Are Companies Scanning Open Source Commit Logs And Patenting What They Find?

from the prior-art? dept

Wed, Dec 1st 2010 9:57pm — Mike Masnick

It's funny how often we hear patent system supporters tell us that if you haven't actually gotten a patent for your invention, it's perfectly reasonable for someone else to go and patent it instead. The idea of presenting an idea for the public domain or for open source purposes seems foreign to them. Recently, I've seen two examples of questionable patent applications that appeared to take content that was put out publicly, and tried to turn them into patents. The first, found via Dave Farber's IP list is a patent which an open source developer suggests almost identically matches code that he committed to an open source project. The guy who wrote that post has since backed down a bit on his original claims that the patent was clearly "copied" from his open source commits, but still notes that the patent application in question is ridiculous.

Then there's a similar story, found via Slashdot of a guy who coded an open source library for Windows in 2001 (inspired by a Bruce Perens project from 12 years earlier) and just discovered that IBM appears to have patented the same technology -- even mentioning this guy's own blog post in the references section.

Whether or not these two patents are examples of various companies trying to patent open source technologies as they're being developed, it does highlight yet another problem with the patent system as it is set up today. Even if there does appear to be clear prior art, it's not as if the Patent Office seems willing, capable or interested in actually understanding how these patents are simply copying what's already being done elsewhere.

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Filed Under: open source, patents, software

30 Comments

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Andrew F (profile), 1 Dec 2010 @ 10:21pm

USPTO is looking at prior art
Read the Slashdot comments. It looks like the prior art reference was found and raised by the USPTO, not by IBM. They ultimately granted the patent after IBM narrowed their claims such that it was an "improvement" on the open-source tech.

That's probably more of an issue than the prior art. At what point does an "improvement" become obvious? The interesting scenario would be if companies monitored open-source commit logs, predicted where the technology was heading, and patented it in advance. That'd be a good test-case for an independent invention defense.
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Anonymous Coward, 1 Dec 2010 @ 10:23pm

Re: USPTO is looking at prior art
Wow, I think I will improve on some patents out there that I saw.
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misterdoug (profile), 1 Dec 2010 @ 10:42pm

More hypocrisy
If patent supporters feel so strongly about the sacredness of a person's creative works, there should be some outrage against those who use the system to protect works they didn't create and didn't pay for.
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Karl, 1 Dec 2010 @ 10:44pm

a different model for patents
There are a couple of openpatent initiatives out there. what is needed is an open model that works for both the idea originators and potential licence holders. I posted about a potential wiki like model and would appreciate your thoughts:
http://experiencecurve.com/archives/patentwiki-an-idea-incubator
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kyle clements (profile), 1 Dec 2010 @ 10:49pm

Re: USPTO is looking at prior art
"That's probably more of an issue than the prior art. At what point does an "improvement" become obvious?"

Maybe that's why Gillette skipped over a 4-blade design.
Schick got a patent on 4-blades, so Gillette had to do the unexpected...jump straight to 5.

I am so patenting a 6 blade design...mwahahaha!

I've discovered one mind-bogglingly simple little thing that is not patented. It's kind of cool, and I'm not going to patent it.
What worries me is the idea that someone else might come along, scoop up the idea, and prevent me from using it.

Someone should invent a crowd-sourced patent prior-art tool, where people can submit evidence and have bad patents easily revoked.
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Anonymous Coward, 1 Dec 2010 @ 11:21pm

Re: Re: USPTO is looking at prior art
I'm sure such a thing is patented already, which is why it doesn't exist.
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BruceLD, 1 Dec 2010 @ 11:31pm

Subject
Patent trolls can suck it...
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cc (profile), 2 Dec 2010 @ 12:30am

This immediately comes to mind: http://xkcd.com/827/
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misterdoug (profile), 2 Dec 2010 @ 1:05am

It isn't simply a case of having had an idea before. These are cases in which someone has invented something and then made a deliberate decision to make the invention public, which is their right. Patenting things like this is analogous to cutting down trees in a city park to start a Christmas tree business.
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Anonymous Coward, 2 Dec 2010 @ 2:57am

Re: USPTO is looking at prior art
I think an issue is if IBM had not referenced the blog, would the USPTO have caught the prior art and another question to be asked is how often do those who want patents typically reference where they stole an idea if they stole it and how easy is it for our broken USPTO to locate such prior art and how motivated are they to do so?

It's hard for me to imagine that patent trolls, in particular, are really capable, experienced, or knowledgeable enough in any industry to come up with anything original and useful on their own and it's easy to imagine that these technologically inexperienced people could easily steal ideas from technologically experienced people from industries that actually engineer stuff, people who would consider such ideas obvious because they are skilled in the art (whereas patent trolls are only skilled in the art of extortion).
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Anonymous Coward, 2 Dec 2010 @ 3:02am

Re: USPTO is looking at prior art
"They ultimately granted the patent after IBM narrowed their claims such that it was an "improvement" on the open-source tech."

This basically looks like an attempt to patent anything that hasn't been already patented or anything that has no prior art.

The assumption the USPTO seems to be making is that, if it hasn't already been patent and there is no prior art, it's patent worthy. I find such an assumption to be dubious at best. The goal of the USPTO shouldn't be to grant as many patents as it can, it should be to promote the progress.
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Anonymous Coward, 2 Dec 2010 @ 3:03am

Re: Re: USPTO is looking at prior art
if it hasn't already been patented *
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Anonymous Coward, 2 Dec 2010 @ 3:20am

Re: Re: USPTO is looking at prior art
Basically corporations have sorta taken a "patent the gaps" philosophy.

Make patents as broad as possible so that it covers everything, get feedback to figure out where the USPTO won't grant patents, and patent the gaps that they will allow patents for.

Seems like something more likely to promote extortion than innovation. This shouldn't be how the patent system works.

The patent system should work to promote the progress and perhaps to protect peoples R&D investments to encourage R&D, patents should typically have R&D value behind them, but apparently none of them do because no one gets patents to commit R&D behind an idea or to implement it, they just get patents to become the gatekeepers of as much as they could, which hardly promotes the progress.
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Anonymous Coward, 2 Dec 2010 @ 3:26am

Re: Re: Re: USPTO is looking at prior art
and, honestly, I don't necessarily blame IBM. If IBM doesn't get these patents then some patent troll probably will, and they could end up suing IBM for infringement. IBM can also use these patents to counter sue someone who sues them for infringement. So these patents could be acquired for defensive purposes as well, IBM habitually knows that it should acquire as many patents as it can for defensive purposes to help alleviate future problems or the potential for future problems. Again, not how the patent system should work but unfortunately that's how it does work.
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Richard Kulawiec, 2 Dec 2010 @ 4:04am

And this is yet another reason why...
...all software patents should be invalidated.
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abc gum, 2 Dec 2010 @ 5:55am

Re: More hypocrisy
Yep, otherwise they would be hypocrites. But when it comes to money and power, some people dont care - until later, when they try to change history.
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abc gum, 2 Dec 2010 @ 5:56am

Re:
We're talking about code - right?
Code is writen, not "invented".
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JEDIDIAH, 2 Dec 2010 @ 6:37am

Code is invention.
Code is an implementation of some algorithm. Thus, it can be the working model of some "patentable invention".

Inevitably, a company like IBM has gotten a patent for things that might occur in any number of personal shell scripts.

This is inevitable when the PTO allows patenting the trivial.

Ultimately that leads to companies like IBM effectively stealing from every programmer competent in current technology by depriving them the right to use the product of their own intellect.
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Andrew D. Todd, 2 Dec 2010 @ 8:10am

Benefits of the First To File System
The "First to File" system of patent priority offers a solution. Despite its name, the "First to File" system is actually a modified "first to publish" system, similar to that used in pure science. That is, it works something like the following:

1. If you were not the first to publish, and you were not the source of the first-publisher's information, you may not have a patent. STOP.

2. If you were not the first to publish, and you were the source of the first-publisher's information (ie. though a breach of confidence or something like that), you have to file for a patent within a year after they have published. If you prefer, you can just produce evidence that the first-publisher got the information from you, and the matter goes into the public domain.

3. If you were the first to publish, and you developed the information independently, you have a year after publication to file for a patent, otherwise it goes into the public domain.

Only if none of the competing parties has published does filing date become decisive. If there is any likelihood that anyone else is working along the same lines, this system rewards the act of publishing your lab notebook every day, via the internet, and figuring after the fact whether it is worth anything.
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ChurchHatesTucker (profile), 2 Dec 2010 @ 9:50am

Re: Re: Re: Re: USPTO is looking at prior art
"If IBM doesn't get these patents then some patent troll probably will, and they could end up suing IBM for infringement. "

Sad but true.

The USPTO should be lined up and shot for gross negligence, but that's not going to happen.
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Jason, 2 Dec 2010 @ 10:02am

Walling in the progress?
@Mike Masnick, I'm with Andrew F, here. If you read further in the Slashdot comments, there's a great discussion of how it's not likely that this was a copy-to-patent scenario, but something far more convoluted and troubling.

It seems that, at least for software, the current patent system creates quite nearly the worst possible outcome for "promoting the progress." Rather than mining commit logs for things to copy and patent it seems that instead companies scour the documentation of prior art to do everything they can to wall that innovation in.

Almost like an antibody in your bloodstream, they work to conceive of every possible microinnovation to fill in the gaps in every contour of an application of prior art, and THEN THEY PATENT THE GAPS. This essentially begins to squeeze out future innovation in related applications because in order for anyone else to progress further, they would have to pay to make use of possibly several patented microapps.

The extremely troubling thing is that the slashdotters in the know on this talk about it like this is simply the norm, and "of course you wouldn't fight to invalidate just to re-open the playing field (as Tsiodras seems to want to do in your scenario above) because it costs way too much and where's the money in it when you do?

To conceive of the terrible problem with this, imagine saying that you were trying to "promote the progress" of traffic by converting every vehicle into a Tron-esque lightcycle.

Just as in the Tron game, there seems to be extreme incentive to race to cover new ground, but in reality the structure of the game is such that the best strategy is to race ahead only to twist and turn and trap everyone else so that they are forced to turn a corner, drive suddenly into one of your walls and implode.

Mike, this seems to me to be the driving force behind the trend you've highlighted as patent thickets. How did we decide to artificially impose zero-sum rules on what is not only a non-zero sum game, but one of compounded aggregate gains?
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Jason, 2 Dec 2010 @ 10:04am

Re: Walling in the progress?
s/b ...when you do?"
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Jason, 2 Dec 2010 @ 10:16am

Re: a different model for patents
Karl, I read your blog post on this, and I love the concept, but I wonder (and I offer this not as resistance, but as the very challenge before you/us on this): how can this collaborative process serve to overcome the systemic problem I pointed to above?

Because, considering the idea, it still seems vulnerable to a large corporation (or several of them) striving to wall-in your groups' new ideas with scores of patents of related microapps?

How do you make your work thicket-proof?
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abc gum, 2 Dec 2010 @ 6:19pm

Re: Code is invention.
"Code is an implementation of some algorithm. Thus, it can be the working model of some "patentable invention"."

An algorithm is neither patentable nor copyrightable.
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Anonymous Coward, 2 Dec 2010 @ 7:45pm

Re: a different model for patents
Ownership of ideas is a human rights violation and like slavery before it, no compromise that left the establishment in tact would be ethically acceptable.
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Jason, 3 Dec 2010 @ 8:13am

Re: Re: a different model for patents
Intermediate mitigtion needn't be viewed as a compromise. By your logic, it would have been equally unacceptable to purchase slaves for the sole purpose of setting them free while striving for total abolition.
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web, 3 Dec 2010 @ 10:43pm

Really good writeup, I wish I could have posted an article like this!!..
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Anonymous Coward, 5 Dec 2010 @ 10:39am

Re: Re: Re: Re: USPTO is looking at prior art
If IBM doesn't get these patents then some patent troll probably will, and they could end up suing IBM for infringement.

Abolish patents.
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Anonymous Coward, 5 Dec 2010 @ 10:40am

Re: Re: Re: Re: Re: USPTO is looking at prior art
"If IBM doesn't get these patents then some patent troll probably will, and they could end up suing IBM for infringement. "

Sad but true.

The USPTO should be lined up and shot for gross negligence, but that's not going to happen.

Abolish patents.
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Anonymous Coward, 5 Dec 2010 @ 10:41am

Re: Walling in the progress?
Mike, this seems to me to be the driving force behind the trend you've highlighted as patent thickets. How did we decide to artificially impose zero-sum rules on what is not only a non-zero sum game, but one of compounded aggregate gains?

By ever allowing patents in the first place.
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