On Tue, 2003-06-17 at 05:10, Richard Schilling wrote: > I know this is somewhat of a digression for this list, but it's > entirely relevant for all of us to correctly understand > patent/trademark law to some degree - especially because we're an > international group.
Yup, the current round of international intellectual property regime "harmonisation" - which seems to boil down to recasting local patent law in the shape of US law, as a response to direct pressure by large multinationals and the US govt, as well as indirect pressure through the WTO - has the potential to serious restrict the ability to write and distribute free, open source software. > > On 2003.06.15 23:59 Tim Churches wrote: > > Richard Schilling <[EMAIL PROTECTED]> wrote: > > > > > > Don't fret too much, Tim. At least in the U.S. such patents can be > > > challenged on the grounds that a) someone already invented it and/or > > > b) > > > it's too obvious (e.g. patenting fundamental computer science > > > concepts/processes like multithreading). > > > > Both of those are true everywhere. They are part of the international > > patent > > conventions. But often it is not clear cut whether related work really > > represents > > prior art or not, which means that the issue can only be settled in a > > court of law. I > > Correct. Open Source software has an advantage however in that it can > usually be shown (e.g. is well documented) when a particular product > was released. Few, for example doubt that Linux was first released in > 1992. In theory any form of open publishing will suffice to prevent patenting of ideas, but in practice it is better to ensure that the publication appears in a well-known bibliographic database which patent examiners are likely to search. I not sure that release of an open source package on SourceForge or Savannah or a personal Web site is enough to prevent patent examiners overlooking the new ideas embodied in said software (if there are any). Slightly more formal publication is also desirable in my view. > Did you know that the owner of the term "Internet Explorer" > successfully defended his trademark against Microsoft. Sure, but that has nothing to do with your previous observation about open source providing an advantage in protecting against patents by others. > > He not only showed he was the owner of the trademark, he also showed > that he lost business because Microsoft stole the name, and got enough > money from Microsoft to pay legal fees, his debts, etc . . . (he was in > bankruptcy at the time). But, the point is he was successfull, and > had it not been for settling with Microsoft out of desperation you > might not be seeing the name Internet Explorer on Microsoft's product. I'm pleased for him. The moral is: it may be worth paying to register trade marks. > > Yes, cost of defense is also a problem. However the legal conventions > can be enough to settle problems before going to trial. Companies > would like litigation to be a last resort, and I think a lot of people > forget that. Sure - companies initiating patent infringement suits against competitors (including open source competitors) love to receive bags of cash as an out-of-court settlement. > > > > I haven't seen patent challenges with open source code happen yet, > > > but > > > I take great comfort in the publically available repositories that > > > document pre-existing inventions. Should it be discovered that some > > > college student invented the process first, Timeline would owe > > > him/her > > > some money . . . > > > > Huh? No, that is not the case at all. If the student had patented the > > idea first, then > > sure, but the act of publically describing an invention merely > > In the U.S. the owner of an invention is the first person to invent it > (which occurs when you first start *writing down your notes*). In the > UK, it's the first person to file. So, in the U.S., such a student > would indeed have the rights to defend their invention. It has > happened before that the inventor defended his/her invention when > someone else went to get a patent. You might be surprised, but a > certified letter from a lawyer can make a whole company jump quickly. Yes, I am aware that the US has the crazy arrangement that you can still file for a patent up to a year after publication of the idea (it is crazy because it promotes the retrospective hijacking of ideas). But busting someone elses patent application (or issued patent) on the basis of prior art is different from obtaining a patent on the idea oneself. The latter still needs the deliberate and expensive steps of filing and pursuing an application. > > You might be surprised how easy it is to document your inventions. > Publishing your code online, in a public place, in a way that is > verifyable publically certainly does it (e.g. at Sourceforge). As long > as you document when your invention occurred (which is the moment you > put pen to paper), you're protected. You can also do other nice > tricks, like mail your source code to yourself (it will have the > postmark and the cancellation date), and don't open the envelope. Or, > burn a CD Rom, or even print out your idea, sign along with a witness, > take a picture of it next to the day's newspaper (with the date > visible), and file it away. It's all valid form of documentation. See my comments above, and serach the archives of this list for my previous posts on this topic. In theory you are correct, in practice it is wise to do more to ensure the visibility of your ideas to patent examiners. > > > prevents, in theory, > > others from patenting it, it doesn't automatically provide patent > > protection. You > > Well, you have to be proactive. If you don't enforce your rights you > get nothing, but at least sending a few certified letters is a start. > > > need to spend (lots) of time and money obtaining patents - which is > > one of the > > reasons why the entire system is tilted in favour of large > > corporations. > > A patent for an individual can run about $5,000. But registering the > official date of your invention can be done at the US PTO for under > $200. A small price to pay to get your ideas documented in the > government's archives. All code this group writes, for example ideally > should be filed under copyright at the US PTO. It's not that expensive. Copyright is automatic in most countries (it is here in Australia). But I thought we were talking about patents, and I'm afraid I remain implacably opposed to all software patents, and believe that the current level of patent protection given to pharmaceuticals, medical techniques and many other ideas is unconscionable because it deprives billions of people in poor countries of the benefits of this knowledge while keeping the rest of us rich and comfortable. Enough on this from me - I have already had this argument ad nauseum with Andrew Ho (who of course was correct <wink>). -- Tim C PGP/GnuPG Key 1024D/EAF993D0 available from keyservers everywhere or at http://members.optushome.com.au/tchur/pubkey.asc Key fingerprint = 8C22 BF76 33BA B3B5 1D5B EB37 7891 46A9 EAF9 93D0
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