Software patents are an evil thing which should die a horrible and painful death. Until that moment, recording prior art in a way that is understood by the system is an effective way to fight patents. By recording prior art in the form of defensive publications, we can make it much harder for a patent to be granted — and it does not have to be hard at all to do so.
Yesterday at FISL, I attended a panel on software patents in Brazil, the discussion revolved around the why and why nots. Unsurprisingly, there are a lot of good reasons why not, and very little pro. It’s an interesting topic, especially since I lately dived a bit deeper into this topic. Softwaree parents were also high on the agenda of this year’s Akademy, which happened last month in Tallinn, Estland. They are legal threats to Free software, so we need to figure out how to deal with them. Let’s first rehash why software patents are a bad thing:
- Patents are valid for a ridiculously long time. This unrealistic timeframe makes them effectively stifle progress
- For a casual developer, it’s impossible to know if she or he is infringing on any existing patents
- Software patents are used in entirely wrong ways: Often patent claims are brought in after a product has shipped successfully, so in order to protect prior investment into research, they’re used as weapons of economic warfare.
So, software patents are bad, really, really bad. Unfortunately they are just as well a reality we will have to deal with for the foreseeable future. Make no mistake, software patents should not exist, they are evil and they should die sooner rather than later. Until then, however, the threat is real and needs mitigation.
The process of creating a software patent is, very roughly: You come up with a new idea, you write it down in a formal way, you register it with a patent office, the patent is reviewed and rejected or granted. One part of this review process is research for prior art. In order to grant a patent, it has to be an original idea, and it must not already exist.
The “must not already exist” is also known as prior art. Prior art must of course be known, so it has to be visible in the public space. Prior art that is useful in the War on Patents is right under the nose of the reviewers at the USPTO (U.S. Patent and Trademark Office), for example. In order to prevent patents from being registered, having as many technologies, ideas and concepts as possible registered as prior art is an effective way to fight the system with its own weapons.
The Open Invention Network sent us three smart people to Akademy, which was really useful. Apart from being cool folks, the OIN’ers also presented us a relatively easy way to record prior art as “Defensive Publication” and feed it into the system so it will be found, considered, and lead to rejection of similar patent applications. The nice thing here is creating a defensive publication is a lot less work than applying for a patent, it is in fact very well doable for an individual developer. A typical defensive publication fits on one page, has a few paragraphs of text with a generally applicable explanation of the idea and preferably a diagram or graphic that makes it easier to understand it. The key here is that it should be easy to understand for an alien to the specific technology (but technically savvy person nevertheless) to understand and find back in the case a related patent application ends up on the table.
There’s a few pleasant catches to this whole thing:
- The process is lightweight, with a bit of exercise, writing a defensive publication about a good idea can be done in half an hour
- The idea you’re recording doesn’t even have to be your idea: You can help a fellow developer by recording his work in this form. As you don’t derive any kind of license or copyright to the actual work by writing the defensive publication, the work can be spread.
- The idea does not need to have been already implemented. Just being able to prove “somebody has already come up with that!” is enough, so even (consistent) brainfarts are eligible
By now, you might already get why I’m writing this: In order to effectively fight the war on patents, we need more people to write these defensive publications. As it’s quite easy to do and we have people who help us in this, I’d like to encourage you all to record prior art we’ve created.
Update: I’ve uploaded an example defensive publication of prior art about Plasma’s Activities, find it here.