. I file an extremely broad patent in the field - one that can't possibly be approved as written because of lack of specificity, a lack that's unavoidable because I don't yet know how to solve interesting problems. But I don't care, because I'll be filing continuations and "clarifications" that gradually fine-tune my patent to match ideas I find others publishing. You'll say, oh, but any changes I make will post-date the publication. Yes, but the legal precedence date for a patent is the date it was originally filed. Later changes don't change that date. A patent application can be kept alive, with the original date, for a very long time these days. (Even patents you *want* to actually issue get delayed!)

Of course, if I'm too obvious about this I can get caught and probably be subject to criminal penalties for fraud on the patent office. But the patent attorney who described this to me - in response to a proposal to publish an idea that the company I was at (a) didn't see any gain in patenting but (b) didn't want to see someone *else* patent either - told me that actual cases of this game were known and you had to watch out for them. The trick to avoid the problem: Publish an article describing the invention in an obscure magazine - there are plenty in every relevant field, and nothing says "prior art" like a dated paper copy of a magazine published by an unrelated third party. Don't have anything in the article tying it to the company involved - this game is only worth playing if you think you can grab a patent out from under a large company. I suppose if the inventor is well-known in the field, it's better to put someone else's name on the article.

Unfortunately, as long as this kind of gaming is possible, any centralized mechanism for "neutering publications" may prove to have exactly the opposite of the desired effect.
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Anonymous Coward, 23 Apr 2009 @ 3:07pm

Re: Patent public domain
Congratulations stuart, you have identified the positive aspect of patents.

Now, think of some negatives.

Then try and balance them against each other.

Like we do here.

Every. Single. Day.

Like every business does every single day on a number of factors when they consider things which may reduce the likelyhood of investment recouping and whether or not to proceed with a product.
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R. Miles, 23 Apr 2009 @ 3:20pm

Re: Re: I've been to the CC site many times, but...
Well then, I am seriously lost at what CC does, offers, and how it helps pertain to copyright.

This page http://creativecommons.org/about/licenses/ offers licenses. Regardless if it gives them out or not, it's still hard to understand its purpose.

Especially if copyright law and U.S. Code doesn't honor them.

Can these stand up in court if someone chooses to try and copyright works one "freely" gives out?

Over the weekend, I'll try once again to understand Creative Commons.

My head hurts to much right now to try it today.
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hegemon13, 23 Apr 2009 @ 3:34pm

Re: Re: Re: I've been to the CC site many times, but...
I think you misunderstand how copyright works. Unless they have signed a contract to the contrary, the copyright holder gets to determine how they license and release their copyrighted work. The US copyright office does not issue licenses, the copyright holder does. CC has created some pre-made licenses available to any copyright holder for free. Therefore, a copyright holder has a simple way to grant certain rights to their users. Rather than enumerating those rights themselves and hiring a lawyer to write it all up in legalese, they can simply release it with one of the several available Creative Commons licenses.
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hegemon13, 23 Apr 2009 @ 3:43pm

Re: Re: Re: I've been to the CC site many times, but...
"Can these stand up in court if someone chooses to try and copyright works one "freely" gives out?"

You seem to have one other point of misunderstanding here. The work is already copyrighted the moment the work is created. Generally, the copyright goes to the content creator. It does not matter what the copyright holder does with it at that point, they still own the copyright. Even if they give it out all over for free with NO specific license, they still own the copyright. No one else can step up and try to copyright the work.

Now, if they have given it out for free with no specified license, they may find it hard to enforce the copyright in the future. That is the reason for Creative Commons. It allows the copyright holder to release a work for free, while still retaining some rights. CC specifically lays out the rights of the copyright holder and the end user/licensee for each type of license.
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Anonymous Coward, 23 Apr 2009 @ 3:54pm

Re: Re: Re: I've been to the CC site many times, but...
I think you're a shill who is crapping out the most unoriginal possible CC FUD. But just in case you're honest:

You think theres a list of approved license texts registered in some US office of copyright law and US Code? Baloney. A license is just a contract, and can be whatever you want, subject to all the normal constraints which are routinely dealt with by courts.

These contracts govern the use by others of your copyrighted materials. In order to use them in ways other than fair use, they must accept the terms.

They are just as likely to hold up in court as any other contract or license.

CC doesnt DO anything. CC is just a group that gives you suggestions for what license you might want to use. Youre the one that DOES something by placing your content under the license.
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Mike (profile), 23 Apr 2009 @ 5:05pm

Re: Patent public domain

If a patent monopoly right may not be available this may deter business from investing since they may not recoup their investment and so public domaining may be counter productive as the invention may not become available.

Not really. Any *smart* business would recognize that the value is not in the exclusivity, but in the execution and the ongoing innovation. So, if it causes a few dumb or shortsighted businesses to stay away, so be it, but there's no real economic loss.

Think about it.

We have. A lot.
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angry dude, 23 Apr 2009 @ 7:00pm

Re: Re: Patent public domain
Think about it.

We have. A lot. with our arse...
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Willton, 23 Apr 2009 @ 7:29pm

Re: Re: Re: Re:
In terms of what the examiners will look at, I don't think it's false at all. It's true that on review, when other prior art is submitted, it can contain lots of other things -- but the basic set of things that an examiner looks at initially is, in fact, quite limited

Spoken like someone who has never practiced before the Patent Office. Like Lonnie said, patent examiners look at a myriad of sources for prior art when examining patents. The only resource of which examiners have a limited amount is time.
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Anonymous Coward, 23 Apr 2009 @ 7:30pm

Re: Re: Re: Re: Re: Re:
Except all of NTP's patents were invalidated on re-examination.

Talking about an idea is not an invention. However, that is not the only reason that it would not be "published." If several people get together and brainstorm an idea, but never do anything with it, then the invention is effectively suppressed. That means the invention never existed. Until the invention is enabled and in the public domain, it is not published, it is just a fantasy.
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Anonymous Coward, 23 Apr 2009 @ 7:31pm

Re: Dirty tricks
The improvements only date to the date of disclosure, regardless of what you have heard. Yes, the priority date of the original application is the same, but anything in a CIP dates only to the day of the CIP.
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Anonymous Coward, 23 Apr 2009 @ 7:33pm

Re: Re: Re: Patent public domain
If spouting vulgarities counts as a legitimate contribution to the discussion here, well then....

I've thought about it and I think--
angry arse dude is an ass
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Anonymous Coward, 23 Apr 2009 @ 7:34pm

Re: Re: Re: Re: Re:
Here is a reasonable question. Yet, no answers.
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Mike (profile), 24 Apr 2009 @ 10:27am

Re: Re: Re: Re: Re:
Spoken like someone who has never practiced before the Patent Office. Like Lonnie said, patent examiners look at a myriad of sources for prior art when examining patents. The only resource of which examiners have a limited amount is time.

Yes, in theory. In practice... not so much.
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Lonnie E. Holder, 24 Apr 2009 @ 11:04am

Re: Re: Re: Re: Re: Re:
Spoken like someone who has never practiced before the Patent Office. Like Lonnie said, patent examiners look at a myriad of sources for prior art when examining patents. The only resource of which examiners have a limited amount is time.

Yes, in theory. In practice... not so much.

Here I have to ask you for your source of information. I personally have been rejected for foreign patents, foreign publications that were not patents, magazine articles and journals. I have even had at least one rejection that included an internet web page. I have cited internet web pages as art. If you like, I will go find the PAIR pages where these things have popped up. I am personally aware of one patent that was rejected on the basis of a science fiction book. I suspect other patent practitioners who have done any volume of prosecution have seen the same thing. So I have to ask, what are you citing as the source of your information for "In practice...not so much"?
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Jerry Leichter, 24 Apr 2009 @ 2:46pm

Re: Re: Dirty tricks
There are all kinds of technical details about how to play this game, but fundamentally: The original application "already contained the idea" - the later stuff was just clarification and expansion. At least that's how the argument would go. Sure, maybe the argument loses - but it only has to be strong enough to make it cheaper to pay up than fight.
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Anonymous Coward, 24 Apr 2009 @ 5:50pm

Re: Re: Re: Dirty tricks
Jerry:

It does not matter whether the original patent "already contained the idea." What matters is the claims and whether they are enabled. You sue on the basis of the claims, and claims are allowed to the extent they are enabled. If the claims were not enabled by the initial application, you can play "games" all you want, but your priority in a continuation-in-part is the date that the claims were enabled. No amount of "games" or any other name you want to give it are going to give you a winning day in court.

I also think there are many here exaggerating the effect of court cases. Most defendants know that plaintiffs only win about 20% of cases actually filed. Let me say this all by itself:

Plaintiffs lose about 80% of all patent lawsuits.

This statement came from an AIPLA study a couple of years ago, and is extremely well documented. It accounts for all filed suits and includes all settlements.

Bottom line: Patent suits are not typically winners for the patent holders and it is in the best interest of the defendant to take the suit all the way to trial.
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Bettawrekonize, 2 May 2009 @ 12:17pm

One thing we do need to make sure is that ideas don't get banned once a patent expires (think LSD, freeon, Ozone therapy, etc...). Federal agencies have many conflicts of interest and if an unpatented product competes with a patented product there is a tendency to ban the unpatented product so it won't compete with patented products (think red yeast rice containing more than trace amounts of naturally occurring lovastatin).
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Bettawrekonize, 2 May 2009 @ 12:24pm

Please read my posts under http://www.techdirt.com/articles/20080318/004156568.shtml (Why patents cause more harm than good) for more examples of how industries skew data for the sake of protecting their patented products. Here, in fact, is a more recent example. http://www.huffingtonpost.com/jeffrey-smith/monsanto-forced-fox-tv-to_b_186428.html It is the patent system (these people who want to sell patented products) that substantially increases the incentive to skew data. Thanks to our patent system it is much more difficult to know what's true and what's not.
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Bettawrekonize, 2 May 2009 @ 12:28pm

The problem isn't so much an issue of finding a solution, the problem is an issue of overcoming those who influence the government into acting in the best interest of special interest groups (at the expense of everyone else). For instance, the FDA has often considered industry studies in determining the safety and effectiveness of a (patented or to be patented) drug while completely ignoring independent studies (ie: from universities. This was mostly done under George Bush). Why would they only consider industry studies in their decisions? Because it's in the best interest of those industries.
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Mike, 4 May 2009 @ 9:11am

Re: I've been to the CC site many times, but...
The CC licenses are licenses you can apply to your work. The goal is to provide a set of licenses that achieve certain "copyleft" goals. So, when an author applies a certain CC license, they're not "circumvent[ing] U.S. Copyright law;" they are using their exclusive rights under US Copyright law and contractually giving up some of those rights.

I don't understand your last question. There's nothing difficult about licensing patents, but patents cost significant money to prosecute and obtain whereas copyright is automatic and "free." So, licensing patents this way seem silly.
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North, 11 Sep 2010 @ 8:18pm

Inventions v. Ideas
Some of the comments here, and the entire Public Domain Ideas website misunderstand the difference between an IDEA and an INVENTION. As a point of law, you cannot patent an IDEA, you must make an INVENTION and patent that (does not have to take a pysical or even tangible form however).

An idea is just an idea. An invention is a specific embodiment or set of embodiments of a concept or idea (machine, manual process, etc.)

So putting your IDEA on PublicDomainIdeas.org accomplishes nothing and is absolutely worthless. Someone could still create an invention based on that idea, and patent it.
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North, 11 Sep 2010 @ 8:25pm

Re: Have you looked at this stuff?
Exactly. Thank you. Nuf Said.
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md, 22 Apr 2012 @ 4:26pm

Re: Patent public domain
Duh, that is why the current system of people starting buisnesses with other peoples money is flawed. A buisness should start from the ground up and find support in the market an use profits to reinvest in the company. The benefit of starting a buisness should be from the ability to sell or make a product, not the prospect of having your own monopoly.
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