A prevailing notion among open source developers is that “patents are bad for open source”, which means they can be safely ignored by everyone without consequence. Unfortunately, there is no way to opt-out of patents. Even if an entire community has agreed to share ideas and not patent them, there is nothing in practice that stops a troll from outside the community cherry-picking ideas and attempting to patent them. It turns out that patent examiners spend about 12 hours on average to review a patent, which is only enough time to search the existing patent database for prior art. That’s right — they don’t check github, academic journals, or even do a simple Google search for key words.
Once a patent has been granted, even with extensive evidence of prior art, it is an expensive process to challenge it. The asymmetry of the cost to file a patent — around $300 — versus the cost to challenge an improperly granted patent — around $15,000-$20,000 — creates an opportunity for trolls to patent-spam innovative open source ideas, and even if only a fraction of the patent-spam is granted, it’s still profitable to shake down communities for multiple individual settlements that are each somewhat less than the cost to challenge the patent.
Even though in practice open source developers are “in the right” that the publication and sharing of ideas creates prior art, in practice the fact that the community routinely shuns patents means our increasingly valuable ideas are only becoming more vulnerable to trolling. Many efforts have been launched to create prior art archives, but unfortunately, examiners are not required to search them, so in practice these archives offer little to no protection against patent spamming.
The co-founder of Chibitronics, Jie Qi, was a victim of not one but two instances of patent-spam on her circuit sticker invention. In one case, a crowdfunding backer patented her idea, and in another, a large company (Google) attempted to patent her idea after encountering it in a job interview. In response to this, Jie spent a couple years studying patent law and working with law clinics to understand her rights. She’s started a website, Patent Pandas, to share her findings and create a resource for other small-time and open source innovators who are in similar dilemmas.
As Jie’s experience demonstrates, you can’t opt-out of patents. Simply being open is unfortunately not good enough to prevent trolls from patent-spamming your inventions, and copyright licenses like BSD are well, copyright licenses, so they aren’t much help when it comes to patents: copyrights protect the expression of ideas, not the ideas themselves. Only patents can protect functional concepts.
Learn more about patents, your rights, and what you can do about them in a friendly, approachable manner by visiting Patent Pandas!
What I have always wondered is why dishonest patenting activities are not regarded as fraud. In effect, when the patent applicant is deliberately misrepresenting their position on a public document that, when filed, will yield them a government-sanctioned monopoly, the consequences should be of the same nature as those for people who deliberately conceal assets or income on tax filings or who knowingly make false statements to a court.
But instead, people seem almost incentivised to “try it on” with no negative consequences if their scheme is defeated. They probably even get to write the patent fees off against tax if that happens.
I am personally against patents on principle: they are monopolies, as I noted, and they evidently preserve and inflate a lucrative bubble of limited knowledge, outside which the actual sharing increasingly seems to occur. But patent clerks would certainly have more time to actually find prior art if fewer patents were submitted, and fewer patents would be submitted if those doing so were under threat of serious legal repercussions.
Naturally, that wouldn’t help to inflate the bubble of selling rights and titles in the name of “innovation”. So government-sanctioned banditry is here to stay, sad to say.
[…] Read more, Patent Panda video, site, and post on bunnie’s site with a good overview. […]
Patents are a creeping problem in other fields also. Fortunately, there are collaborative countermeasures, see e.g.: http://opensourcebees.org/?page_id=27&lang=en
“The Open Source License aims to maintain honey bees as a common good in the hands of the beekeeping community. It protects the traditional breeding activities with an open-source licence. This is the most efficient way to legally protect our bees from patenting and privatization.”
Hi Andrew, my name is Jessica. I am a researcher working on an upcoming TV series about mathematics. I was wondering if I it’s possible for me connect with you. i can share with you more details about the series over email. I can be contacted at jesnovialee@gmail.com
Looking forward to hearing from you!
Patent examiners don’t check github or Google search when checking for prior art? In today’s environment, and with the mere existence of the open source community whose efforts are by definition published openly, this omission seems extremely negligent – likely legally so. I can understand prior art published in Billy Bob’s defunct 1995 blog being overlooked, but just wow, they don’t even search online? I’m speechless.
I wonder if the issue has to do with paper publication vs digital? What if open source projects self published a book, individually or en-masse, containing at least a summary of each project and links to the online content and author?
Regardless, if we accept the above as status quo and unchangeable, is there any process someone creating open prior art to formally notify the Patent Office? Surely they keep a database or library internally?
The shortest summary I can think of to your question is, “there is a database of prior art and it’s called the patent database”. I know that sounds self-circular, and it is, but that’s how the PTO thinks of it as far as I can tell. They would argue the fee for a “micro-entity” to file a utility patent is only $75, so to merely get an entry in the patent database (e.g. you don’t care if the patent is granted, in fact it’s fine if it’s denied so long as it’s part of the record) is technically affordable to almost anyone.
Of course the problem is, a bad patent application could be so narrow that it merely serves as a mandrel against which a less magnanimous entity can shape a broader patent and thus secure blocking IP. In fact, this has been pointed out as a problem with aggregating prior art from laymen — a troll could mine it as a database of useful ideas that are narrowly construed, and figure out ways to patent over them. So of course in practice it’s not the filing fees that make prior art databases tricky. It’s the $1,000/hour lawyer rates to review the filing that makes solid prior art filings expensive and difficult to secure.
Defensive publication makes most sense for small entities and private inventors with no significant financial resources who need to assure ‘freedom to operate’ in a field infested by trolls, e.g. telecoms, microelectronics, device physics. Just file a utility model application (a ‘petty patent’) in Ireland or Australia if English is your first language. The formalities cost around 500 euros, can be submitted online and there is no examination. Self-drafting these is not difficult but can be time-consuming the first few times as it involves hard thought and the distillation of the core inventive principles out of the mass of detail.
BTW I noted your comments about IP in your contributions to Wired UK’s 2016 piece on Shenzhen – The Silicon Valley of Hardware here: https://www.youtube.com/watch?v=SGJ5cZnoodY
I have plenty to reflect on.
Best from Ireland
Hi Andrew, my name is Jessica. I’m a writer working on an upcoming TV series called Coded World. It is a 4x 60 minuted episode that will be aired on Channel News Asia.
“Coded World” is in essence an inquiry into the obscure mathematical structures that shape our daily lives. Our mathematician turned host travels across the globe to explore and understand how algorithms and equations are the building blocks of modern existence. Through four abstract themes of Security, Choice, Money and Future – we dive deep into the world of mathematics to understand how everything – from personalized music selection to our banking system is controlled by baffling equations.
We are looking for a host and I came across a Wired documentary that featured you. We feel that you might be a great fit to host our show. So I’m wondering if you’re interested too, we can discuss more? My email in jesnovialee@gmail.com. Alternatively, you can also reach me at +65 94791911.
Looking forward to hearing from you!
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