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enedil is correct. To expand on that: MIT and Apache2 grant a licence to copyrightable expression. But the literal code is not what is patented, the idea is. G
by ajb 8y ago
enedil is correct.
To expand on that: MIT and Apache2 grant a licence to copyrightable expression. But the literal code is not what is patented, the idea is. Granting a license to the code doesn't automatically prevent someone else from patenting the idea.
MIT doesn't say anything about patents. Apache2 additionally grants a licence to any patents which the author has which cover the work, and also tries to prevent someone using the work and then suing other people for patent infringement. But it does so by saying
" any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed." Which is a null threat in this case, as the idea is to try to prevent there being a patent in the first place.
You could argue that the author should have patented the idea, and then freely licensed it. But since patents cost thousands each, that's a bit much to ask.
- evrydayhustling 8y ago> the author should have patented the idea, then freely licensed it This is the brutal truth of how crappy our current patent mechanisms are. The definition of what constitutes a patentable extension to practice of ideas that are well known or explicitly in the public domain is very weak. So, until something is patented and actively protected by bulldog lawyers, there is a risk of someone else trying to umbrella it in their own patent. Google's move can even be justified on defensive grounds that some other jerks could do the same. But the core problem is an arms race to the bottom of what trivial distinctions can be claimed.
- chimeracoder 8y ago> This is the brutal truth of how crappy our current patent mechanisms are. Being granted a patent by the USPTO doesn't guarantee that the patent is actually valid. It's technically possible for them to grant identical patents to two separate people by mistake, and then the courts have to determine which one is valid.
- hedora 8y agoHaving a patent doesn’t guarantee someone else will not patent the work as part of some other patent. Patent examiners miss things sometimes. Publicly disclosing the idea in a way that can be verified after the fact establishes prior art just like filing a patent does. I’m not a lawyer, but I do know there are services that inexpensively publish inventions and vouch for the publication date after the fact. Also note that the vast majority of patent litigation never makes it to trial, so whether a patent is “valid” or not is a gray area in practice.
- evrydayhustling 8y agoThe problem is defending that disclosure as prior art when someone bigger claims a patent that improves or puts it into practice, which is exactly what this article is about. Even if you take a few steps to make patenting harder, if you invent something valuable it's eventually a game of chicken about preventing others from claiming the space.
- bingoboingo33 8y agoThe only solution to put an end to the current patent system is to overload it. The equivalent of a DDos attack. Companies should file as many frivolous patent as they possibly can. Eventually, we'll have all the IP lawyers at 100% CPU and the world will be a much better place.
- evrydayhustling 8y ago100% CPU -> 100% billable hours -> IP law is now an incredibly attractive profession -> more capacity for patents / lawsuits... and that's essentially how we got here.
- wereHamster 8y agoThen we all stop at the same time, the market collapses and IP lawyers go extinct.
- Covzire 8y agoYou'll have better luck herding cats.
- freedomben 8y agoExactly. They'll scale up horizontally by adding more and more instances until supply == demand, at which case we'll be really, really sad we followed this road.
- wtetzner 8y ago> Granting a license to the code doesn't automatically prevent someone else from patenting the idea. But doesn't the fact that the code has already been released mean it's prior art?
- laumars 8y agoCorrect me if I'm wrong, but I think the US patent office doesn't check for prior art (that was one of the cut backs several years ago) so instead prior art is now something that has to be challenged in court.
- DennisP 8y agoOr challenged before the patent is issued. The USPTO encourages this; fees for notifying them of prior art are much lower before issuance.
- mbrumlow 8y agoWait a fee is imposed? I get why I think but if your posting of prior art proves to be true then you should have your fee refunded.
- DennisP 8y agoI'd have to check but if I remember right, before issuance there's no fee for less than 20 items of prior art, and just a flat $200 fee for more. After issuance I think the fee is $35,000.
- throwaway2048 8y agoso you have to pay them $35,000 to show a patent they issued is bullshit. Outrageous.
- monochromatic 8y agoThat is completely wrong.
- mcbits 8y agoThat sounds backwards if I'm reading you right. An idea can't be patented (well... in theory), but a new invention based on an idea can. Google apparently thinks they've got a new, non-obvious invention based on Duda's public domain work, which may itself have been patentable but wasn't. That's one reason why companies rich enough to spam the patent office tend to do so. Company A invents X. If they don't patent it, then Company B can invent X+1, a minor improvement on X, and patent X+1 themselves. Now Invention X can't compete with X+1, so Company A invents X+2, an improvement on X+1, but now they have to pay license fees to Company B even though they invented the original thing! Solution: just try to patent every stupid thing.
- philipov 8y agoAnd that is why patents should be abolished, in a nutshell.
- giancarlostoro 8y agoSoftware patents for sure. Not sure about algorithmn ones. Say you invent this exact compression algorithmn and want to patent it but you can't and Google steals it when you wanted to license it so you can fund a company that builds better compression algorithmns or whatever. Google is going to rip out of your profits.
- tacon 8y agoNo, the way to protect yourself is to disclose anything you don't want to patent, but don't want patented against yourself. IBM had a great system for several decades[0]: [0] https://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bulletin https://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bulle...
- DennisP 8y agoJust publishing prior art, in a way that proves when you did it, is sufficient. It can still be a problem if you're not aware your idea is being patented, so the patent office doesn't find your prior art, but that's not an issue here. There are also services where you can register your prior art, which say the USPTO uses them when evaluating claims; I don't know how useful they are in practice.
- fma 8y agoWe (USA) and are a first to patent country now. https://techcrunch.com/2013/02/16/first-to-file-a-primer/ https://techcrunch.com/2013/02/16/first-to-file-a-primer/
- DennisP 8y agoYes but that just means if two inventors are working on something privately, the first to file gets priority, instead of the first to invent. Public prior art still invalidates the patent.
- Nomentatus 8y agoNo, recent court decisions say public isn't enough - the invention has to have become fairly well known to practitioners of the art. Mere publication is nothing now.
- DennisP 8y agoCan you reference that? Recently I both consulted an attorney on this stuff, and did my own research, and that's the exactly opposite of what I've found.
- pfarnsworth 8y agoYou can't patent ideas only specific implementation of ideas.
- maire 8y agoSo - prior art is no longer good enough? I was at Xerox when they were fighting a patent on their ideas. At that point in time all you had to do was prove prior art on the idea. Xerox used their notes during software development plus the code to prove prior art. Similarly I was at Apple when they fought a basic patent on color matching. Apple succeeded in fighting the patent then proactively started patenting everything.
- ajb 8y agoI certainly hope prior art is still good enough. The GP was asking whether the licence under which you publish your prior art should make a difference - I don't think it does.
- radley 8y ago> The America Invents Act signed on September 16, 2011, switched U.S. right to the patent from the previous "first-to-invent" system to a "first-inventor-to-file" system for patent applications filed on or after March 16, 2013. https://en.wikipedia.org/wiki/First_to_file_and_first_to_invent https://en.wikipedia.org/wiki/First_to_file_and_first_to_inv... Thought it could be challenged as unconstitutional: > Many legal scholars have commented that such a change would require a constitutional amendment. Article I, Section 8, Clause 8 of the US Constitution gives Congress the power to “promote the Progress of ... useful Arts, by securing for limited Times to ... Inventors the exclusive Right to their respective ... Discoveries.” These scholars argue that this clause specifically prohibits a first-inventor-to-file system because the term "inventor" refers to a person who has created something that has not existed before. (Wikipedia)