EFF promising intensified fight against bogus software patents | Hacker News Reader

EFF promising intensified fight against bogus software patents

networkworld.com

22 pointsbuzzblog5 comments

FTA: "Every piece of software released to the world without legal protections may leave open a door for someone else to attempt to patent the same technology (and may leave its creators more open to legal threats without a patent to wield defensively)."

Wait, what? No, every piece of software released to the world, with or without patent protection becomes prior art. It slams the door shut on future attempts on anyone's part to patent the same technology. Even more so when the software is released as FOSS.

On the face of it, this campaign is already sounding oddly misguided. The only way to win this game is not to play, and I'd expect EFF of all orgs to understand that.

Prior art doesn't prohibit someone from patenting the idea ... I rather suspect not too many patent examiners peek inside source code or the interfaces of indie apps to check for prior art, and if a behemoth company is going to patent someone's prior art, it's not as if they're going to submit evidence that disproves their claim.

In short, even if it is prior art, it might still be patented, and some poor shmoe down the road is going to have to research, find, and successfully enter as evidence the prior art. They might just choose to settle instead.

Not playing can still suck.

The source code has nothing to do with the content of a patent. It can be part of a patent, but it isn't necessary. The courts don't care how you implemented someone else's "idea," only that you did.

No, every piece of software released to the world, with or without patent protection becomes prior art. It slams the door shut on future attempts on anyone's part to patent the same technology.

The US Patent Office doesn't reject software patents based on prior art. The PTO is constantly issuing new patents on long established technologies.

Officially prior art and obviousness are supposed to disqualify a patent but the PTO doesn't care. Otherwise there would be no (or almsot no) software patents issued. Instead there are tens of thousands each year.

Proving that a patent was incorrectly issued costs about $5 million to go to court and depends less on technical invalidity than on how good your lawyer looks in a $5000 suit. No wonder it's usually better to settle if you can.

The impression I got from the article was that these patents obtained on existing software would leave the original creators at risk of litigation without as much to defend themselves.

IANAL, but I do believe you're correct about prior art. I think the risk is that in the messy world of "12 people who couldn't get our of jury duty in an east texas jurisdiction", you want as much legal weaponry as you can possibly muster, and relying on prior art without a patent of your own could leave you at grave risk.

I really do hate this game, I'll give you that. But I worry that refusing to play could lead to a blowout loss. Reform is so badly needed.

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