Patents in Open Source: the important parts of real cases(google.github.io)
google.github.io
Patents in Open Source: the important parts of real cases
https://google.github.io/opencasebook/patents/
46 comments
Hi! I'm the author of this chapter of the casebook. I didn't expect it to show up here, but I'm happy to answer questions.
Sometimes I am grateful that I live in Europe where software patents are not a thing.
Ish. A shame the US courts chose to interpret the laws as licensing software patents.
Ish. A shame the US courts chose to interpret the laws as licensing software patents.
Judging from the number of Europeans listed in the HEVC patent pool (see https://www.mpegla.com/wp-content/uploads/avc-att1.pdf), I suspect that software patents are very much a thing in Europe. They just have to have the same kind of fudges that US software patents have to have (especially post-Alice).
> Sometimes I am grateful that I live in Europe where software patents are not a thing.
Unfortunately they are. Software patents are in theory forbidden, but... you can patent a broader patent which will also cover the software variant.
Example: You want to patent the linked list. Obviously you can't do that in Europe, this is software patent (this is also an obvious patent, but there are ways to hide the obviousness through legalese language). But you can patent a "method for linking an abstract document to another one through a well-identified numerical identifier". This isn't per se a software patent, as you could have a real-world implementation (think of Choose Your Own Adventure books), but then you _also_ patented the software version.
This is how IP experts claims that "there are no software patents in Europe" despite accepting tens of thousands of them.
Unfortunately they are. Software patents are in theory forbidden, but... you can patent a broader patent which will also cover the software variant.
Example: You want to patent the linked list. Obviously you can't do that in Europe, this is software patent (this is also an obvious patent, but there are ways to hide the obviousness through legalese language). But you can patent a "method for linking an abstract document to another one through a well-identified numerical identifier". This isn't per se a software patent, as you could have a real-world implementation (think of Choose Your Own Adventure books), but then you _also_ patented the software version.
This is how IP experts claims that "there are no software patents in Europe" despite accepting tens of thousands of them.
The situation in Europa is somewhat more complex:
1. The laws say "not patentable" (European Patent Convention Art. 52(2)(c) which you find also in the national patent laws as it is harmonized by the EPC members) with exeptions that this means only the thing (software) _as such_ (EPC Art 52(3)), so a patent involving an apparatus and software/algorithms can be valid if the software provides non-obvious technical improvement -- which is the legal domain of patents. Pseudo-technical stuff like "it's technical because it runs on a computer and therefore has to move bits around for which we need electrical signals which are technical" should make it void, as technical means something with natural forces, e.g. a machine doing stuff in the real world -- in which case the software part makes it technical better. Software used for other non-technical stuff in the technical apparatus (like making more economic, searching/displaying information, etc.) also should not count, as it is non-technical.
2. However EPA practice seems to be more lax then the courts regarding the technicality requirements. And with the masses of patents being granted and only those go to the court where two parties see themselves in conflict, there are many already and they are getting more
More Details on Wikipedia.
And guess what?
Even if your company does not participate in this shitshow in Europe as the legal situation is _somewhat_ clear (as long they don't want to change the law again, like another commenter mentioned: there were several initiatives). If it is big enough to care about patents at all, it is probably also big enough to be doing business in USA and plays the game there, even if only for defensive purposes, as this phenomenon is even more widespread/serious there.
So there you can have it all: be an European employee, living in Europe, working for an European Software Company (doing nothing technical) in Europe and still involved in this mess, even as a (US) patent holder. (The good news: for successful patent registrations they have to pay you extra per law, at least in Germany.)
Just search on Google Patents for patents from (big) European Software Companies. You'll find a lot, but mostly registered in the US, at least from my sampling. And the stuff you'll find is not only from the colleagues in the US subsidiaries.
(Edit: Italics Formatting, Fix: does-->does not / Delete+Repost actually, as it did not save the update.)
1. The laws say "not patentable" (European Patent Convention Art. 52(2)(c) which you find also in the national patent laws as it is harmonized by the EPC members) with exeptions that this means only the thing (software) _as such_ (EPC Art 52(3)), so a patent involving an apparatus and software/algorithms can be valid if the software provides non-obvious technical improvement -- which is the legal domain of patents. Pseudo-technical stuff like "it's technical because it runs on a computer and therefore has to move bits around for which we need electrical signals which are technical" should make it void, as technical means something with natural forces, e.g. a machine doing stuff in the real world -- in which case the software part makes it technical better. Software used for other non-technical stuff in the technical apparatus (like making more economic, searching/displaying information, etc.) also should not count, as it is non-technical.
2. However EPA practice seems to be more lax then the courts regarding the technicality requirements. And with the masses of patents being granted and only those go to the court where two parties see themselves in conflict, there are many already and they are getting more
More Details on Wikipedia.
And guess what?
Even if your company does not participate in this shitshow in Europe as the legal situation is _somewhat_ clear (as long they don't want to change the law again, like another commenter mentioned: there were several initiatives). If it is big enough to care about patents at all, it is probably also big enough to be doing business in USA and plays the game there, even if only for defensive purposes, as this phenomenon is even more widespread/serious there.
So there you can have it all: be an European employee, living in Europe, working for an European Software Company (doing nothing technical) in Europe and still involved in this mess, even as a (US) patent holder. (The good news: for successful patent registrations they have to pay you extra per law, at least in Germany.)
Just search on Google Patents for patents from (big) European Software Companies. You'll find a lot, but mostly registered in the US, at least from my sampling. And the stuff you'll find is not only from the colleagues in the US subsidiaries.
(Edit: Italics Formatting, Fix: does-->does not / Delete+Repost actually, as it did not save the update.)
[deleted]
Stay alert, then. Software patents went close to become real in 2002, and come back regularly since then, pushed by a variety of lobbies and particularly large US software houses (Microsoft, Adobe, Oracle, IBM and friends).
So far they've been shot down every time by the Parliament. But the EU Patent Office, the EU administration in general and the Commission are all strongly in favor of software patents.
So far they've been shot down every time by the Parliament. But the EU Patent Office, the EU administration in general and the Commission are all strongly in favor of software patents.
Does that mean the MP3 algorithms implemented in software form were not patentable in Europe?
I know that software patents and licenses are a murky field, but I was wondering if anyone knows of any licenses or ideas that fit a situation I am in. I can't go into much detail but this is a general description of my situation:
I am working on a startup idea that has a component that I would like to 'defend'. I am trying to improve a process for developers and I think this new component is a big piece of solving the problem. The component is a unique/new part of a pipeline, but there are already established companies working on pipelines to solve the same problem. This component executes on the client side, so it can not be kept as a secret process that happens server side. I know that once it is viewed by competitors, they could reimplement the idea without directly using the 'source code' and add it to their pipeline/product. I want to be able to distribute my project to potential users and allow them to use it freely while also preventing competitors from copying the ideas into their own products.
I know that patents were originally created to incentivize innovation by preventing established competitors from simply copying ideas/processes from new competitors, and I feel that I am in that situation.
One idea I had is to separate the unique component into its own library then give my own project the right to license/distribute the library, but I do not know if there are any off the shelf licenses that support that.
I am working on a startup idea that has a component that I would like to 'defend'. I am trying to improve a process for developers and I think this new component is a big piece of solving the problem. The component is a unique/new part of a pipeline, but there are already established companies working on pipelines to solve the same problem. This component executes on the client side, so it can not be kept as a secret process that happens server side. I know that once it is viewed by competitors, they could reimplement the idea without directly using the 'source code' and add it to their pipeline/product. I want to be able to distribute my project to potential users and allow them to use it freely while also preventing competitors from copying the ideas into their own products.
I know that patents were originally created to incentivize innovation by preventing established competitors from simply copying ideas/processes from new competitors, and I feel that I am in that situation.
One idea I had is to separate the unique component into its own library then give my own project the right to license/distribute the library, but I do not know if there are any off the shelf licenses that support that.
>I want to be able to distribute my project to potential users and allow them to use it freely while also preventing competitors from copying the ideas into their own products.
1. If your product is truly great and you build it well, chances are your own momentum will carry you into building a great moat. Most SaaS companies, with novel technology, have very few similarly sized competitors. Your time is best spent building your company as technology rarely "makes" the company.
2. If a startup steals your idea and grows fast enough for you to notice (with enough VC money or something) they will just ignore you until they are big enough to pay you off. While you are spending money on lawyers they will be spending money on customer acquisition.
3. If a large company steals your idea, they will either out lawyer you or counter sue with whatever patent library they have.
1. If your product is truly great and you build it well, chances are your own momentum will carry you into building a great moat. Most SaaS companies, with novel technology, have very few similarly sized competitors. Your time is best spent building your company as technology rarely "makes" the company.
2. If a startup steals your idea and grows fast enough for you to notice (with enough VC money or something) they will just ignore you until they are big enough to pay you off. While you are spending money on lawyers they will be spending money on customer acquisition.
3. If a large company steals your idea, they will either out lawyer you or counter sue with whatever patent library they have.
Definitely agree that a great product creates the most momentum and biggest moat! I figured this thread would be a good place to have a discussion and hear some other peoples experiences (and doesn't cost me lawyer fees).
I'll throw out there that I've never seen a case of patents helping a software startup that intends to make a product. Patents take a lot of capital to file and defend, and at the end of the day larger entities will simply stonewall for longer than you can pay your lawyers.
I've only seen it pay out for small players with non practicing entities. Where you patent something, never intend to build your own product, but wait for someone else (hopefully a large company) to clearly infringe and sue them for less than the seven figures of a patent trial so they they just roll over. Because you haven't made anything they can't countersue with their own patents.
I've only seen it pay out for small players with non practicing entities. Where you patent something, never intend to build your own product, but wait for someone else (hopefully a large company) to clearly infringe and sue them for less than the seven figures of a patent trial so they they just roll over. Because you haven't made anything they can't countersue with their own patents.
Patents do sound like the thing you want (assuming nobody has "done" it before), but you should talk to an actual lawyer.
> but you should talk to an actual lawyer
This. a good lawyer will cost money.
It's worth it.
I did pretty much exactly that, last week.
This. a good lawyer will cost money.
It's worth it.
I did pretty much exactly that, last week.
Any tips on selecting one?
I have a friend who is an IP lawyer, but I live on Long Island, NY.
It's hard to give really specific advice on this but do you have friends who work in tech who've filed patents? If so, they probably have worked with a patent attorney hired by their company to convert their invention into a patent application. Ask about their experience, whether the patent attorney properly understood their invention, whether the patent attorney was responsive, etc.
In general, as a patent attorney who's worked both in large international law firms and in a smaller firm (patent boutiques) that deals just with patent prosecution, my general advice would be to try and find a good patent boutique. In general the quality of the work will probably be about the same and the patent boutique will probably charge you less money.
In general, as a patent attorney who's worked both in large international law firms and in a smaller firm (patent boutiques) that deals just with patent prosecution, my general advice would be to try and find a good patent boutique. In general the quality of the work will probably be about the same and the patent boutique will probably charge you less money.
This isn’t about IP, but it is a pretty good screed on using lawyers.
It’s a video from a meetup, by the principal of a design firm, about the importance of using legal counsel.
https://vimeo.com/22053820
It’s a video from a meetup, by the principal of a design firm, about the importance of using legal counsel.
https://vimeo.com/22053820
> One idea I had is to separate the unique component into its own library then give my own project the right to license/distribute the library, but I do not know if there are any off the shelf licenses that support that.
> I know that once it is viewed by competitors, they could reimplement the idea without directly using the 'source code' and add it to their pipeline/product.
These two things appear to be in conflict. If a competitor could easily re-implement the idea after seeing it work, then why do you care about exclusive rights to the library containing your implementation?
> I know that once it is viewed by competitors, they could reimplement the idea without directly using the 'source code' and add it to their pipeline/product.
These two things appear to be in conflict. If a competitor could easily re-implement the idea after seeing it work, then why do you care about exclusive rights to the library containing your implementation?
I think that the fact that it is easy to re-implement once seen is what is interesting. From my understanding, the patent system was designed to protect ideas that once in the 'public eye' could easily be copied by companies with more resources.
A hypothetical example is that a small toy maker comes up with the idea for the Big Wheel (https://www.amazon.com/Original-Big-Wheel-Inch-Tricycle/dp/B...). They patent the design for the concept and begin manufacturing the Big Wheel. Once on the market, a big toy manufacturer could easily begin producing the exact same product because they have the resources to, so the fact that it is easy to reimplement does not mean that it is contradictory for the inventor to want a patent. The patent on the 'invention' of the Big Wheel would be the only thing the small inventor has to protect themselves.
I know that the world and community has benefited from open source and freely available software and that there is a bad history of software companies using the patent system in debatable ways, but there are also cases where it can look like big companies take advantage of the free and open ecosystem in ways that disincentivise future innovations.
A hypothetical example is that a small toy maker comes up with the idea for the Big Wheel (https://www.amazon.com/Original-Big-Wheel-Inch-Tricycle/dp/B...). They patent the design for the concept and begin manufacturing the Big Wheel. Once on the market, a big toy manufacturer could easily begin producing the exact same product because they have the resources to, so the fact that it is easy to reimplement does not mean that it is contradictory for the inventor to want a patent. The patent on the 'invention' of the Big Wheel would be the only thing the small inventor has to protect themselves.
I know that the world and community has benefited from open source and freely available software and that there is a bad history of software companies using the patent system in debatable ways, but there are also cases where it can look like big companies take advantage of the free and open ecosystem in ways that disincentivise future innovations.
Did Big Wheels have any actual patents other than design patents (which aren't much related to functional patents). Was there not a penny-farthing trike before?
I was just using that as an example haha I don't know anything about the actual history of the product. I just wanted to give an example of how the patent system could be used to protect small companies/inventors because it seems to mostly be used by established players now a days.
A less hypothetical example might be Stories or Clubhouse, both of which got cloned as quickly as they hit the market.
And right here is the dilemma of IP law. A patent would give you an incentive to make a product that you might not otherwise make, but it also prevents a competitor from making a better product that would be a better outcome for consumers.
The IP law is here to ensure knowledge disseminates... So why "defend" stuff ? Why "protect" ? Just disseminate and if you're idea has merit and requires profound knowledge then you'll naturally have customers... But maybe it won't be a winner-takes-it-all...
If you’ve got a good idea, just build it. Don’t put any energy into trying to restrict the freedoms of other people.
Forget everything you’ve read about patents. Licenses are for losers. There is no such thing as intellectual property, only intellectual slavery. It’s a sham system that allows the ovarian lottery to persist far longer than it should. The public domain is the only game that matters.
Forget everything you’ve read about patents. Licenses are for losers. There is no such thing as intellectual property, only intellectual slavery. It’s a sham system that allows the ovarian lottery to persist far longer than it should. The public domain is the only game that matters.
To echo this, every story I've ever heard of patent or IP protections making or breaking a company come across as classic exceptions that break the rules stories. These rules are made for the behemoth companies of older eras who have become institutionalized. The patents are how they negotiate their niche with the other institutions.
Which is to say, unless you're an institution or know how to play on their field, patents are useless to you and your customers.
Which is to say, unless you're an institution or know how to play on their field, patents are useless to you and your customers.
What horrible advice. Intellectual property exists even if you choose to close your eyes and jam your fingers in your ears.
Can you design an experiment which detects whether a black box contains intellectual property?
If physics cannot detect it, how real is, it, really?
If it's just a social construct, then it's only real to the extent that people agree that it's real, and it's real only to those people who agree.
If physics cannot detect it, how real is, it, really?
If it's just a social construct, then it's only real to the extent that people agree that it's real, and it's real only to those people who agree.
Property in general is a social construct, not just intellectual property. When I say that something is my property, that refers to social/legal recognition of my rights over that thing. Even if that thing is tangible, there is still no black box experiment that can determine whether that thing is my property or not.
That is true; however, we cannot remove a tangible thing without it being obvious that it's lacking and unavailable to the owner. As a result, more people are on board with the tangible property social construct.
Intellectual property is more like, you and I have some tangible property, and I'm not allowed to tweak my property into the a particular configuration that is exhibited by your property (or equivalent forms), without permission.
That situation also defines privacy, and also secrecy.
I suspect more people are on board with caring about privacy and secrecy, than caring about copyright.
Intellectual property is more like, you and I have some tangible property, and I'm not allowed to tweak my property into the a particular configuration that is exhibited by your property (or equivalent forms), without permission.
That situation also defines privacy, and also secrecy.
I suspect more people are on board with caring about privacy and secrecy, than caring about copyright.
The courts agree it’s real. You can pretend that they don’t have any power over you, but you’ll be wrong.
[deleted]
It really does not. The term makes no logical sense. You cannot have property rights and copyrights and patents. They are fundamentally opposite ideas.
It would be like if the tobacco industry called cigarettes “cancer reducers” and we just all went along with it. Now imagine the tobacco industry controlled every books, television and news producer. That’s what’s happened with the information industry.
If you say otherwise you’re either lying or not thinking.
Now, if you want to make money and don’t believe in ethics, I think that’s a perfectly defensible position. But if you have morals, public domain is the only right thing to do.
It would be like if the tobacco industry called cigarettes “cancer reducers” and we just all went along with it. Now imagine the tobacco industry controlled every books, television and news producer. That’s what’s happened with the information industry.
If you say otherwise you’re either lying or not thinking.
Now, if you want to make money and don’t believe in ethics, I think that’s a perfectly defensible position. But if you have morals, public domain is the only right thing to do.
Yea I spend 99% of time actually working on the product, but I have been also thinking about this recently as once you choose a license it has long lasting consequences and is hard to change (i.e. Elasticsearch). Figured this thread would be a good place to have a discussion though.
That's really only because elastic was opensource, benefited greatly from that, and then changed their mind when it was no longer convinent.
I assume you are not making it open source if you are considering patenting it. Much of the complications of the elastic search case wouldn't arise in the proprietary software case.
I assume you are not making it open source if you are considering patenting it. Much of the complications of the elastic search case wouldn't arise in the proprietary software case.
I’d say go public domain.
SQLite did. Eats more and more of the DB world every year.
The web is public domain. Don’t need to explain that.
So is tcp/ip.
the great ones are public domain. GPL et al are a clever hack to weaponize copyright laws against themselves, but at the end of the day the solution we need is an amendment repealing Article I, Section 8 clause 8.
SQLite did. Eats more and more of the DB world every year.
The web is public domain. Don’t need to explain that.
So is tcp/ip.
the great ones are public domain. GPL et al are a clever hack to weaponize copyright laws against themselves, but at the end of the day the solution we need is an amendment repealing Article I, Section 8 clause 8.
But isn’t PostgreSQL and (sorry if I got the name wrong) MariaDB also open source?
I think the success of SQLite is the small size / no installation, but I agree it could only become as popular as it currently is due to its open source nature.
I think the success of SQLite is the small size / no installation, but I agree it could only become as popular as it currently is due to its open source nature.
SQLite is good and open source.
I've tried MariaDB on a Python project. The connector has bugs very hard to debug. I tried to download the python source, C++ source and failed to locate the bug. I tried to add issue but find nowhere to report. Finally I give up and use MySQL instead. It works like a charm.
Open source adds value, but IMHO being good is first priority.
> Licenses are for losers.
Even if you want to make your work usable by anyone without restrictions (what also have its place) you need to apply license! Otherwise it is fully copyrighted by default.
Even if you want to make your work usable by anyone without restrictions (what also have its place) you need to apply license! Otherwise it is fully copyrighted by default.
I am not a lawyer, I am not a patent agent.
I am assuming you are in US.
First you should do on your a patent search as well as just search -- to confirm that your idea is that unique.
Perhaps you will find that 70% is not unique -- but just did not work because the software tools or hardware was not ready yet.
This is ok. You can still patent how you use new, widely available tech, to solve a productivity issue or such.
Although simple 'method' claims are not as defensible as a triplet of 'method', 'process' and 'software program' claims.
Second, you cannot patent an invention after you made it available in public. So make sure that the timing and sequence of your events work. Also if your patent is not implementable (due to an error in description ) -- you cannot 'fix it later'. So you have to make sure that your idea workable (this actually easiest part for engineers/developers).
Third, do not do Provisional Patent application -- it s a waste of money. It is not a patent, it is an application to get you the 'date' sooner than if you would file a full patent
Then, assuming that you have resolved that you want to patent, and that your idea patentable.
You have to worry about your idea being not just stolen but also turned against you.
So a well funded corp, or well-funded/lawyered-up individual -- may not just do what you are doing, but patent it in a way that will claim that their idea is original, and that you have no right to use it.
So not only that they can steal it from you, they can prevent you implementing it -- if they are that malicious. It is harder if you release open source and explain your idea to all -- but still possible.
Of course, if you do not have money or enemies with a law degree -- the chances of those 'disabling' blows are low. But there is, unfortunately, little in the US judicial system to protect you from those.
Since US law does not require an inventor to implement a patent -- basically a lawyer who cannot code a production-ready system, can do this to you.
Utility patents in US allow you to patent method, process, program. In many patents you will see in Claims sections something is described as a 'method', then the same thing is a 'process', and then at the end it is mentioned that the program implements the 'process'.
So, in the claims section (the most important section), you could describe your invention as 'method', and as a process.
If you obtain the patent, you will continue to pay its fees, to keep it current. The max live of a utility patent is 20 years.
At some point in time, during that period you may turn the patent over to a foundation that allows it to be used by anybody (and they may continue paying fees to maintain it).
This will not protect you from somebody implementing your ideas, but will protect you from being virtually racketeered.
If you decide to work on a patent, consider a patent agent, rather than a patent lawyer.
Patent agents are cheaper (although I do not know by how much), they can represent you in-front of PTO boards, but not in court. Patent lawyers can do both.
If you patent eventually goes to litigation, you can get a patent lawyer at that time (although they will tell you that they are best to write patent too, to make it ready for any possible court defense).
Most patents never go to litigation, and many expire even before 20 years, because the patent assignee failed to pay maintenance fees.
I am assuming you are in US.
First you should do on your a patent search as well as just search -- to confirm that your idea is that unique.
Perhaps you will find that 70% is not unique -- but just did not work because the software tools or hardware was not ready yet.
This is ok. You can still patent how you use new, widely available tech, to solve a productivity issue or such.
Although simple 'method' claims are not as defensible as a triplet of 'method', 'process' and 'software program' claims.
Second, you cannot patent an invention after you made it available in public. So make sure that the timing and sequence of your events work. Also if your patent is not implementable (due to an error in description ) -- you cannot 'fix it later'. So you have to make sure that your idea workable (this actually easiest part for engineers/developers).
Third, do not do Provisional Patent application -- it s a waste of money. It is not a patent, it is an application to get you the 'date' sooner than if you would file a full patent
Then, assuming that you have resolved that you want to patent, and that your idea patentable.
You have to worry about your idea being not just stolen but also turned against you.
So a well funded corp, or well-funded/lawyered-up individual -- may not just do what you are doing, but patent it in a way that will claim that their idea is original, and that you have no right to use it.
So not only that they can steal it from you, they can prevent you implementing it -- if they are that malicious. It is harder if you release open source and explain your idea to all -- but still possible.
Of course, if you do not have money or enemies with a law degree -- the chances of those 'disabling' blows are low. But there is, unfortunately, little in the US judicial system to protect you from those.
Since US law does not require an inventor to implement a patent -- basically a lawyer who cannot code a production-ready system, can do this to you.
Utility patents in US allow you to patent method, process, program. In many patents you will see in Claims sections something is described as a 'method', then the same thing is a 'process', and then at the end it is mentioned that the program implements the 'process'.
So, in the claims section (the most important section), you could describe your invention as 'method', and as a process.
If you obtain the patent, you will continue to pay its fees, to keep it current. The max live of a utility patent is 20 years.
At some point in time, during that period you may turn the patent over to a foundation that allows it to be used by anybody (and they may continue paying fees to maintain it).
This will not protect you from somebody implementing your ideas, but will protect you from being virtually racketeered.
If you decide to work on a patent, consider a patent agent, rather than a patent lawyer.
Patent agents are cheaper (although I do not know by how much), they can represent you in-front of PTO boards, but not in court. Patent lawyers can do both.
If you patent eventually goes to litigation, you can get a patent lawyer at that time (although they will tell you that they are best to write patent too, to make it ready for any possible court defense).
Most patents never go to litigation, and many expire even before 20 years, because the patent assignee failed to pay maintenance fees.
[deleted]
Would it be possible to have a non-profit organization that exists only for patenting obvious things and "open sources" all of these patents?
how is this applied to projects like ffmpeg? Does it exist simply because no one sues, or is there legal merit to writing your own decoders?