Lessons from the Gnome Patent Troll Incident
blog.hansenpartnership.com
blog.hansenpartnership.com
...In the GNOME case, the sued project, shotwell, predated the filing of the patent by several years, so it should be obvious that even if shotwell did infringe the patent, it would have been prior art which should have prevented the issuing of the patent in the first place.
Unfortunately such an obvious problem canโt be used to get the case tossed on summary judgement because it impugns the validity of the patent. "
Facepalm.
There must be more to the story.
p.s. software engineers could form a non-profit that is funded to push back on bogus software patents, to address the cost barrier, since most small players and independents in the software space will benefit from it. Here GNOME could have asked this hypothetical org to cover the legal cost and kill that patent once and for all.
> One of the problems for the target is that once the patent is issued by the USPTO, the court must presume it is valid, so any defence that impugns the validity of the patent canโt be decided at summary judgment. In the GNOME case, the sued project, shotwell, predated the filing of the patent by several years, so it should be obvious that even if shotwell did infringe the patent, it would have been prior art which should have prevented the issuing of the patent in the first place. Unfortunately such an obvious problem canโt be used to get the case tossed on summary judgement because it impugns the validity of the patent.
This just isn't right.
Summary judgment is possible whenever there's no genuine dispute about material facts after discovery. If the facts show prior art, the judge can absolutely grant summary judgment.
See e.g. https://casetext.com/case/old-reliable-wholesale-4 for a case invalidating a patent on summary judgment.
Why? Because it shouldnโt be someone elseโs burden (time, cost) to have to clean up the mess they created (not to mention the waste in public money with court proceedings).
But, as usual, government employees/agencies have โsovereign immunityโ, which means they can get away with doing a bad job any other type of private employee would get fired for, without repercussions.
It's not too clear what you mean by this. Patent examiners can get fired, right? Or are they elected/appointed for life in your country's system?
Yes, they can get 'fired' - I was simply meaning that they can screw up a patent application so badly (letting it be accepted when it should not) without repercussions, where that type of screwup would get non-government employees fired (probably for lesser screwups, too).
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A public disclosure, for example, that there was no practical way for an examiner to be aware of, could invalidate a patent. Unless omniscience is part of the job requirements you're going to be sorely disappointed.
Examiners don't make applications, applicants do. Very expensive lawyers do their best to get those patent applications granted. Sometimes the lawyers/applicant know that the final product is invalid but seek it anyway .. so someone harmed can seek restitution from the courts.
The PTO try to stop mess, they don't screw up applications, they tear down applications; they unfortunately can't practically be 100% effective in that.
I'm sure they could do better, buy you appear to require them to be perfect?
Again, these comments are my own. I work in IP, but not in USA and not with USPTO.
Well they don't "tear down" enough of them to prevent the useless patent trolling that other companies and the taxpayers are burdened with to clean up.
Surely missing shot well is "inattention" at best?
Most of them can't be sued for their "honest mistakes".
Examiners at the USPTO, and other offices, are there as a filter to the courts. They just stop the courts being overwhelmed with useless, anticipated, nonsense.
There are something like 300M patent documents available in databases, and patents are anticipated by any public disclosure. So you're asking that patent examiners check against every extant publication in the World, on penalty of losing their job?
The examiner is like a programmer-tester, they'll catch a lot of errors, but if you scrap test/review programmers everytime a piece of software with a bug gets to a customer your costs of production will be higher than anyone would pay and your output will be near zero.
You need a pragmatic approach that balances an efficient USPTO with an active and effective court system.
These views are entirely my own and do not relate to my employer.
* Never publish open source or anything else under your real name, if you can avoid it.
* There is no legal security in the US and personally, I find it too risky to do business there.
Oh this is great and kind of funny.
The Rothschild settlement included a NDA, but somehow it didn't extend to others it covered, but those people were entitled to get a copy.
I wonder if Rothschild realized this?
I know Copyrights != Patents, but the whole idea of intellectual property should be abandoned. It is born out of rent seeking and any benefits it may have were never justified by the costs of the patent system[2].
If you think the patent system needs to be fixed, rather than abolished, please reconsider.
[1]: https://questioncopyright.org/
[2]: https://www.amazon.com/Against-Intellectual-Monopoly-Michele...
They can still troll non-OSI-licensed projects with those patents and can still troll open source projects with new invalid patents.
We could stop issuing invalid patents (I'm not holding my breath), develop a legal defense fund to do this again (thus maybe scaring off future trolls) as the article suggests, or change the law.
If we change the law we could do something minimal like the article suggests (eg: allow proof the code being sued over predates the patent to be presented at the summary judgment stage) OR (my favorite) something bigger like eliminating software patents entirely.
The EPC ("European" patents) allows software patents with a 'technical effect'.
That's not what this analysis says.
To quote the linked article: The ultimate agreement reached, as you can read, does just that: gives a perpetual covenant not to sue any project under an OSI approved open source licence for any patent naming Leigh Rothschild as the inventor (i.e. the settlement terms go far beyond the initial patent claim and effectively free all of open source from any future litigation by Rothschild).
So it protects against any future patents from this "inventor" too.
This is akin to "we could stop making software with bugs" in a situation where some programmers are actively seeking programmes with bugs. In theory, maybe, in practice you need to lower your standards below perfect.
If so, I wonder why more Open Source projects don't get based on European grounds and get immunity to the absurd state of things in the states.
And patent lawyers are trying hard to establish a "unified patent court" so software patents can snowball completely out of control:
https://en.wikipedia.org/wiki/Software_patents_under_the_Eur...
So, basically, you can't patent a program per se, but you can patent a "device" that uses the program. It is limited in scope
This seems quite reasonable, but I have no idea how that could be achieved. Opensource needs some kind political representation.
1. The U.S. patent statute, 35 U.S.C. ยง 102 [0], says that "[a] person shall be entitled to a patent unless ...." (Emphasis added.) This puts the burden on the patent examiner to prove un-patentability and not the other way around.
By comparison: Imagine a Ph.D. program in which the candidate was entitled to a degree upon submission of a dissertation, with no need to do a literature review, unless the candidate's committee could come up with anticipatory research. That's how it is in the patent system: A patent applicant need only disclose "material" information of which the applicant is aware; there's no obligation to do a prior-art search.
2. Usually, a single patent examiner (possibly supervised during his- or her first few years) does the search and decides whether to allow a patent. The USPTO does have pre-issuance review procedures, but in the main, one, junior, civil servant โ who might or might not know much about the relevant industry, as opposed to the relevant technology โ ๐๐ฃ ๐๐๐๐๐๐ฉ ๐ข๐๐ ๐๐จ ๐๐ฃ๐๐ช๐จ๐ฉ๐ง๐๐๐ก ๐ฅ๐ค๐ก๐๐๐ฎ ๐๐ค๐ง ๐ฉ๐๐ ๐๐ฃ๐ฉ๐๐ง๐ ๐๐ฃ๐๐ฉ๐๐ ๐๐ฉ๐๐ฉ๐๐จ.
Sure, there are procedures for the USPTO to revisit the question of patentability. But those are expensive for challengers, as has been pointed out in TFA and in the comments here.
3. Patent law also requires that, if you want to invalidate a patent in court, it's up to you to prove the relevant facts โ by "clear and convincing evidence," the highest standard of proof in civil law.
Bottom line: The incentives provided by the patent system are not necessarily needed in the 21st century. It's high time to revisit, as the Supreme Court put it in 1966, "the underlying policy of the patent system that 'the things which are worth to the public the embarrassment of an exclusive patent,' as Jefferson put it, must outweigh the restrictive effect of the limited patent monopoly."
[0] https://www.law.cornell.edu/uscode/text/35/102
[1] *Graham v. John Deere Co., 383 U.S. 1, 10-11 (1966), https://scholar.google.com/scholar_case?case=910565259149730...
(I did it in bold italic using YayText -- https://yaytext.com/ )
The United States Patent and Trademark Office (USPTO) is funded by feesโand the agency gets more fees if it approves an application.
Unlimited opportunities to refile rejected applications means sometimes granting a patent is the only way to get rid of a persistent applicant.
Patent examiners are given less time to review patent applications as they gain seniority, leading to less thorough reviews.
[1] https://arstechnica.com/tech-policy/2017/12/these-experts-fi...
Is that valid in US law?
For the the places I am aware of, it's not possible to give up rights to defend in court when one has been wronged. Otherwise that would allow a party to subdue others and ignore the law entirely.
For example, judges do not look favourably upon Holy Crusades. They tend to regard them as wasting the judges time. Which is an automatic strike against you.
It is generally best to take the first victory that presents itself, and win the war by increments.
Even if one is entirely in favor of the patent system as it is, the expiry time should be shortened in order to match the original idea.
How many (software) industrial year correspond to 20 years in the nineteenth century? Say, 5? This would drastically improve the patent problem considerably, without having to change the substance of patents legislation.
Another option for you: increase renewal fees proportional to revenue (or simply exponentially). The patent deal is a balance between private and public interests, weigh towards public interests with a bigger share of the proceeds.
Patents are filed for and valid from 20 years from filing, on grant, with no renewal.
Copyright is automatic and extends for author's life + 70 years, or for anonymous or works-for-hire, the shorter of 120 years from creation or 90 years from publication.
Copyright prior to 1976 was for a term of 28 years, extensible once, both requiring registration.
In many of those cases it makes way more sense economically, especially considering time-value of private parties involved, to just stop trying to charge entirely and have the revenue come from elsewhere.
I feel it is blatantly obvious in modern society patents (and copyrights, IP in general) operate this way. That the bureaucracy required to put them on a "reasonable" timetable of government granted monopoly whereby society can broadly benefit from the innovation isn't worth the legal, public, and private overhead in maintaining a system that is obviously defunct and outdated.
Thats part of what lead me to IP abolitionism, anyway. In practice very few "small" creators file patents, those that do rarely have the means to enforce them (or copyrights), and those that have the means don't have the time because they are too busy creating.
Yes, once something you made is out there without IP anyone else can take it, build on it, or just simply repackage it and reuse it. So get your money out of it before its out there, kind of like how anything else you sell works.