Software Patent Web Links and Related Resources

  • Patently Absurd by James Gleick (When twenty-first-century historians look back at the breakdown of the United States patent system, they will see a turning point in the case of Jeff Bezos and Amazon.com and their special invention: "the patented 1-click feature," Bezos calls it.): http://www.around.com/patent.html
    • With link to "Who Wants to Be a Billionaire?" - "Bruce Dickens, for one. On the basis of a single patent for a method of fixing Y2K problems, he's demanding billions of dollars from corporate America."

  • Software Patents: Goliath Killing David?: http://www.complete.org/news/952490640/index_html

  • Software Patents: Trolling for Dollars : http://www.law.com/jsp/statearchive.jsp?type=Article&oldid=ZZZV4RVSSPC

  • Software Useright: Solving Inconsistencies of Software Patents by Jean-Paul Smets: http://www.smets.com/it/policy/useright/ and http://www.smets.com/it/policy/useright/useright.pdf

  • Software Patents: Introduction to some of the history: http://www-cse.stanford.edu/classes/cs201/projects-99-00/software-patents/introduction.html

  • Patent nonsense - Apr 6th 2000 - From The Economist print edition: http://www.economist.com/displayStory.cfm?Story_ID=300582
    • The broad concern is over "bad" patents that should not have been awarded because somebody else got there first, or where the idea was too obvious to deserve protection. It has happened often, most embarrassingly in 1993 when a company called Comptons New Media was given, in effect, a patent on multimedia. Not only was the patent absurdly broad, but much of the work had been done by Xerox�s Palo Alto Research Centre two decades earlier.

    • Patent Upending - http://www.wired.com/wired/archive/8.06/patents_pr.html
      • "(The invention police can't stand Greg Aharonian, who says the fuss over Amazon's "one-click" plan is old news. The real problem: The government lost its grip on intellectual property long ago.)"

    • O'Reilly Awards $10,000 1-Click Bounty to Three "Runners Up" : http://www.oreillynet.com/pub/a/policy/2001/03/14/bounty.html

    • Software Patents Pending? by Robin Widdison : http://lpf.ai.mit.edu/Patents/anatomy-trivial-patent.txt

    • Free Patents - Protecting Innovation & Competition in the IT Industry - Examples of software patents.: http://www.freepatents.org/examples/

    • Software patents: an industry at risk by Gordon Irlam and Ross Williams - SUBMISSION "To The Patent and Trademark Office" By The League for Programming Freedom : http://lpf.ai.mit.edu/Patents/industry-at-risk.html

    • Against Software Patents: http://lpf.ai.mit.edu/Patents/patents.html

    • Why Patents Are Bad for Software: http://lpf.ai.mit.edu/Links/prep.ai.mit.edu/issues.article

    • The Anatomy of a Trivial Patent: http://lpf.ai.mit.edu/Patents/anatomy-trivial-patent.txt

    • Some Fun and Useful Pages: http://www.ka9q.net/fun.html

    • Don Lancaster's - Patent Avoidance Library : http://www.tinaja.com/patnt01.html

    • Don Lancaster's - Patent Avoidance Library tutorials: http://www.tinaja.com/patnt01.html#tutorials

    • Don Lancaster's - Patent Avoidance Library - The Case Against Patents: : http://www.tinaja.com/glib/casagpat.pdf

      • All a patent does is give you the right to sue someone in a civil action. At some future date in a ridiculously costly, extremely drawn out and easily circumvented legal process. Nobody has ever "won" any patent litigation. The main purpose of patent fights are to cause more grief and harm to the opposition than you are causing yourself. Almost always, this purpose fails miserably.

      • Fact:Prior art is not needed to bust any patent.
        All you really have to do is show that the claims would have been reasonably obvious to any "practitioner in the field." That�s all it takes.

        As is often the case, a patent search gets made without actually looking at any of the non-patent history of the field in the way of key papers, seminars and trade journals. All you have to do is find someone somewhere that says it sure would have been obvious to them.

        When (not if) your patent ends up busted, you will also run the risk of a frivolous litigation countersuit. Thus, if you have the temerity to try and defend your patent, you could end up being fined thousands of dollars.

      • Some Better Alternatives:
        So, if you are a Midnight Engineer, just what are the alternative methods for successfully marketing your ideas and concepts? Based on many years of personal experience and several cubic yards of overflowing third-party patent victim files, here�s what I�d suggest . .

        First, totally avoid any and all contact with anything even remotely patent related. In any way, shape or form.

        Do so religiously.

        Second, don�t even bother creating anything in any field in which you are not eventually certain to become an expert. An expert that is thoroughly familiar with the technical literature, the history of the field, the marketing realities, the insider trade journals, and the mainstream tools and techniques in use. There is no point whatsoever in writing forest fire simulation software if you have never sharpened a Pulaski. Nor (as sadly happened to yet another victim just this morning) in patenting a "new scheme to replace inductors" without having read and understood Sallen and Key in their 1955 classic paper.

        Third, publish all your key secrets and ideas in a major magazine, leaving out no detail, and omitting no insider secrets. This immediately can generate positive cash flow for you and safely tucks all your ideas away in the public domain, preventing most others from attempting to patent them. This also will expose your new ideas to the widest possible audience.

        Fourth, try to set up some royalty arrangement with a smaller to medium firm in some position to market and distribute your invention. The normal royalty payment is typically in the five percent range. Now for the tricky part: They must come to you, and never vice versa. That is why it is super important to publish your ideas and creations and expose them as widely as possible.

        You normally have one and only one defense against getting ripped off in any royalty setup: The expectation that you will be delivering newer and better stuff in the future. And that is all.

        Fifth, employ the shotgun technique. There is no way that one single idea or product will hack it. To survive in this game, you�ll need hundreds or even thousands of new ideas and concepts working for you on a total lifetime and total lifestyle basis. Chances are that one or two genuine winners will pay for all the others lost or stolen.

        Finally, be realistic. You don�t create things to get filthy rich. You create things because you like to create things and have some compelling desire or need to do so. As long as there are enough nickels to keep going, that is all that should really matter.

    • Software Patents: A New Industry Transforms the Patent System http://www.law.com/jsp/statearchive.jsp?type=Article&oldid=ZZZP3ISKSPC
      • "(Cypress is one of a growing number of companies willing to go to court to fight off claims of infringement brought by companies that want money for a patent license. It successfully fought five patent infringement suits -- three brought by Texas Instruments Inc. and two by EMI Group North America Inc. -- and is currently battling the granddaddy of patent enforcement outfits, the Lemelson, Medical, Education and Research Foundation. ):

    • Software Patents: Battling the Patent Trolls : http://www.law.com/jsp/statearchive.jsp?type=Article&oldid=ZZZ4DX7MSPC

    • The Free Protocols Foundation Mission - dangers of Software Patents: http://www.freeprotocols.org/freeProtocolProcess/split/node2.html

    • Computer-Related Invention Guidelines - US Patent Office : http://www.uspto.gov/web/offices/pac/dapp/oppd/patoc.htm

    • Software Patents: AltaVista to become only Net search engine: http://www.theregister.co.uk/content/6/16180.html

    • British Telecom: We Own Linking : http://www.wired.com/news/infostructure/0,1377,37095,00.html

    • Against Software Patents - February 28, 1991 - The League for Programming Freedom : http://lpf.ai.mit.edu/Patents/against-software-patents.html

    • Software Patents: Prodigy to fight BT's 'shameless' hyperlinks patent lawsuit: http://www.theregister.co.uk/content/archive/15527.html

    • Software Patents: BT launches US hyperlinks legal action : http://www.theregister.co.uk/content/6/15485.html

    • Deep-Sixing the Submarine Patent : http://www.sciam.com/article.cfm?articleID=000C4F59-8093-1D2B-97CA809EC588EEDF

    • Has the Federal Circuit Finally Sunk Submarine Patents? : http://www.simpsonthacher.com/FSL5CS/memos/memos1218.asp

    • Patent Legislation Considered Helpful by Mark Nelson : http://dogma.net/markn/articles/Patents/Patents.html
      • "The past 10 years have seen a big change in the way programmers view the US Patent system. We've moved from our long-standing position of blissful ignorance into a keen awareness that each and every line of code we write just might step on the toes of an existing software patent. Times have certainly changed."

    • Software Patents: Amazon sues Barnes & Noble over checkout system : http://www.theregister.co.uk/content/archive/7437.html

    • Software Patents: US patent mess will get worse before it gets better : http://www.theregister.co.uk/content/archive/10119.html

    • Software Patents: JPEG Patent Claim Sparks Concern : http://www.wired.com/news/business/0,1367,53981,00.html

    • Software Patents: JPEGs are not free: Patent holder pursues IP grab : http://www.theregister.co.uk/content/4/26272.html

    • Software Patents: JPEG Patent Claim Sparks Concern : http://www.wired.com/news/business/0,1367,53981,00.html

    • Software Patents: JPEG guardians vow to defend free images : http://www.theregister.co.uk/content/6/26296.html

    • Software Patents: No more JPEGs - ISO to withdraw image standard : http://www.theregus.com/content/4/25711.html

    • The Danger of Software Patents : Speech by Richard Stallman at Cambridge University, 25 March 2002 : http://lpf.ai.mit.edu/Patents/danger-of-software-patents.txt

    • Kid gets patent on a way of swinging on a child's swing: (The US Patent Office issued patent 6,368,227 on 9 April to Steven Olson of St Paul, Minnesota for a "method of swinging on a swing".) : http://www.newscientist.com/news/news.jsp?id=ns99992178

    • Software Patents: Boycott Amazon! : http://www.gnu.org/philosophy/amazon.html

    • Software Patents: MP3 owners get stroppy with open source coders : http://www.theregister.co.uk/content/4/19982.html

    • Patents declared invalid by the PTO or the courts : http://www.bustpatents.com/invalid.htm

    • Problems with the examination of patent applications : http://www.bustpatents.com/exam.htm

    • Software Patents: Software download patent refuses to die : http://news.com.com/2100-1023-270021.html?legacy=cnet&tag=mn_hd

    • Software Patents: Patent On Software Downloads Upheld: (This latest ruling indicates that the courts consider the patent, filed by a company called E-Data in 1985, a valid patent. E-Data's plan is to charge a license fee for all data downloaded over the Internet. ) : http://slashdot.org/articles/01/07/17/0316219.shtml

    • Software Patents: "The Limits of Copyright" by Harvard Law prof. Lawrence Lessig : http://www.thestandard.com/article/display/0,1151,16071,00.html and http://cyberlaw.stanford.edu/lessig/.

    • Duke Nukem Targeted in Patent Infringement
      • At http://www.wired.com/news/print/0,1294,6252,00.html
      • "Charging that it violates his patent on the display of living performers in videogames, an Illinois man wants Apogee Software to pay him licensing fees or stop selling its most popular title, Duke Nukem 3D. While the claim may seem ridiculous, some observers say disputes like this are difficult to judge and point to a need for improvement in the Patent Office's evaluation process.

        Through a cease-and-desist letter sent by his attorney, the patent's owner, Craig Enokian, said that by incorporating animated video playback in its popular shoot-'em-up, Apogee has infringed on patent number 4,662,635, issued in 1987. "

    • Protecting Information Innovation against the Abuse of the Patent System: http://swpat.ffii.org/index.en.html

    • www.oreilly.com -- Ask Tim! -- Software Patents Issue: http://www.ora.com/ask_tim/amazon_patent.html

    • Strengthening and Weakening the Patent Through Reexamination and Reissue: http://www.myersbigel.com/pat_articles/pat_article11.htm

    • Inventor Stakes Claim to MS Fortunes
      • http://www.wired.com/news/business/0,1367,10251,00.html

      • "It's well known that the US Patent and Trademark Office has had problems in the area of software," said University of California, Berkeley law professor Pamela Samuelson, a 1997 recipient of the MacArthur Foundation award. The Patent Office's main problem is that it doesn't have an extensive repository of information on developments in software as it does, for example, in biochemistry, or shovels, Samuelson said.

        That's because in the first 30 years of the software industry, patents weren't issued on software, Samuelson said; the courts didn't think mathematical equations and algorithms were patentable. By the late 1980s, that view had been abandoned. But the late start resulted in thin records of software developments at the Patent Office, which means patent examiners have a difficult time establishing the legitimacy of claims.

        A patent applicant must prove that there is no relevant "prior art" in the same area, meaning there should be no similar inventions that predate the discovery in question. That's difficult to determine without extensive archives.

    • Daylight Robbery Part 2: Case Study - the Humble GIF

    • Burn All Gifs
      • http://burnallgifs.org/
      • "The fact that Unisys was able to patent LZW is due to a flaw in the US patent system that makes even pencil-and-paper calculations patentable. You could violate some US patents just doing the story problems in a math or computer science textbook!"

    • Patent examination system is intellectually corrupt. Gregory Aharonian
      • http://www.bustpatents.com/corrupt.htm
      • "The fact that Unisys was able to patent LZW is due to a flaw in the US patent system that makes even pencil-and-paper calculations patentable. You could violate some US patents just doing the story problems in a math or computer science textbook!"

    • Patent examination system is intellectually corrupt. Gregory Aharonian
      • http://www.weil.com/wgm/Cbyline.nsf/c339a0e9ef1afeb28525678a007d0581/fc67d11b9478e66c85256a1f0068a056?OpenDocument
      • "Although current law permits the filing of such protests and petitions, see 37 C.F.R. 1.291 and 1.292, these provisions were almost never used, in part because U.S. patent applications traditionally were not published and therefore it was difficult or impossible for a third party to know what was pending before the PTO. By providing for both automatic publication and the submission of prior art, the Act intends to permit third parties to mount an effective challenge to business method patents before they even leave the PTO.

        Opposition Proceedings

        Many foreign patent systems provide for an administrative proceeding called an opposition in which any member of the public can challenge a newly-issued patent on the grounds that it fails to meet one or more of the requirements for patentability. The proposed legislation would introduce procedures of this type into U.S. patent law for the first time. Specifically, under the Act the Director of the PTO would establish an Administrative Opposition Panel, to be comprised of not less than 18 administrative opposition judges of "competent legal knowledge and scientific ability". Any third party would be permitted to file a request for an opposition to a business method patent under 35 U.S.C. @ 101, @ 102, @ 103 or @ 112 within nine months of the issuance of the patent. Moreover, once opposition proceedings are commenced, the proposed legislation would allow any party to obtain a stay of any pending court proceeding, other than a Federal Circuit appeal, that involves the patentability of any claim at issue in the opposition.

        The Act would allow the patent owner to respond to a request for opposition by filing a statement addressing the grounds for the request, including any amendment to the patent or new claims. The requesting party would be permitted to file a reply and then the opposition would be assigned to an administrative opposition judge, who could consider evidence both in the form of oral testimony (including direct and cross examination of experts), or in any deposition, affidavit or other documentary form. The judge would be required to rule on the patentability of the business method no later than 18 months after the date upon which the third party filed its request for an opposition. The judge's ruling could then be appealed to the Board of Patent Appeals and Interferences under 35 U.S.C. @ 134 and reviewed by the Federal Circuit and district courts, respectively, under 35 U.S.C. @@ 141 and 145.

        Amendments to a business method patent could be made at any time during an opposition. Upon the expiration of the period for appeals or the termination of an appeal, the Director would publish a certificate, inter alia, incorporating any amendment determined to be patentable. However, as in the case of amendments made in reexamination or reissue proceedings under current law, the Act would provide a defense of intervening rights to any person who practiced the invention covered by any such amended claim, or who made substantial preparations to do so, prior to the issuance of a certificate incorporating the amendment, unless such activities infringe a claim of the amended patent that was present in the unamended patent."

    • Business Method Patent Improvement Act of 2000

    • Summary of Business method patent improvements act of 2000
      • http://www.house.gov/boucher/docs/bmpiasummary.htm
      • "Sec. 3 further provides that within 9 months after the granting of a patent on a business method invention, any third-party can request the Director to order an opposition to a patent on a business method invention on the basis of sections 101 (subject matter is new and useful, i.e., utility), 102 (novelty), 103 (non-obviousness over prior art), and 112 (disclosure, description and enablement, with definite claims to distinguish over prior art)."

    • IP: Has the U.S. Patent Office really reformed?
      • http://www.interesting-people.org/archives/interesting-people/200103/msg00075.html 
      • >    Exporting American "Innovation" Abroad

>

>    While the U.S. PTO struggles to reform its examining procedures, and

>    members of Congress propose potential solutions (such as the Business

>    Method Patent Improvements Act of 2000), at least one other branch of

>    the U.S. government -- the Office of the U.S. Trade Representative --

>    appears to have been laboring to ensure that other nations adopt the

>    controversial American practice of granting patents to business

>    methods. (USTR is the federal agency charged with negotiating and

>    enforcing America's trade positions with other nations.)

>

>    For instance, consider the following excerpt from a October 24, 2000

>    Memorandum of Understanding "on Issues Related to the Protection of

>    Intellectual Property Rights Under the Agreement Between the United

>    States and Jordan on the Establishment of a Free Trade Area":

    • The Business Method Patent: The Uproar Rages - Should It?
      • http://www.thelenreid.com/articles/article/art91.htm
      • "One of these early critics was Harvard Law Professor Lawrence Lessig. He wrote: Awarding patents of that type [business method patents] siphons off resources from technologists to lawyers - from people making real products to people applying for regulatory privilege and protection. An increasingly significant cost of Net startups involves both defensive and offensive lawyering - making sure you don't "steal" someone else's "idea" and quickly claiming as yours every "idea" you can describe in a patent application. 3"

    • How Congress Has Reacted to Business-Method Patents

    • Software Patents and their Implications - Four Case Studies

    • RSA Public Key Encryption - Patent and Analysis

    • Amazon One-Click Shopping - Patent and Analysis

    • LZW Compression & GIF - Patent and Analysis

    • Hypermedia - Patent and Analysis

    • Statement of Rep. Howard Berman (D-CA). - Re: Introduction of HR 1333, the Business Method Patent Improvement Act of 2001. - Date: April 3, 2001. - Source: Congressional Record, April 3, 2001.

    • Patent Improvement Act of 2001 (Introduced in House) - Patent Reexamination Enhancement Act of 2001 (Introduced in House)

    • WHERE HAVE ALL THE NEW MEDS GONE? - Drug Abuse - by Nicholas Thompson - Post date: 10.01.02 - Issue date: 10.07.02
      • http://www.thenewrepublic.com/docprint.mhtml?i=20021007&s=thompson100702

      • "If universities have tied themselves to the cycle, cheekily known as "patent or perish," companies have been still more aggressive about staking--and defending--claims to cellular parts and processes. Two years ago Chiron Corporation stopped hepatitis C vaccine research at four other companies by refusing to license one of its patents. Recently, as the result of work by the National Institutes of Health (NIH), Human Genome Sciences (HGS) learned that a receptor it had previously patented was actually an important pathway for HIV to enter cells. The result: HGS can now stop competitors' aids research. The U.S. Patent Office has recently made this sort of serendipitous patent use harder, but it can't take away patents already granted. "

    • PANIP Defendants - You May Be Next
      • http://www.youmaybenext.com/

      • If you own or operate an e-commerce web site then you are us. And you need to know that a company in San Diego, Pangea Intellectual Properties (PANIP LLC) is suing companies all across the country. They claim that if you use graphical and textural information on a video screen for purposes of making a sale, then you are infringing on their patent. US Patent No 5,576,951.

        And if you accept information to conduct automatic financial transactions via a telephone line & video screen, you're infringing on their patent. US Patent No. 6,289,319

      • If you own or operate an e-commerce web site then you are us. And you need to know that a company in San Diego, Pangea Intellectual Properties (PANIP LLC) is suing companies all across the country. They claim that if you use graphical and textural information on a video screen for purposes of making a sale, then you are infringing on their patent. US Patent No 5,576,951.

        And if you accept information to conduct automatic financial transactions via a telephone line & video screen, you're infringing on their patent. US Patent No. 6,289,319

      • http://www.youmaybenext.com/why.html

      • "Why is PANIP suing all these companies?
        We wonder this as well....

        Why was PanIP (Pangea Intellectual Properties L.L.C) formed in March of 2002, less than a month before filing their first lawsuit against us?

        Why has PanIP chosen to go after small, hometown businesses with moderate gross earnings to begin their patent protection crusade?

        Why, when there are so many corporations out there currently running websites that annually gross millions in profits, while at the same time supposedly infringing upon the exact same patents, is PanIP going after the smaller businesses?

        Why did PanIP hire a consulting firm, Chi Consulting Firm in New Jersey, to identify suitable defendants for this case, when there are so many larger, blatantly obvious choices?

        Why did PanIP use Dun & Bradstreet credit information to select who they were going to sue?

        We can only ponder the reasons, but one might conclude that the opposition assumes a legal battle waged against a number of smaller businesses, all located in other areas of the US and far away from the venue of the Federal Court District in Southern California, and all with somewhat limited financial resources and legal experience, would be a simple victory to achieve, and easy money in their pocket. Perhaps they feel that a legal victory would set a precedent, from which they could then leap to attack wealthier corporations."

    • UK Government: Should Patents be Granted for Computer Software or Ways of Doing Business? - The Government's Conclusions
      • http://www.patent.gov.uk/about/consultations/conclusions.htm

      • "The Role of Patents

        6. Patents are a long-established means of encouraging innovation. A patent confers on its holder a legal monopoly, for a limited period, in commercial exploitation of the patented invention. In return for the monopoly the inventor must disclose his invention so that others may utilise his knowledge."

      • "Innovation is a feature of competition in business methods (whether computer- implemented or not), as companies strive for competitive advantage.... Patents--ie monopolies--could reduce innovation and consumer choice.... The Government's conclusion is that those who favour some form of patentability for business methods have not provided the necessary evidence that it would be likely to increase innovation. Unless and until that evidence is available, ways of doing business should remain unpatentable."
      • Full Quote: "23. Most respondents did not feel that new technologies, above all the internet, have changed this argument. A minority of the organisations disagreed. They felt that, as new technology has created new possibilities, some of which may involve considerable R&D cost to realise, then patents should be available for computer-implemented business methods. But most thought that innovation is a feature of competition in business methods (whether computer-implemented or not), as companies strive for competitive advantage. They argued that copying of business methods can spur new ones intended to (re)gain advantage. Patents � ie monopolies � could reduce innovation and consumer choice."

    • Petition for a Software Patent Free Europe

  • Resources relating to software Patents

  • Software Patents vs. Free Software by Bruce Perens: http://perens.com/Articles/Patents.html

    • Software Patents vs. Free Software

      Bruce Perens <[email protected]>

      Permission is granted to copy and distribute this document, and to incorporate it in full or partial form in a news or editorial presentation, modifying the formatting as appropriate. Don't modify it in a way that would make me appear to have a different opinion than what I wrote.

      The opinions in this document are mine, not those of my employer.

      There's been a lot of press about my activities regarding software patents and the summit meeting that I've called on Free Software and The Law. Since the press tends to simplify things and sometimes misinterprets them, it's time for me to talk about the situation of Software Patents and Free Software in my own words.

      The original letters patent were the orders of a king. These early legal documents were often used to grant special privileges to the kings friends. Many letters patent granted a monopoly in a particular business to one family, forever. Anyone else who went into the same business would have been defying the orders of the king, so off with their heads!

      The U.S. is important to this discussion because it's the cradle of software and business-method patents. Most other nations don't allow such things to be patented, although certain companies are lobbying to change that. U.S. law, being a descendent of English Common Law, has preserved the patent, though in a more limited sense than its royal application. The Constitution of the United States states:

      Congress Shall Have Power To [...] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

      This is the entire justification for the existence of the U.S. copyright and patent system. Both exist to promote the progress of science and the useful arts: technology, literature, and so on. If the patent and copyright system do not have the effect of promoting progress, they aren't constitutional. Note that the constitution also says limited times. Patents and copyrights are meant to expire - if they don't, they aren't constitutional.

      So, we might consider whether or not software patents are actually promoting progress, or if they might even be hindering it. Surprisingly, there is no hard evidence that software and business method patents promote progress. There don't seem to be any good scientific studies on the issue.

      The U.S. patent system rewards an inventor with a temporary monopoly on their invention, in exchange for full public disclosure of the invention. This is supposed to be an incentive for inventors to disclose their work instead of keeping it secret. The Free Software paradigm seems to be a better means than a patent to get people to disclose their ideas. The large body of free software developed in just the past few years shows us that Free Software has influenced many people to publish, and of course Free Software avoids the monopoly inherent in a patent. Perhaps that alone is sufficient reason for a critical re-examination of the idea of software patents.

      When a patent expires, after 20 years, the invention goes into the public domain, which means that it's everyone's property. Thus, you can use the principle of an expired patent for free, you won't have to pay the inventor a royalty. You are only allowed to patent something that you really did invent, that hasn't been publicly used or disclosed before. In the U.S., you get a year to file your application after you create an invention. There are big penalties for lying on your application, for example, for falsifying the date of an invention.

      Large companies like HP most often use patents defensively. Since they know that other companies will apply for patents and then sue for patent infringement, a company that wants to defend itself files its own patents to use against its competitors. This creates a détente between the company and its competitors - each could sue the other in a similar way, so neither one does. The competing companies generally enter a cross-licensing agreement, licensing all of each others patents. Each company thus negates the other company's power to sue over its patents. Large companies are generally cross-licensed with many other large companies, including their own competitors, and thus their power to sue each other over patent infringement is mostly nullified.

      So, since the big companies patents all are used to nullify each other, the patents really have zero value to the companies. Why, then, do they bother with patents at all? I think the primary reason is a typical feature of détente: if you stop behaving offensively before the other guys do, you lose. If one large company stopped filing new patents, the other companies would no longer have a reason to cross-license with that company, and then the other companies would start filing patent-infringement lawsuits.

      There are a few other reasons that large companies continue to file patents: some of them want to use them to fight a competitor who isn't cross-licensed, for example a Free Software developer who writes a competing program. Some of them use patents to give investors an impression that the company has value. However, the vast majority of software patents, some say as high as 95% of them, are actually invalid due to the existence of prior art. Prior art means that someone else has invented the same thing before, and has published or disclosed the invention in some way, thus invalidating all future patents on that invention. Because software patents are so often invalid, the investor is being deceived. When I've taken this up with companies who are looking for investment and list their patents as major assets, I usually get an answer like yes, we know that is a problem for software patents in general, but ours are enforcible. Yeah, right.

      So, who profits from all of this if the large companies don't? Not the small and individual inventors, they can't afford to sue to collect on their own patents. The system does keep a lot of patent lawyers in business, costing companies Billions every year. It may also keep some research scientists in business, since companies sponsor research departments so that they can have a steady flow of inventions upon which to file patents.

      Of course, getting companies to sponsor research is a good thing, and you might even think it justifies the patent system. However, wouldn't it be better if the research was targeted to benefit the company and its customers rather than to provide ammunition for an eternal stalemate of a patent war? And wouldn't it be better if the inventions of publicly-funded research organizations like universities were in the public domain, since the public has paid for them? Instead, they are tied up with patents and sold. Some universities claim that they need to be able to sell that patent monopoly, or they won't be able to entice anyone to develop their ideas commercially. Although this is a dubious claim, a U.S. law actually mandates patenting as part of the "technology transfer" of publicly-funded research.

      A trend over the past decade has been a new kind of patent parasite company that exists only to sue other companies. The parasite buys up patents and then files infringement lawsuits against other companies with deep pockets and a lot to lose. The parasite offers licensing terms of a few tens or hundreds of thousands of dollars, versus a cost of Millions for the victim to successfully defend themselves in a lawsuit. The victim generally caves in and pays the license fee, even though they could eventually have proven the patent to be invalid in court. So, this is another tremendous drain of company funds caused by the patent system. Parasites don't enter cross-licensing agreements, so they represent one of the worst offensive uses of patents.

      The cross-licensing defense works well if you have a lot of patents to use as ammunition, as a large company might, but the Free Software community has only a handful of patents held by a few individual developers, and thus ends up being an innocent bystander injured by a war of giants. Since it costs tens or hundreds of thousands of dollars in legal fees to successfully file an enforcible patent, we don't expect to get many more of them. So, scratch the cross-licensing defense for now.

      Since most software and business method patents are actually invalid, why don't we just prove that in court? It often takes Millions of dollars and years of time to win a single patent case. I don't know many Free Software developers who could afford to fight even one patent, and we are faced with hundreds of thousands of them.

      Then, why don't we just "fix" the patent system? Well, the best way of fixing it might simply be to dispose of software and business method patents entirely, but most of the proposals to "fix" the patent system simply try to make the problem only a little bit better. For example, there are plans to provide patent examiners with more prior art so that they will reject more of the invalid patents, but not nearly enough to solve the problem. Such proposals can only be treated as interim strategies, poor defenses to tide us over until we can really solve the problem.

      Arguments for killing software and business-method patents abound. I'll list a few:

      • If the existence of software and business system patents doesn't actually help to advance science and the useful arts, then they are constitutionally unjustified.
      • Software patents are all on applications of an extremely versatile hardware device called a "computer". But then isn't the computer, not its software, the thing that should have been patented?
      • The 20-year term of software patents is generally much longer than the useful lifetime of the invention. This circumvents the constitutional requirement that patents have a limited term, because the invention is so obsolete as to be without any remaining value at all by the time it reaches the public domain.
      • The monopoly that business-method patents create on a particular form of business can constitute a violation of the anti-trust laws.
      • If other countries start accepting software and business method patents, they will in effect be creating a U.S.A. Tax paid by their own citizens. Those countries would just take all of the patent royalties paid by their own companies and send them to the U.S.A., where the software and business-method patent owners predominantly are today.
      But the best argument for this essay is that software patents block Free Software development. Today, they are a nuisance, tomorrow they could be much more. There are companies that see Free Software, especially GNU/Linux, as an interloper to be shut down, a competitor to be eliminated. Some of these companies have increased the rate at which they file new patents. It's not impossible that these companies and their business partners could start going after Free Software developers, en masse, with patent infringement lawsuits. Since essentially none of us can afford to defend ourselves, most developers would be forced to cave in, withdraw their software, and stop participating in Free Software development. We must be ready with a defense, before that day comes.

      Ironically, some of the biggest patent holders are the Free Software Community's own partners, companies like IBM and HP that have aggressively incorporated GNU/Linux into their business plans and expect significant revenue from it before long. IBM is said to hold 10% of software patents, and HP is one of the largest patent holders in general. It's important for us to start a dialogue with these and other partners. That's why I am calling a summit meeting on Free Software and The Law. Patents will be a full-day topic, with DMCA, UCITA, license law, and other legal issues covered on a subsequent day. Unfortunately, this isn't a public meeting. When asked about that, Richard Stallman said inviting a public audience to a negotiation isn't the best way to get an agreement. However, I've invited a broad slate of Free Software representatives, covering all of our various viewpoints, and will invite a few more.

      The meeting will simply be a discussion and a negotiation, none of it is set in stone, but there are some things that the Free Software community representatives might be likely to ask for. For example, we might ask for some assurance that our corporate partners aren't going to sue us. When Eric Raymond and I asked this of an IBM representative recently, the answer was we're not prosecuting our patents against Open Source developers. HP hasn't sued any of us either, although they haven't stated their policy in so many words. But perhaps the Free Software developers, enthusiastic partners of IBM, HP, and other companies, deserve a little more formal assurance of that policy and its continuation.

      Another issue we might discuss is how to defend a Free Software developer when he or she is sued for patent infringement. It might be fair to ask our partners, who have much deeper pockets than ours, to help vest a fund for our defense with an organization like FSF or EFF. Or perhaps we should deal with each lawsuit as it comes up? With the DeCSS lawsuits, we found that EFF can defend less than one case per year. We'll need more than that.

      Since our software has proven so useful and effective in our partner companies, I think the Free Software community would be negotiating from a position of strength. We've proven our worth to our partners, and now we deserve to understand how far they'll go for us. Hopefully, that will come out in the summit discussion.

      So, you can see that we have a lot to talk about, both at the summit and in the Free Software community in general. The summit is being held on August 31 and September 1, in San Francisco, immediately after the LinuxWorld conference there. Thus, many of the key players will be in town. HP has generously promised enough funds to provide the meeting facilities and catering, and to cover travel and lodging of some free software representatives who can not pay their own way. HP says they are open to having equal co-sponsors, so that the conference won't appear to be predominantly HP's. SSC has promised to cover travel and lodging expenses for Richard Stallman, and other co-sponsors will probably step up before the meeting.

      I hope I've cleared up some mis-perception of what I've been working on, and if this essay has been educational for you, I consider that an achievement in itself. Of course, I'm open to your ideas. If you have comments or questions, please feel free to write me at [email protected] or use the phone number listed on my web site.

      Many Thanks

      Bruce Perens

  • Articles and Editorials by Bruce Perens

  • Preparing for the intellectual-property offensive - Patents may be the ground on which the open source battle is won or lost by Bruce Perens
    • At http://www.linuxworld.com/linuxworld/lw-1998-11/lw-11-thesource.html

    • At http://www.linuxworld.com/linuxworld/lw-1998-11/lw-11-thesource.html

    • One of the best defenses we have today is the fully disclosed nature of free software. If a patentable idea is used in free software first, and that software is distributed, we can use that software as evidence of "prior art" in overturning a patent. However, this is only a partial defense. The filer of a patent can claim that the invention was created up to a year previous to filing.

      For example, AT&T informed me that it was filing a patent on the key principle in my "Electric Fence" malloc() debugging package almost a year after I first posted the source code to a Usenet newsgroup. The company claimed it had invented the principle before my posting. Although AT&T hasn't bothered me so far, there is a possibility that I will be hit with an expensive patent-infringement lawsuit sometime in the next 12 years or so. There's a good chance I'd win the suit, but I'd go broke in the process.

  • A tale of two software patent strategies

  • (US Perspective) Patent History Patent Controversy is Not New

  • A history of patents

  • Five hundred years of patents
    • At http://www.patent.gov.uk/patent/history/fivehundred/index.htm

    • At http://www.patent.gov.uk/patent/history/fivehundred/origins.htm

    • Origins

      The origins of patents for invention are obscure and no one country can claim to have been the first in the field with a patent system. However, Britain does have the longest continuous patent tradition in the world. Its origins can be traced back to the 15th century, when the Crown started making specific grants of privilege to manufacturers and traders.

      Such grants were signified by Letters Patent, open letters marked with the King's Great Seal. The earliest known English patent for invention was granted by Henry VI to Flemish-born John of Utynam in 1449. The patent gave John a 20-year monopoly for a method of making stained glass, required for the windows of Eton College, that had not been previously known in England.

    • At http://www.patent.gov.uk/patent/history/fivehundred/tudors.htm

    • Tudors and Stuarts

      In the time of the Tudors it became common practice for the Crown to grant monopolies for trades and manufacturers, including patents for invention. During the 30 years from 1561 to 1590, Elizabeth I granted about 50 patents whereby the recipients were enabled to exercise monopolies in the manufacture and sale of commodities such as soap, saltpetre, alum, leather, salt, glass, knives, sailcloth, sulphur, starch, iron and paper. However, the Queen did refuse to grant patents in certain cases. For example, in 1596 Sir John Harrington's request for a patent on his design for a water closet was turned down on the grounds of propriety.

      Under both Elizabeth I and her successor James I, the granting of monopolies for particular commodities became increasingly subject to abuse. It was not uncommon for grants to be made for inventions and trades that were not new; for example, a patent granted by Elizabeth I for the making of knives with bone shafts was held by the Court of Queen's Bench to be unsustainable because these articles were already being made in the Realm. In some instances grants were made to royal favourites or for the purpose of replenishing royal coffers.

      In 1610, James I was forced by mounting judicial criticism and public outcry to revoke all previous patents and declare in his "Book of Bounty" that 'monopolies are things contrary to our laws' and "we expressly command that no suitor presume to move us". He stated an exception to this ban for "projects of new invention so they be not contrary to the law, nor mischievous to the State". The doctrine of the public interest was thus introduced into the patent system at a very early date and the words were incorporated into the Statute of Monopolies of 1624. Section 6 of the Statute rendered illegal all monopolies except those "for the term of 14 years or under hereafter to be made of the sole working or making of any manner of new manufactures within this Realm to the true and first inventor"; such monopolies should not be "contrary to the law nor mischievous to the State by raising prices of commodities at home or hurt of trade".

    • At http://www.patent.gov.uk/patent/history/fivehundred/eighteenth.htm

    • The eighteenth and nineteenth centuries

      In the 200 years after the Statute of Monopolies, the patent system developed through the work of lawyers and judges in the courts without government regulation. In the reign of Queen Anne, the law officers of the Crown established as a condition of grant that "the patentee must by an instrument in writing describe and ascertain the nature of the invention and the manner in which it is to be performed". James Puckle's 1718 patent for a machine gun was one of the first to be required to provide a "specification", as this instrument became known. The famous patent of Arkwright for spinning machines was voided for the lack of an adequate specification in 1785, after it had been in existence for 10 years. On the other hand, extensive litigation on Watt's 1796 patent for steam engines established the important principles that valid patents could be granted for improvements in a known machine, and for ideas or principles, even though the specification might be limited to bare statements of such improvements or principles, provided they could be readily carried into effect, or were "clothed in practical application".

      Britain's patent system served the country well during the dramatic technological changes of the industrial revolution. However, by the mid-19th century it had become extremely inefficient. The Great Exhibition of 1851 accelerated demands for patent reform.

      Up to that time, any prospective patentee had to present a petition to no less than seven offices, and at each stage to pay certain fees. The procedure was described in exaggerated form, somewhat derisively, by Charles Dickens in his spoof, "A Poor Man's Tale of a Patent", published in the 19th-century popular journal "Household Words"; Dickens' inventor visits 34 offices (including some abolished years before). To meet public concerns over this state of affairs, the Patent Office was established by the Patent Law Amendment Act of 1852, which completely overhauled the British patent system and laid down a simplified procedure for obtaining patents of invention. Legal fees were substantially reduced and the issuing of separate patents for each nation of the Union was replaced by the publication of a single UK patent. The office of Comptroller General of Patents and a staff of patent examiners were brought into being by a subsequent Act in 1883 to carry out a limited form of examination; mainly to ensure that the specification described the invention properly, but without any investigation into novelty.

  • European Patent Office - Historical Dates

  • Copyright Contradictions in Scholarly Publishing

  • Eldred v. Ashcroft (This site collects material related to the constitutional challenge of the Sonny Bono Copyright Term Extension Act, which extended by 20 years both existing copyrights and future copyrights.): http://eldred.cc/

  • Eldred v. Ashcroft : Richard Epstein: All Roads lead to Rome (But the key concern now is not with the CTEA's wisdom, but with its constitutionality, which is now before the US Supreme Court in Eldred v. Ashcroft. The petitioner's case, spearheaded by my co-columnist Lawrence Lessig, rests on two claims. The first is that the CTEA falls outside Congress's power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective discoveries and inventions".

    The second argument is that the CTEA falls foul of the US Constitution's guarantee of freedom of speech. A third road, not pressed before the Supreme Court, treats the CTEA as a violation of the judge-made "public trust" doctrine, which, in its narrowest form, holds that Congress cannot give away public lands and waters to private individuals.):

    http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&cid=1031119055342&p=1020498309075

  • Eli Noam: The web is bad for democracy: http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&c=StoryFT&cid=1028186097523&p=1020498309075
  • Stop typing amazon.com - Start typing noamazon.com 

  • 
To: [email protected]

Subject: RSA

From: Dave

Date: 23 Oct 2002 21:14:08 +0100



The RSA story of the previous discovery at GCHQ is documented in `The

Code Book' by Simon Singh (ISBN 1-85702-889-9): ''By 1975, James

Ellis, Clifford Cocks and Malcolm Williamson had discovered all the

fundamental aspects of public-key cryptography''.  (RSA was 1977.)

''Cocks recalls: 'From start to finish, it took me no more than half

an hour.' ''.  There's probably more on this On The Web, but I haven't

had time to look.



While the work wasn't published (or even properly developed,

apparently), Diffie/Hellman/RSA public key cryptography was clearly

amenable to independent discovery at more-or-less the same time,

obviously not spurred on by any incentive of patents.



Another example is FFT, apparently basically done by Gau� rather

before it was patented.  (I don't remember where I found this)  

I guess this wasn't actual FFT, but

the basis of the divide-and-conquer approach.  Something that wasn't

patented was Tony Hoare's discovery of Quicksort, which was of great

influence in the important field of computer sorting, analogous to

FFT.  I can't remember whether he was actually attacking the problem

for essentially commercial reasons or not.



The basic question that policy makers have to ask is whether the

potentially iniquitous granting of patent monopolies in a particular

area is overall in the public good by encouraging research and

publication of the results.  (Originally patents were to counter the

trade secrets of the Guilds and the like by providing an incentive to

reveal the methods -- they were never meant to protect inventors, as

often said.)  While it's reasonable to think that's so in cases like

pharmaceuticals, it's implausible in most other areas, including

software/algorithms and there seems to have been no research to show

otherwise.  (That's even if the subject isn't trivial and/or

well-known.)  The RS should presumably be interested in such

experimental/observational questions.  I think Stallman's papers under

'philosophy' @www.gnu.org talk about this with reference to an

Economist article and a statement that (software?) patents are

basically only useful to IBM as an offensive weapon or, perhaps, a

defensive one, rather than encouraging innovation.



HTH.