9 ms·

The W3C asks for help finding Prior Art to two Apple Patents.

134 points by dc2k08 15y ago

bergie 15y ago
Be careful with this, according to the Debian patent FAQ prepared by Software Freedom Law Center (http://www.debian.org/reports/patent-faq http://www.debian.org/reports/patent-faq) you can get tainted by reading patents: Unfortunately, U.S. patent law creates disincentives for searching through patents, even though one of the main justifications given for the patent system is that the patent teaches the public how to practice an invention that might otherwise be secret. Willful infringement subjects the infringer to enhanced damages when they are aware of the patent and intend to infringe, and reading patents increases the probability that subsequent infringement will be found to be willful. Moreover, we find that developers often assume that the patents they discover are broader in scope than they actually are, and thus such developers become overly or needlessly worried. If, despite this, you do intend to conduct a patent search, you should seek legal advice first. That said, I'm happy to live and work in Europe where we don't need to deal with this crap.
- ig1 15y ago
  Yes, you should avoid reading patents that relate to areas that you actively work in.
- law 15y ago
  Unfortunately, you still need to deal with this crap, thanks to the Patent Cooperation Treaty, and more broadly the Paris Convention. While it goes without saying that neither of these treaties means that a U.S. patent is enforceable in Europe, a party with deep enough pockets can file an international application in all the Paris countries, entitling them to the protections afforded by those countries. While the PCT does not mention anything about patentable subject matter in international applications, you still need to be familiar with your jurisdiction's patentability requirements. Thankfully, Art. 52 of the European Patent Convention is pretty sensible in that it does not regard discoveries, scientific theories and mathematical methods, aesthetic creations, and "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" as patentable subject matter.[1] [1] http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/ar52.html http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/...
  - iqster 15y ago
    Wait ... I want to verify if I read this correctly ... Europe does not have software patents?
    - bergie 15y ago
      Correct. The way it is limited may of course depend on the local law. For example in Finnish patent law only "real things" can be patented, not products of human intelligence, which limits stuff like algorithms, software, business models etc. outside the scope of patentability. There have been several instances, however, where large American companies have tried to get Europe to allow software patents. Luckily so far all of these have been blocked: http://eupat.ffii.org/log/intro/ http://eupat.ffii.org/log/intro/
      - pbhjpbhj 15y ago
        >There have been several instances, however, where large American companies have tried to get Europe to allow software patents. Luckily so far all of these have been blocked: Nonsense. We have software patents in Europe too.
        ig1 15y ago
        It's somewhat complex, but in general most of the contentious US software patents wouldn't be valid in the EU, which is why Europe has only seen a handful of software patent cases over the last decade. See http://en.wikipedia.org/wiki/Software_patents_under_the_European_Patent_Convention http://en.wikipedia.org/wiki/Software_patents_under_the_Euro...
    - law 15y ago
      I was referring to business method patents, not software patents. Art. 52 paragraph 3 clarifies what's in paragraph 2: (3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject‑matter or activities as such (emphasis added) This is where I imagine much of the confusion lies. My interpretation combined with a brief search on google seems to indicate that software could make its way into patentable subject matter if it's a subset of a larger system, but not if its the sole "invention" claimed in the patent. In other words, if you have a hardware device running embedded software, you could patent the device, including in it "programs for computers." Thus, Art 52 doesn't mean that all inventions including computer software are, as a matter of law, not patentable.
xefer 15y ago
I wish these quests for prior art didn't always happen after the damage was done. The Patent Office itself should crowd-source the software community looking for prior art before a patent is issued in the first place.
- bergie 15y ago
  Nope, the patent office should adopt a more sensible policy on what can or can not be patented. As another HNer pointed out in this thread, the European policy is pretty good: http://news.ycombinator.com/item?id=2807082 http://news.ycombinator.com/item?id=2807082
  - brlewis 15y ago
    How would this be for a policy? 1. Software for a general-purpose digital computer is equivalent to a mathematical algorithm, and therefore not statutory material for a patent. 2. If the all the novelty and non-obviousness in a claim is contained in software, then that claim is not patentable. 3. Software as an element of an otherwise patentable claim does not make the entire claim unpatentable. This is nothing more than the complement of 2. Don't read it in any way inconsistent with 2. 4. Don't read 3 in a way that's inconsistent with 1 and 2. Pay attention to 1, 2 and 3. They are the policy. Like my policy? I hope so, but they'll never listen to it. If they don't listen to the Supreme Court, they won't listen to anyone. 1 is Benson, 2 is Flook, 3 is Diehr, and 4 is Bilski.
    - nkassis 15y ago
      I'm not for software patent but I always found the "Software is a mathematical algorithm" thing annoying. I don't think it's a really good argument against software patents.
      - silentOpen 15y ago
        Computer programs are constructivist mathematical proofs. Why is this annoying? Why isn't this a good argument against software patents? Should I be able to patent a mathematical theorem and its proof?
ig1 15y ago
What we really need is a crowd-sourcing platform for prior art research Something where someone could submit a piece of prior art and for each of the claims in the patent describe how the prior art invalidates that claim. Plus some sort of discussion forum for people to discuss the prior art. A few companies did launch in this space about a decade back (offering bounties that would be paid by companies getting sued over the patents), but no-one seems to have really succeeded in gaining traction.
- law 15y ago
  I actually wanted to create something like this a few months ago, but the idea never got any momentum. Instead, I've been working on software that facilitates prior art search by semantically analyzing "literature," generally. I'm primarily focused on using genetic algorithms to construct a complex search query (compatible with LexisNexis/Westlaw) to find even more prior art (in the form of research articles and whatnot) -- not just patents. Luckily, every patent issued since 1976 already has a full-text version, and there are OCR'd versions of the patents from around 1910-1976 available on google. Unfortunately, academia is much larger than just the patent database, so it's important to broaden our searches further. I was hoping to use this program to build support for, and ultimately raise enough money to request, ex parte reexaminations of issued patents. Would any of you have interest if I kept pushing for that idea?
  - jcoder 15y ago
    Good way to get more comprehensive results, but how would the wexis queries be funded?
    - law 15y ago
      Good question. Right now, Westlaw charges something like $100 per search in ALLCASES, which is their database of all federal and state court opinions ever written. Just to retrieve a single document by citation is something like $10. The general trick is to try to craft a very broad 'initial' search that will encapsulate all of your results; you can create sub-searches within that set of retrieved documents (limited to at most around 3,000) at no additional cost.
melling 15y ago
On a small tangent, does someone maintain a graveyard of software patents as they become invalidated? Since there are lots of duplicate patents, this might be helpful when people need to defend against patent trolls.
mricardo 15y ago
Patents in Europe are much, very much, less restrictive than in USA: http://en.wikipedia.org/wiki/Software_patents_under_the_European_Patent_Convention http://en.wikipedia.org/wiki/Software_patents_under_the_Euro...
Equint 15y ago
I don't quite understand what's happening here. Could someone summarize it in layman's terms? As far as I can tell, Apple has patented something that has been produced before, and the website is requesting evidence of that to undo the patent?

134 points by dc2k08 15y ago

Be careful with this, according to the Debian patent FAQ prepared by Software Freedom Law Center (http://www.debian.org/reports/patent-faq http://www.debian.org/reports/patent-faq) you can get tainted by reading patents: Unfortunately, U.S. patent law creates disincentives for searching through patents, even though one of the main justifications given for the patent system is that the patent teaches the public how to practice an invention that might otherwise be secret. Willful infringement subjects the infringer to enhanced damages when they are aware of the patent and intend to infringe, and reading patents increases the probability that subsequent infringement will be found to be willful. Moreover, we find that developers often assume that the patents they discover are broader in scope than they actually are, and thus such developers become overly or needlessly worried. If, despite this, you do intend to conduct a patent search, you should seek legal advice first. That said, I'm happy to live and work in Europe where we don't need to deal with this crap.

ig1 15y ago
Yes, you should avoid reading patents that relate to areas that you actively work in.
law 15y ago
Unfortunately, you still need to deal with this crap, thanks to the Patent Cooperation Treaty, and more broadly the Paris Convention. While it goes without saying that neither of these treaties means that a U.S. patent is enforceable in Europe, a party with deep enough pockets can file an international application in all the Paris countries, entitling them to the protections afforded by those countries. While the PCT does not mention anything about patentable subject matter in international applications, you still need to be familiar with your jurisdiction's patentability requirements. Thankfully, Art. 52 of the European Patent Convention is pretty sensible in that it does not regard discoveries, scientific theories and mathematical methods, aesthetic creations, and "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" as patentable subject matter.[1] [1] http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/ar52.html http://www.epo.org/law-practice/legal-texts/html/epc/2010/e/...
- iqster 15y ago
  Wait ... I want to verify if I read this correctly ... Europe does not have software patents?
  - bergie 15y ago
    Correct. The way it is limited may of course depend on the local law. For example in Finnish patent law only "real things" can be patented, not products of human intelligence, which limits stuff like algorithms, software, business models etc. outside the scope of patentability. There have been several instances, however, where large American companies have tried to get Europe to allow software patents. Luckily so far all of these have been blocked: http://eupat.ffii.org/log/intro/ http://eupat.ffii.org/log/intro/
    - pbhjpbhj 15y ago
      >There have been several instances, however, where large American companies have tried to get Europe to allow software patents. Luckily so far all of these have been blocked: Nonsense. We have software patents in Europe too.
      - ig1 15y ago
        It's somewhat complex, but in general most of the contentious US software patents wouldn't be valid in the EU, which is why Europe has only seen a handful of software patent cases over the last decade. See http://en.wikipedia.org/wiki/Software_patents_under_the_European_Patent_Convention http://en.wikipedia.org/wiki/Software_patents_under_the_Euro...
  - law 15y ago
    I was referring to business method patents, not software patents. Art. 52 paragraph 3 clarifies what's in paragraph 2: (3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject‑matter or activities as such (emphasis added) This is where I imagine much of the confusion lies. My interpretation combined with a brief search on google seems to indicate that software could make its way into patentable subject matter if it's a subset of a larger system, but not if its the sole "invention" claimed in the patent. In other words, if you have a hardware device running embedded software, you could patent the device, including in it "programs for computers." Thus, Art 52 doesn't mean that all inventions including computer software are, as a matter of law, not patentable.

xefer 15y ago

I wish these quests for prior art didn't always happen after the damage was done. The Patent Office itself should crowd-source the software community looking for prior art before a patent is issued in the first place.

bergie 15y ago
Nope, the patent office should adopt a more sensible policy on what can or can not be patented. As another HNer pointed out in this thread, the European policy is pretty good: http://news.ycombinator.com/item?id=2807082 http://news.ycombinator.com/item?id=2807082
- brlewis 15y ago
  How would this be for a policy? 1. Software for a general-purpose digital computer is equivalent to a mathematical algorithm, and therefore not statutory material for a patent. 2. If the all the novelty and non-obviousness in a claim is contained in software, then that claim is not patentable. 3. Software as an element of an otherwise patentable claim does not make the entire claim unpatentable. This is nothing more than the complement of 2. Don't read it in any way inconsistent with 2. 4. Don't read 3 in a way that's inconsistent with 1 and 2. Pay attention to 1, 2 and 3. They are the policy. Like my policy? I hope so, but they'll never listen to it. If they don't listen to the Supreme Court, they won't listen to anyone. 1 is Benson, 2 is Flook, 3 is Diehr, and 4 is Bilski.
  - nkassis 15y ago
    I'm not for software patent but I always found the "Software is a mathematical algorithm" thing annoying. I don't think it's a really good argument against software patents.
    - silentOpen 15y ago
      Computer programs are constructivist mathematical proofs. Why is this annoying? Why isn't this a good argument against software patents? Should I be able to patent a mathematical theorem and its proof?

ig1 15y ago

What we really need is a crowd-sourcing platform for prior art research Something where someone could submit a piece of prior art and for each of the claims in the patent describe how the prior art invalidates that claim. Plus some sort of discussion forum for people to discuss the prior art. A few companies did launch in this space about a decade back (offering bounties that would be paid by companies getting sued over the patents), but no-one seems to have really succeeded in gaining traction.

law 15y ago
I actually wanted to create something like this a few months ago, but the idea never got any momentum. Instead, I've been working on software that facilitates prior art search by semantically analyzing "literature," generally. I'm primarily focused on using genetic algorithms to construct a complex search query (compatible with LexisNexis/Westlaw) to find even more prior art (in the form of research articles and whatnot) -- not just patents. Luckily, every patent issued since 1976 already has a full-text version, and there are OCR'd versions of the patents from around 1910-1976 available on google. Unfortunately, academia is much larger than just the patent database, so it's important to broaden our searches further. I was hoping to use this program to build support for, and ultimately raise enough money to request, ex parte reexaminations of issued patents. Would any of you have interest if I kept pushing for that idea?
- jcoder 15y ago
  Good way to get more comprehensive results, but how would the wexis queries be funded?
  - law 15y ago
    Good question. Right now, Westlaw charges something like $100 per search in ALLCASES, which is their database of all federal and state court opinions ever written. Just to retrieve a single document by citation is something like $10. The general trick is to try to craft a very broad 'initial' search that will encapsulate all of your results; you can create sub-searches within that set of retrieved documents (limited to at most around 3,000) at no additional cost.

melling 15y ago

On a small tangent, does someone maintain a graveyard of software patents as they become invalidated? Since there are lots of duplicate patents, this might be helpful when people need to defend against patent trolls.

mricardo 15y ago

Patents in Europe are much, very much, less restrictive than in USA: http://en.wikipedia.org/wiki/Software_patents_under_the_European_Patent_Convention http://en.wikipedia.org/wiki/Software_patents_under_the_Euro...

Equint 15y ago

I don't quite understand what's happening here. Could someone summarize it in layman's terms? As far as I can tell, Apple has patented something that has been produced before, and the website is requesting evidence of that to undo the patent?