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09.09.11

Prior Art-based and Abolishment-based Methods of Stopping Software Patents

Posted in America, Patents at 2:04 pm by Dr. Roy Schestowitz

United around common goals

Hands in union

Summary: Another look at two complementary approaches that help defend Free software, one being deterrence based on the latter being reform-driven

THE patents landscape is being filled up with all sorts of extortion rackets that operate rather quietly. We previously mentioned several of these, including RPX which according to LWN the OIN keeps and eye on. To quote a very detailed article which is finally accessible to non-subscribers:

There are several defensive patent pools that have spent “billions to acquire patents”. These include RPX, which has 100 members, and AlliedSecurityTrust (AST), which has 22 members, as well as OIN itself. OIN is a “very peculiar company” in that has six members but is “tasked with protecting the community”. OIN and its members know that the community is “where new innovation is coming from”, Bergelt said, and those innovations can be used to build billion dollar companies.

[...]

There is work to be done on mobilizing the open source software community to help fight these patents, he said. There is a “tremendous amount of prior art” that has not been identified, so OIN and others have been working on “structures” where developers can document their ideas in ways that can be used by the patent office. One of those is the “defensive publication”, which is like a “patent without claims”. OIN has spent “tens of thousands of dollars” to try to educate developers on how to defensively publish their ideas. In addition, there are opportunities for the community to identify existing prior art that can limit the claims or possibly invalidate patents that are in the examination process.

We generally choose appeasement with the OIN, despite some disagreements. United we stand stronger and we also have been engaging in correspondence with Groklaw. Tens of thousands of dollars could also be spent trying to eliminate software patents altogether, so the above approach leaves us somewhat sceptical. This is the goal of Techrights and several other sites of its kind, including Groklaw which has this new article on why software is reducible to mathematics. Quoting the introduction:

This article is a follow up on my previous article 1+1 (pat. pending)—Mathematics, Software and Free Speech. My original intent was to write a shorter and simpler explanation of the software is mathematics argument which would be accessible to laymen. This proved to be a too ambitious goal. This is about mathematics, software, computers and patents. This topic is inherently technical. I settled on the next best thing. I tried to assume as little knowledge of mathematics, computers and software as possible and still explain things properly. There are professions like journalists in the trade press and lawyers practicing in software related fields of the law whose members know more about computing than the ordinary folks but don’t have the programming skills of Linus Torvalds. These people are the target audience.

The argument is based on the explanation of how software, hardware and data combine to implement functionality. When we have a complete picture of how functionality happens we can see clearly the parts played by the mathematical concepts of computation and algorithm. Once we have this knowledge it becomes clear in which sense and why software is mathematics.

The editor of Groklaw advocates two paths towards elimination of software patents, the latter of which is more conformist and to a certain extent aligns with the OIN’s work. Perhaps a little bit of both would be best, at least for the time being as software patents exist in the US.

By the way, do not pay too much attention to this new parody of a patent ‘reform’ which has just been passed:

The Senate gave final approval to the first major overhaul of the nation’s patent law in more than a half century Thursday, sending the America Invents Act to President Barack Obama for his signature

America Invents Act… like Patriot Act, it’s just a buzzword. We should all still demand a patent reform… a real patent reform.

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