pages tagged patentshroy.euhttps://hroy.eu/tags/patents/hroy.euikiwiki2023-10-30T21:04:34ZPatent Factshttps://hroy.eu/posts/patentFacts/2023-10-30T20:08:22Z2014-12-11T15:51:27Z
<p>Some facts and statistics about <span class="selflink">patents</span>
(with a focus on software and information technology). I will update
this post from time to time, so <a
href="https://hroy.eu/tags/patentFacts/index.atom">subscribe to the feed</a> to get
notified! Please suggest other noteworthy facts in the comments.</p>
<ul>
<li><p>the number of patent lawsuits filed each year in the US has
tripled.</p>
<p>source: <a
href="http://www.nytimes.com/2012/10/08/technology/patent-wars-among-tech-giants-can-stifle-competition.html?_r=2&pagewanted=all">New
York Times</a></p>
<p>years: 1990-2010</p></li>
<li><p>“Internet software patents” are litigated eight times as often as
other patents.</p>
<p>source: <a
href="http://stlr.stanford.edu/pdf/allison-patent-litigation.pdf">Allison,
Standford</a> [404] in 2012 Stan. Tech. L. Rev. 3 <a
href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1989144">SSRN</a></p>
<p>years: 1998-2009</p></li>
<li><p>In Germany, patents covering software and telecoms are
invalidated by courts in 88.11% of cases. <small>For all patents, the
main ground for invalidations by the German Federal Patent Court is lack
of patentability in 75% of the cases.</small></p>
<p>source: <a
href="http://www.bardehle.com/uploads/files/Patent_Papiertiger.pdf">Bardehle</a>
[pdf]</p>
<p>years: 2010-2013</p></li>
<li><p>In the US, patents challenged on the basis of the US Supreme
Court <em>Alice v. CLS Bank</em> decision are invalidated by Federal
Circuit courts in 91.9% of cases <small>(66.5% for all courts)</small>.
(Also ses <a href="https://youtu.be/UR0QEQ3VqU0">Deb Nicholson’s
talk</a>)</p>
<p>source: <a
href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2798992">Japser
L. Tran, Univ. of Minnesota</a></p>
<p>years: 2013-2016</p></li>
<li><p>Apple and Google spend more on patent litigation and patent
purchases than on research and development.</p>
<p>source: <a
href="http://www.nytimes.com/2012/10/08/technology/patent-wars-among-tech-giants-can-stifle-competition.html?_r=2&pagewanted=all">New
York Times</a></p>
<p>year: 2011</p></li>
</ul>
<ul>
<li><p><span id="ibmAbandons">IBM</span> abandons around 40% of their US
patents in the first three years.</p>
<p>source: <a
href="http://patentlyo.com/patent/2012/03/ibms-patent-abandonment-strategy.html">patentlyo</a></p>
<p>year: 2012</p></li>
<li><p>IBM has been granted most US patents for [more than] 20 years in
a row</p>
<p>source: <a
href="http://www.bloomberg.com/news/2013-01-10/ibm-granted-most-u-s-patents-for-20th-straight-year.html">bloomberg</a></p>
<p>year: 2013</p></li>
<li><p>More than 1000 software patents are <em>granted</em> each year by
the EPO or EPC states.</p>
<p>source: <a
href="http://europa.eu/rapid/press-release_MEMO-02-32_en.htm?locale=en">European
Commission</a></p>
<p>years: 1978-2002</p></li>
<li><p>More than 20 000 patent <em>applications</em> on “digital
communications”, “IT methods” and “computer technology” are filed each
year at the EPO.</p>
<p>source: <a
href="http://www.epo.org/about-us/annual-reports-statistics/annual-report/2013/statistics-trends/patent-applications.html">European
Patent Office</a></p>
<p>year: 2013</p></li>
<li><p>88% of the patents held by “patent assertion entities” (a.k.a.
“patent trolls”) in the US are information and communication technology
patents, with more than 75% software-related.</p>
<p>source: <a
href="https://www.ftc.gov/news-events/press-releases/2016/10/ftc-report-sheds-new-light-how-patent-assertion-entities-operate">US
Federal Trade Commission (FTC)</a> <a
href="https://www.ftc.gov/system/files/documents/reports/patent-assertion-entity-activity-ftc-study/p131203_patent_assertion_entity_activity_an_ftc_study.pdf">pdf</a></p>
<p>years: 2009-2014</p></li>
</ul>
<p>The following assertions rely on surveys or do not have reliable
sources or data. If you have some idea of a better source for these
facts, please get in touch.</p>
<ul>
<li><p>52% of companies purchase patents to secure freedom to
operate</p>
<p>source: <a
href="http://www.iam-media.com/blog/Detail.aspx?g=fee0f344-6c2f-419b-a799-deac7d4c92be">IAM</a></p>
<p>year: 2015</p></li>
<li><p>Between 40% and 90% of all patents issued are never used or
licensed by their owners.</p>
<p>source: <a href="http://www.economist.com/node/21660559">The
Economist</a></p>
<p>year: ???</p></li>
</ul>
<h3 id="good-articles-and-other-sources-on-patent-facts">Good articles
and other sources on patent facts</h3>
<h4 id="journalism">Journalism</h4>
<ul>
<li><span class="csl-entry">Duhigg, Charles, and Steve Lohr. “In
Technology Wars, Using the Patent as a Sword.” <em>The New York
Times</em>, October 7, 2012, sec. Technology. <a
href="http://www.nytimes.com/2012/10/08/technology/patent-wars-among-tech-giants-can-stifle-competition.html."
class="uri">http://www.nytimes.com/2012/10/08/technology/patent-wars-among-tech-giants-can-stifle-competition.html.</a></span>
I summarised this article <a
href="http://blog.hugoroy.eu/2012/10/10/some-facts-about-the-us-patent-system/">on
my old blog</a></li>
</ul>
<h4 id="official-statistics">Official statistics</h4>
<ul>
<li>WIPO Statistics: <a href="http://www.wipo.int/ipstats/en/"
class="uri">http://www.wipo.int/ipstats/en/</a></li>
<li>EPO reports and statistics: <a
href="http://www.epo.org/about-us/annual-reports-statistics.html"
class="uri">http://www.epo.org/about-us/annual-reports-statistics.html</a></li>
<li>USPTO statistics: <a
href="http://www.uspto.gov/about/stats/index.jsp"
class="uri">http://www.uspto.gov/about/stats/index.jsp</a></li>
</ul>
<h2 id="not-patent-facts"><em>Not</em> patent facts</h2>
<p>Unfortunately, a lot of debates on patents do not rely on facts,
especially debates on patents applied to information technology.
Instead, we are witnessing what Mark Lemley has described as <a
href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2587297">“Faith-Based
Intellectual Property”</a>. Here’s a list of things which are
<strong>not facts about patents</strong> but which are often
asserted.</p>
<ul>
<li><p>“companies invest heavily in software research and development in
the United States <em>because</em> new inventions, implemented through
software, can be protected by patents”. Yet, the article that makes this
assertion offers <strong>absolutely no evidence</strong> that the
eligibility of software as patent subject matter has specifically
contributed significantly to US growth in software research and
development.</p>
<p>(I would also note that the conclusion in the executive summary is
legally incorrect: the promotion of progress in the useful arts is not a
“constitutional imperative”; under the US constitution, Congress “shall
<em>have the power to</em>“ promote the progress in the useful arts, but
this is not <em>an imperative</em>.)</p>
<p>source: David J. Kappos (former USPTO president) and Aaron Cooper, <a
href="http://www.iam-media.com/files/software%20white%20paper%20-%20aug%2026%202015%20final.pdf">At
the core of America’ s competitive edge: why software - implemented
inventions are — and must remain — patent eligible [pdf]</a>, Aug 26,
2015</p></li>
</ul>
https://hroy.eu/work/oin/submit-priorart-howto/EPO/2014-10-09T13:37:10Z2014-10-09T13:14:43Z
<p>The European Patent Convention allows any person to submit prior art at
the European Patent Office. There are two procedures:
<a href="http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar115.html">one</a>
before the patent is granted (the “observations” procedure), the
<a href="http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/apv.html">other</a>
within 9 months after the patent is granted (the “opposition”
procedure).</p>
<p>The official languages of the European Patent Office are English, French
and German. You should provide translations to one of these languages
for documents in other languages.</p>
<h1>0. Which prior art references can you submit?</h1>
<p>Two conditions are absolutely necessary for a document to constitute
prior art:</p>
<ul>
<li><p>the document must have been made available to the public</p></li>
<li><p>the publication date is paramount in order for prior art to be
relevant for challenging patent validity, so any document where the
publication date is uncertain is going to have less value.[^1]</p></li>
</ul>
<p>In order to constitute prior art and establish that the patent
application claims something that is <strong>not new</strong>, the publication date
must precede the patent application filing date and its priority date.</p>
<h1>1. The EPO observation procedure</h1>
<p>The observation procedure starts after the publication of the European
patent application (according to article
<a href="http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar93.html">93</a>)
and ends when such application is granted. The EPO
<a href="http://www.epo.org/law-practice/legal-texts/html/guidelines/e/e_v_3.htm">guidelines</a>
specify that:</p>
<blockquote>
<p>Although lack of novelty and/or inventive step are the most common
observations, third-party observations may also be directed to clarity
(Art. 84), sufficiency of disclosure (Art. 83), patentability (Art.
52(2) and (3), 53 or 57) and unallowable amendments (Art. 76(1),
123(2)).</p>
</blockquote>
<p>Third-party observations can be <a href="http://www.epo.org/searching/free/observations.html">submitted online directly to the
EPO</a>.</p>
<h1>2. The EPO opposition procedure</h1>
<p>The opposition procedure is much more complex. A third-party filing a
notice of opposition will become a party to the procedure.</p>
<p>Any person may oppose a patent <strong>within 9 months of the publication of
the mention of the grant</strong> in the European Patent
<a href="http://www.epo.org/searching/free/bulletin.html">Bulletin</a>. The
formalities of the opposition notice are set forth in rule
<a href="http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/r76.html">76</a>.</p>
<blockquote>
<p>(a) particulars of the opponent as provided in <a href="http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/r41.html">Rule
41</a>,
paragraph 2(c);</p>
<p>(b) the number of the European patent against which opposition is
filed, the name of the proprietor of the patent and the title of
the invention;</p>
<p>(c) a statement of the extent to which the European patent is opposed
and of the grounds on which the opposition is based, as well as an
indication of the facts and evidence presented in support of these
grounds; […]</p>
</blockquote>
<hr />
<p>The procedure is not admitted until the fees are paid:</p>
<blockquote>
<p>[…] Each party to the opposition proceedings shall bear the costs it
has incurred, unless the Opposition Division, for reasons of equity,
orders, in accordance with the Implementing Regulations, a different
apportionment of costs. […] (article
<a href="http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ar104.html">104</a>).</p>
</blockquote>
<p>These rules are set forth in rule
<a href="http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/r88.html">88</a>.</p>
<blockquote>
<p>(1) The apportionment of costs shall be dealt with in the decision on
the opposition. Such apportionment shall only take into
consideration the expenses necessary to assure proper protection
of the rights involved. The costs shall include the remuneration
of the representatives of the parties.</p>
<p>(2) The Opposition Division shall, on request, fix the amount of costs
to be paid under a final decision apportioning them. A bill of
costs, with supporting evidence, shall be attached to the request.
Costs may be fixed once their credibility is established.</p>
</blockquote>
<hr />
<p>Oppositions may be <a href="http://www.epo.org/applying/european/oppositions.html">submitted
online</a>.</p>
<h1>Find relevant patent and patent applications</h1>
<p>You can <a href="https://register.epo.org/regviewer">search through the EPO’s patent
database</a>. You can also search
through the
<a href="http://worldwide.espacenet.com/classification">classification</a> to find
relevant classes.</p>
<p>[^1]: Where the actual publication date of a document is not known, you
will have to provide evidence to establish when the document was
publicly available.</p>
https://hroy.eu/work/oin/submit-priorart-howto/USPTO/2014-10-09T13:14:43Z2014-10-09T09:24:51Z
<p><aside class="toc">
Contents</p>
<p></aside></p>
<p>With the passing of the <a href="https://en.wikipedia.org/wiki/Leahy-Smith_America_Invents_Act">America Invents
Act</a>, the
US patent office now accepts prior art submissions from anyone. This
guide will help you get through the procedure to submit prior art
effectively and contribute to getting patent applications rejected.</p>
<p><aside class="sidenote note right"> <!--Trying to be very, very concise at the expense of legal details--></p>
<h4>What is prior art?</h4>
<p>Prior art is information available to the public before a patent
application’s filing date. If a patent application claims something that
already existed or something which was already obvious, then such patent
application is invalid.
</aside></p>
<h1>The USPTO procedure to submit prior art before the issuance of a patent</h1>
<p>There are several ways in which prior art can be used to invalidate a
patent or a patent application. Since 2012, <strong>anyone[^1] can submit
prior art</strong> before a patent gets granted, <strong>during the application
phase.</strong></p>
<p>The prior art references must be submitted to the US patent office in a
procedure called <a href="http://www.uspto.gov/patents/init_events/preissuance_submissions.jsp">third-party preissuance
submissions</a>
(“code name:” 3PPI). This procedure is subject to <a href="http://www.law.cornell.edu/uscode/text/35/122">§122
(e)</a> of title 35 of the
US Code.</p>
<h2>When to submit prior art to the US patent office?</h2>
<p>The submission has to be sent in time during the application phase:</p>
<ul>
<li><p><em>no more than 6 months</em> after the patent application was published,</p>
<p>or</p></li>
<li><p>as long as <em>no part of the application has been rejected</em> by the
patent examiner (section
<a href="http://www.law.cornell.edu/uscode/text/35/132">132</a> notice)</p>
<p>whichever comes last.</p></li>
</ul>
<h3>Example</h3>
<ul>
<li>2013: Inventor X files for a patent</li>
<li>May 2014: the US patent office publishes the patent application
(under section <a href="http://www.law.cornell.edu/uscode/text/35/122">122</a>
(b))</li>
</ul>
<p>We have three possible scenarios:</p>
<ol>
<li><p>The patent examiner issues a §151 <em>notice of allowance</em> before
November 2014</p>
<p>Then, it is <strong>too late</strong> to submit prior art after that notice.
Prior art submissions under the third-party preissuance procedure
must be made on patent applications, not granted patents.</p></li>
<li><p>The patent examiner issues a §132 <em>notice of rejection</em> before
November 2014</p>
<p>You can <strong>still submit prior art</strong> references until November 2014,
which is during a 6-month timeframe starting from the publication of
the patent application (in our example, May 2014 → November 2014).</p></li>
<li><p>The patent examiner issues a §132 notice of rejection <em>after
November 2014</em></p>
<p>You can <strong>still submit prior art</strong> references after November 2014,
until the patent examiner issues such <a href="http://www.law.cornell.edu/uscode/text/35/132">a §132
notice</a>.</p></li>
</ol>
<p>For more information, you can refer to the USPTO’s answers on <a href="http://www.uspto.gov/aia_implementation/faqs-preissuance-submissions.jsp#heading-5">Timing of
a Preissuance
Submission</a>.</p>
<h2>Which prior art references can you submit?</h2>
<p>Two conditions are absolutely necessary for a document to constitute
prior art:</p>
<ul>
<li><p>the document must have been made available to the public</p></li>
<li><p>the publication date is paramount in order for prior art to be
relevant for challenging patent validity, so any document where the
publication date is uncertain is going to have less value.[^2]</p></li>
</ul>
<!--
The publication date matters in different ways, depending on which section of
patent validity is applied:
c1a267d75a1918009718f700314e0191
So, **any document that was available to the public before the filing date of
the patent application can constitute prior art.**
-->
<p>In order to constitute prior art and establish that the patent
application claims something that is <strong>not new</strong>, the publication date
must precede the patent application filing date and its priority date.</p>
<!--# What makes a good prior art reference?
You can only submit **up to 3 prior art references** for each patent
application. So it’s important to select your best prior art references.
[FIXME: I lack strategic insight here, from my understanding of what Raffi wanted, the most useful prior art references are those which make the patent fail the novelty threshold. But what if prior art is inadmissible for novelty but would still be very good for the non-obvious test? which are the chances that would work, how much should we encourage this?]
[QUESTION: Raffi: maybe you could give a few pieces of advice on what you think makes good prior art for 3PPI]
[TODO: explain in more details date for novelty]
543288d0caf2548e7dffd880d810e23b
[TODO: explain claimcharts here?]-->
<h1>HOWTO submit your selected prior art references</h1>
<h2>Find relevant patent applications in the USPTO database</h2>
<p>The US patent office classifies patent and applications in classes and
subclasses. Linux Defenders maintain <a href="https://hroy.eu/tags/patents/usptoclasses">a list of classes relevant to
software</a> taken from the <a href="http://www.uspto.gov/web/patents/classification/selectnumwithtitle.htm">USPTO
classification</a>.</p>
<p>To <a href="http://appft1.uspto.gov/netahtml/PTO/search-adv.html">search through the database of patent
applications</a> and
monitor classes of interest, you need to <a href="http://appft1.uspto.gov/netahtml/PTO/help/helpadv.html">learn their query
format</a>.</p>
<p>For instance, to search all applications related to Artificial
Intelligence (class <strong>706</strong>), query <code>CCL/<strong>706</strong>/$</code>.</p>
<p>You can also limit the query to certain timeframes. For instance, to
search from <strong>January 2014</strong> to <strong>September</strong> 2014, add to your query
<code>AND PD/<strong>1</strong>/$/<strong>2014</strong>-><strong>9</strong>/$/2014</code> (The <code>$</code> works as a
catch-all).</p>
<p><aside class="sidenote note right"></p>
<p>The USPTO maintains a <a href="http://www.uspto.gov/aia_implementation/faqs-preissuance-submissions.jsp">FAQ related to preissuance
submissions</a>.</p>
<ul>
<li><a href="http://www.uspto.gov/aia_implementation/faqs-preissuance-submissions.jsp#heading-1">General</a></li>
<li><a href="http://www.uspto.gov/aia_implementation/faqs-preissuance-submissions.jsp#heading-2">Filing a Preissuance
Submission</a></li>
<li><a href="http://www.uspto.gov/aia_implementation/faqs-preissuance-submissions.jsp#heading-3">Content of a Preissuance
Submission</a></li>
<li><a href="http://www.uspto.gov/aia_implementation/faqs-preissuance-submissions.jsp#heading-4">Concise Description of
Relevance</a></li>
<li><a href="http://www.uspto.gov/aia_implementation/faqs-preissuance-submissions.jsp#heading-5">Timing of a Preissuance
Submission</a></li>
<li><a href="http://www.uspto.gov/aia_implementation/faqs-preissuance-submissions.jsp#heading-6">Fees</a></li>
<li><a href="http://www.uspto.gov/aia_implementation/faqs-preissuance-submissions.jsp#heading-7">Processing of Preissuance
Submissions</a></li>
</ul>
<p></aside></p>
<h2>Submit prior art</h2>
<p>The procedure of third party preissuance submissions is identified as
“37 CFR 1.290” within the USPTO. You can <strong>submit up to three prior art
references</strong> without <a href="http://www.uspto.gov/about/offices/cfo/finance/fees.jsp">paying
fees</a> and
statement “37 CFR 1.290(g)” is selected in the submission interface. You
can <a href="https://efs.uspto.gov/efile/portal/efs-unregistered">submit without
registration</a>.
<a href="https://efs.uspto.gov/efile/myportal/efs-registered">Registered filers</a>
can save a submission draft for 7 days (the application requires Java).</p>
<p>When you select that you submit prior art for an existing application
and that the procedure is “37 CFR 1.290” you need to identify the patent
application with the application number. You will also need a
confirmation number, which can be found on the USPTO <a href="http://portal.uspto.gov/external/portal/pair">PAIR
system</a>. You will need
this number when making your prior art submission and to track your
submission.</p>
<p>You have to select what kind of prior art reference you submit:</p>
<ul>
<li>a US patent</li>
<li>a US patent application</li>
<li>a foreign patent or patent application</li>
<li>non-patent documents</li>
</ul>
<p>However, it should be noted that almost all examiners rely on patent and
patent applications references when they reject claims so <strong>patent
references should be preferred over others</strong>.</p>
<h3>Formalities</h3>
<p><ul>
<li><p>For all of these documents, several details will be needed, like the
name of the inventor for a patent, the date of publication, the
title, etc.</p></li>
<li><p>For documents other than US patents, you will need to provide a
copy.</p></li>
<li><p>For documents not in English, you will need to attach a translation.</p></li>
<li><p>For each prior art reference, you need to provide the information to
identify portions of the document and to expose how they are
relevant to the patent.</p></p>
<p>However, <em>stick to the facts</em> and the content of the prior art
documents itself and <strong>don’t propose legal arguments related to the
patent’s validity</strong>, it is the exclusive competence of the examiner.</p>
<p>The USPTO suggests to format this information as a “claimchart”
emphasising elements of the claims on the left and a concise
description or quotation of relevance of the publication on the
right:</p>
<p><p><table class="table">
<colgroup>
<col width="15%" />
<col width="84%" />
</colgroup>
<thead>
<tr class="tableheader">
<th align="left">
Claim 1
</th>
<th align="left">
Publication X
</th>
</tr>
</thead>
<tbody>
<tr class="odd">
<td align="left"><p>
Element A
</p></td>
<td align="left"><p>
As discussed on page 1, publication X discloses a machine that
performs the same function as the machine recited in claim 1. The
machine set forth in publication X includes many of the same parts
discussed in the specification of this application. For example, in
the first embodiment depicted in Figure 2 and discussed on page 5,
the machine of publication X expressly includes element A of claim</p></p>
<ol>
<li>See lines 7-14 on page 5 of publication X.
</p></td>
</tr>
<tr class="even">
<td align="left"><p>
Element B
</p></td>
<td align="left"><p>
The first embodiment also includes element B of claim 1. See lines
1-3 on page 6 of publication X.
</p></td>
</tr>
</tbody>
</table></li>
</ol>
<p></li>
</ul>
<!--</p>
<h4>Evidence for lack of an actual publication date {#nopubdate}</h4>
<p>The publication date is paramount to make prior art admissible. However,
sometimes a prior art reference does not contain a publication date itself. In
such cases, it is necessary to submit evidence that the document was publicly
accessible before the filing date of the patent application. Such evidence may
be in the form of affidavits or declarations.</p>
<blockquote>
<p>Manual of Patent Examining Procedure (MPEP) § <a href="http://www.uspto.gov/web/offices/pac/mpep/s715.html">715</a>.04(II). II. Formal
requirements of affidavits and declarations</p>
<p>An affidavit is a statement in writing made under oath before a notary
public, magistrate, or officer authorized to administer oaths. See MPEP §
602et seq. for additional information regarding formal requirements of
affidavits.</p>
<p>37 CFR 1.68 permits a declaration to be used instead of an affidavit. The
declaration must include an acknowledgment by the declarant that willful
false statements and the like are punishable by fine or imprisonment, or both
(18 U.S.C. 1001) and may jeopardize the validity of the application or any
patent issuing thereon. The declarant must set forth in the body of the
declaration that all statements made of the declarant’s own knowledge are
true and that all statements made on information and belief are believed to
be true. </p>
</blockquote>
<p>According to [the USPTO][FAQ]:
Affidavits and declarations submitted as evidence of publication must be limited to facts establishing why a submitted document qualifies as a publication and must not to be used as a mechanism to place information that is not pertinent to establishing the document as a publication before the examiner. Further, affidavits and declarations submitted as evidence of publication should explain how the affiant/declarant has personal knowledge of the facts described therein and must be specific to the document(s) submitted for consideration.
--></p>
<p>[^1]: From the USPTO: A third-party can submit prior art, but not an
individual who has a duty to disclose information with respect to
the application (i.e., each individual associated with the filing
and prosecution of the patent application) under 37 CFR 1.56. The
party making the submission must also state that the submission
complies with the requirements of 35 U.S.C. 122(e) and 37 CFR 1.290.</p>
<p>[^2]: Where the actual publication date of a document is not known, you
will have to provide evidence to establish when the document was
publicly available. <!--See <a href="#nopubdate">below</a>.--></p>
How to produce defensive publicationshttps://hroy.eu/posts/defpub-workflow-rfc/2023-10-30T19:54:26Z2014-09-05T07:33:37Z
A proposal and request for comments on how to make it easy for free software projects to produce defensive publications against patents.<hr><br><p>Last month, I <a href="https://hroy.eu/posts/intro-defpubs/">introduced what
defensive publications are</a>: documents describing something (a new
feature, a new algorithm, a new system) in order to prevent further
patents.</p>
<p>Defensive publications are needed because on the one hand, even when
the source code is available to the public, it is not necessarily
accessible to the patent office examiner who’s reviewing patent
applications. This is why we submit defensive publications to their
databases: it makes the review process more aware of what free software
projects develop.</p>
<p>On the other hand, while pushing code to a public repository is easy
for a project contributor, writing and submitting a defensive
publication is not as straightforward.</p>
<p>On of my goals is to help fix this, so that producing defensive
publications gets as easy as possible for Free Software projects. So,
during this month, amongst other patent-related activities, I published
a first version the <a
href="https://github.com/LinuxDefenders/defpub-template/">a defensive
publication template</a> on <a
href="https://github.com/LinuxDefenders/">Github</a>. Hopefully, I will
be able to improve on this version and push other useful things for the
whole <a href="http://linuxdefenders.org/">Linux Defenders</a>
programme. Your feedback would be very appreciated!</p>
<p>A prior observation before explaining how the template works:
obviously, writing defensive publications is not a developer’s top
priority. But writing a defensive publication is not something that can
be left entirely to lawyers (although we can help). Writing a defensive
publication requires insights on:</p>
<ul>
<li>how the code works, how the system is designed</li>
<li>how other solutions, especially prior solutions and current trends
develop</li>
</ul>
<p>For this reason, developers are in a privileged position to write
defensive publications. The situation is not entirely unlike that of
writing documentation. Writing documentation is probably not a
developer’s favourite task (and indeed the state of some documentation
is evidence of this). However, we know that a good documentation is also
a sign of a project’s health and so we make process and tools to
facilitate this task. Fortunately, writing a defensive publication is
not much different from writing documentation, and so we should be able
to <em>kill two birds with one stone</em>.</p>
<h3 id="how-does-it-work">How does it work?</h3>
<p>Once you have identified some part of your software that you want to
write a defensive publication about:</p>
<ol type="1">
<li><p><a
href="https://github.com/LinuxDefenders/defpub-template/archive/master.zip">Download
and extract the template</a></p>
<p>The <code>README</code> should guide you. Especially, you can find
examples of things to use to start your own publication, such as
figures, flowcharts, etc.</p></li>
<li><p>Update variables like:</p>
<pre><code>TITLE
PROJECT
URL
DESCRIPTION
TAGS</code></pre>
<p>(I’ll probably write a script to automate that…)</p></li>
<li><p>Create an <code>abstract.yaml</code> file in <code>src/</code>
(you can one from the <code>example/</code> directory) and also update
the <code>tags</code>. You can edit the abstract itself, later at the
end.</p>
<p>This will later appear on the list of <a
href="http://defensivepublications.org"
class="uri">http://defensivepublications.org</a>.</p></li>
<li><p>You can start writing your document in <code>src/</code> - You
can write in any format provided that you are able to produce a PDF at
the end so we can submit it to the patent office. Right now the template
is very much focused around <a
href="http://johnmacfarlane.net/pandoc/">pandoc</a> which is able to
convert a lot of different kinds of texts, like Markdown to LaTeX. You
can follow the <code>README</code>.</p></li>
</ol>
<p>As you see, it’s a bit rudimentary now, but the idea behind with this
template is that you should be able to take relevant bits of your
documentation and integrate them directly into your defensive
publication’s source files. Then you can use <code>pandoc</code> to
combine all the files together in the relevant order.</p>
<p>That way you don’t have to duplicate content, but rather you reuse
relevant parts of your documentation that describe your software for the
defensive publication.</p>
<p>Once you’ve done that, you need to write the abstract and probably
write an introduction if you need to give more details. Another part to
introduce your publication can be a description of the current state of
the art relevant to your software: basically, what’s the problem your
software solves and how other solutions try to address this problem in
your field.</p>
<p>The template comes with a file <a
href="https://github.com/LinuxDefenders/defpub-template/blob/master/example/template.pdf"><code>example/template.pdf</code></a>
that should guide you through the different parts that make a defensive
publication.</p>
<h3 id="get-involved-with-us">Get involved with us</h3>
<p>If you are interested in writing a defensive publication or have more
questions, don’t hesitate to join <a
href="http://irc.lc/freenode/linuxdefenders/">#linuxdefenders</a> on the
IRC freenode server.</p>
<p>Also, I’m very much interested in your feedback. What’s your opinion?
What do you need to write a defensive publication as easily as
possible?</p>
<hr />
<p>Next month, I should be able to show an example from
<a href="https://hroy.eu/tags/defensivePublications/">defensive publications</a>, with
additional explanation and comments!</p>
Intro to Open Invention Network’s defensive publicationshttps://hroy.eu/posts/intro-defpubs/2023-10-30T20:13:50Z2014-07-28T13:13:05Z
What I’ve been working on the last three weeks, my internship at Open Invention Network starts<hr><br><p>Three weeks ago, I started working for <em>Open Invention
Network</em> as an intern<a href="https://hroy.eu/tags/patents/#fn1" class="footnote-ref" id="fnref1"
role="doc-noteref"><sup>1</sup></a>. <a
href="https://www.openinventionnetwork.com/">Open Invention Network</a>,
or OIN in short, aims at creating a safe environment for Linux and
Linux-based systems to thrive in spite of all the threats that patents
constitute to software developers.</p>
<aside class="dyk-patents2009 sidenote right">
<strong>Did you know?</strong> In 2009-2011 in the US, $20 billion was
spent on patent litigation and patent purchases. In 2011, for Apple and
Google, this spending exceeded spending on research and development. <a
href="http://www.nytimes.com/2012/10/08/technology/patent-wars-among-tech-giants-can-stifle-competition.html?_r=2&pagewanted=all"
title="In the smartphone industry alone, according to a Stanford University analysis, as much as $20 billion was spent on patent litigation and patent purchases in the last two years — an amount equal to eight Mars rover missions. Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings.">(source)</a>
</aside>
<p>As one of my activities with <a
href="https://www.openinventionnetwork.com/">OIN</a> in the <a
href="http://www.linuxdefenders.org/">Linux Defenders</a> program, I am
helping Free Software (aka Open Source) projects submit “defensive
publications.”</p>
<p>Defensive publications are sort of anti-patents:</p>
<ul>
<li>while patents are claimed to <em>exclude others</em> from being able
to implement something,</li>
<li>defensive publications <em>prevent anyone to exclude others</em>
from being able to implement something.</li>
</ul>
<p>They’re called defensive because they can be used against further
patent applications or they can be used a posteriori to defend oneself
against patent infringement claims. Indeed, if the software is already
accessible by the public before a patent on it is submitted, there’s no
way you or anyone would be infringing on a patent on that software.
Actually in that situation the patent should be invalidated. Then you
might ask: why do I need to write defensive publications if I have
already published my source code? – Unfortunately, that’s because just
releasing source code is not effective to protect yourself against
patents.</p>
<p>In theory, it is true that you are immune from infringement of
subsequent patents as soon as you’ve made your software source code
publicly accessible online, for instance using a public version control
system like Github.</p>
<p>In practice, it’s not really effective. Here’s why:</p>
<ol type="1">
<li><p>the life of patents begin at the patent office where patent
applications are submitted, then reviewed by patent office staff:</p>
<blockquote>
<p>Patent examiners have a strong sense of the technology that is
patented, but <strong>they’re missing an understanding of what has been
and is currently being developed in the open source world</strong>. As
shocking as it may seem, the result is the examiner formulating an
inaccurate sense of what is innovative. As the final arbiter of a very
significant monopoly grant, they are often grossly uninformed in terms
of what lies beyond their narrowly scoped search. This is not wholly
their fault as they have limited resources and time. However, it is a
strong indication of a faulty system that is so entrenched in the
archaic methods under which patent offices have been operating.</p>
</blockquote>
<p>As <a
href="http://creative-destruction.me/2014/01/21/defensive-publications-shedding-light-on-innovation/">Andrea
pointed out</a>, patent office staff will usually not go to software
repositories and read source code in order to find prior art. That’s why
making it easy for them to read about what you’ve done in software is
necessary. That’s what defensive publications are supposed to
do.</p></li>
</ol>
<ol start="2" type="1">
<li><p>The life of patents end in several ways, whichever comes
first:</p>
<ol type="1">
<li>The patent was filed more than 20 years ago or the patent holders
have not paid their yearly patent-taxes, it’s now in the public
domain</li>
<li>an authoritative court decision has striked out the patent as
invalid (and there’s no appeal pending)</li>
<li>the patent office reverts their decision to grant the patent</li>
</ol>
<p>The problem is that in each of these cases, the process can be quite
long. Litigations can go on for several years, especially since a patent
holder will probably try to appeal a decision that invalidate its
patent.</p>
<p>As for the patent office procedures, they can take a decade. For
instance, it took more than 15 years to strike down a single very broad
Amazon patent application<a href="https://hroy.eu/tags/patents/#fn2" class="footnote-ref" id="fnref2"
role="doc-noteref"><sup>2</sup></a>.</p>
<p>Meanwhile, the patent will constitute a potential threat that will
effectively encumber the use and distribution of your software.</p></li>
</ol>
<p>Basically, <a href="http://www.defensivepublications.org/">defensive
publications</a> consist in documenting one aspect of software projects
that’s focused on solving a challenge and does it in a new, innovative
way. The document would give some context about the state of the art and
then describe in more details how the system works, usually by using
meaningful diagrams, flowcharts and other figures.</p>
<p><a href="https://www.flickr.com/photos/opensourceway/6554315093/">Not
like this one:</a></p>
<!--![Created by Libby Levi for opensource.com](https://farm8.staticflickr.com/7155/6554315093_d4a9119a17_o.png)-->
<table class="img">
<caption>
Created by Libby Levi for opensource.com
</caption>
<tr>
<td>
<img src="https://hroy.eu/posts/intro-defpubs/666x-typical-patent-software-fig.png" width="666" height="374" alt="Parody of a software patent figure" class="img" id="typical-patent-software-fig" />
</td>
</tr>
</table>
<p>And who’s going to read defensive publications? At <a
href="https://www.openinventionnetwork.com/">OIN</a>, we maintain a
website <a href="http://www.defensivepublications.org/">to list
defensive publications</a>. Then, we submit them to databases used for
prior-art examination by patent office examiners. So the target audience
for these defensive publications is the patent office that reviews
patent applications. A good defensive publication should use generic
terms that are understood even by someone who’s not programming in the
same language as the one used for the program.</p>
<p>Defensive publications may be no more than a re-arrangement of what’s
already written on the project’s blog, or in the documentation. They can
be useful to explain how your program works to other programmers. In
some aspect, they look like a (short!) scientific publication.</p>
<p>For software that works in areas heavily encumbered with patents like
media codecs, actively submitting defensive publications can safeguard
the project’s rights against patent holders. For instance, consider that
<a
href="http://www.washingtonpost.com/blogs/the-switch/wp/2014/07/15/patent-trolls-now-account-for-67-percent-of-all-new-patent-lawsuits/">patent
trolls now account for 67% of all new patent lawsuits</a> and as shown
in a 2012 study, <a
href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2146251"
title="Startups and Patent Trolls">startups are not immune to patent
threats</a>.</p>
<p>So part of my job is to work with Free Software projects to help them
submit defensive publications. I have been working with Pablo Joubert on
a defensive publication around search engines making use of <a
href="https://en.wikipedia.org/wiki/Distributed_hash_table">distributed
hash tables (DHT)</a>. Pablo was involved in the <a
href="http://seeks-project.info/">Seeks project</a> and has now started
a new project building upon <a
href="http://seeks-project.info/">seeks</a>. It was very interesting for
me to learn more about how <a
href="https://en.wikipedia.org/wiki/Distributed_hash_table">DHT</a> are
used in peer-to-peer networks and how we can make use of them for new
awesome applications like social search. Now, Pablo also has a document
that explains concisely what the project is and how it works. This could
be the preamble to the documentation 😉</p>
<p>I’ve also worked on a guide to defensive publications and I am
starting to think on how a tutorial might look like. I hope you will
find that useful. I’ll write more
<a href="https://hroy.eu/tags/OpenInventionNetwork/">about that next time</a>!</p>
<p>If you are interested, don’t hesitate to join <a
href="http://irc.lc/freenode/linuxdefenders/">#linuxdefenders</a> on the
IRC freenode server.</p>
<aside id="footnotes" class="footnotes footnotes-end-of-document"
role="doc-endnotes">
<hr />
<ol>
<li id="fn1"><p>Since I passed the bar exam in December last year, I now
have to fulfil two 6-month internships.<a href="https://hroy.eu/tags/patents/#fnref1"
class="footnote-back" role="doc-backlink">↩︎</a></p></li>
<li id="fn2"><p>It’s patent <a
href="https://register.epo.org/application?number=EP99105948">EP0927945</a>
The patent’s abstract begins like this: “A method and system for placing
an order to purchase an item via the Internet.” This patent was filed at
the European Patent Office in 1998.<a href="https://hroy.eu/tags/patents/#fnref2"
class="footnote-back" role="doc-backlink">↩︎</a></p></li>
</ol>
</aside>
Patent fees are not like property taxhttps://hroy.eu/posts/patent-fees-property-tax/2023-10-30T21:04:34Z2013-09-20T22:00:00Z
<h3 id="thinking-of-patents-as-property">Thinking of patents as
property?</h3>
<p>There’s a constant debate when it comes to patents and copyright
laws. Do they fit in a general category of property rights? Are they
like property at all?
<a class="toggle" href="https://hroy.eu/tags/patents/#posts-patent-fees-property-tax.rms-cr">[+]</a></p>
<div id="posts-patent-fees-property-tax.rms-cr" class="toggleable">
</div>
I can’t hide that my opinion has been influenced by the writings of
Richard Stallman, who’s been challenging the status quo for over two
decades. I’ve summarised in French some of <a
href="https://pinboard.in/u:hugoroy/t:richard_stallman/t:copyright/">his
publications on the subject</a>.
<a class="toggle" href="https://hroy.eu/tags/patents/#posts-patent-fees-property-tax.rms-cr">[hide]</a>
<div class="toggleableend">
</div>
<p>Current developments in patent law, especially in the US, have given
rise to concerns about the harm they might do to innovation which they
seek to guide incentives. This has been more than obvious in the case of
software and patent trolls.</p>
<p>Some people, instead of fixing what’s inherently wrong with patents,
are trying to find some minor fixes. Recently it has been <a
href="http://ssrn.com/abstract=2318521">proposed</a> to make the patent
fees vary depending on how much the patent is “practised” by the
holder.</p>
<p>I stumbled upon this article (which might be a good idea, although I
think it misses the larger picture) while reading <a
href="http://www.patentlyo.com/patent/2013/09/raising-maintenance-fees-for-non-practiced-inventions.html">patentlyo
this afternoon</a>:</p>
<blockquote>
<p>Post-grant patent maintenance fees offer an easy mechanism for
shifting patentee behavior. In the US, patent holders must pay a
maintenance fee three times during the life of an issued patent. I
<strong>think of the fee as akin to property tax.</strong> When a
real-property owner fails to pay the property taxes, the state
forecloses. In the patent system failure to pay the maintenance fees
similarly results in the property right be taken from the non-payer.</p>
</blockquote>
<p>I couldn’t resist to take this opportunity to give a small excerpt of
how little value I think this analogy to property bears with thinking
about patents.</p>
<p>Earlier this year, I attended a small seminar on “comparative
perspectives of patent laws” which introduced itself with some American
literature on general theories of property.
<a class="toggle" href="https://hroy.eu/tags/patents/#posts-patent-fees-property-tax.comp-persp">[+]</a></p>
<div id="posts-patent-fees-property-tax.comp-persp" class="toggleable">
</div>
Apart from the criticism that follows, I have to say it was a very
interesting seminar and comparative legal studies are often good ways to
self-questioning one’s views. The introduction also featured Barry
Field, “the Evolution of Property Rights” (1989) worth reading as a
whole for explaining patterns of emergence of property rights, but maybe
also for the historical account of UK patent hero James Watt.
<a class="toggle" href="https://hroy.eu/tags/patents/#posts-patent-fees-property-tax.comp-persp">[hide]</a>
<div class="toggleableend">
</div>
<p>We were given to read Harold Demsetz, “Toward a Theory of Property
Rights” (1967). This is not the only attempt at trying a general theory
of property law that encompass patents and copyright. But this one is
interesting for some of the analysis it brings regarding the interaction
of individuals, the law, and the State; which is at the centre of
patentlyo’s thinking of patent fees akin to property taxes.</p>
<p>In this theory, patent laws aim at modifying behaviour by
internalising externalities. Yes, this is an economic theory… Later in
the text, about the concept and role of property rights, the author
outlines two ways for enrolling people in the military. In the first
one, where people are free to join or not, the State tries to buy people
in with providing for education, salaries, etc. In the second one,
people are drafted by default, so they can only buy a way out of the
army. For the author, there’s a kind of dynamic from no-property to
property, once we have a system that creates benefit of internalising
that’s higher than the cost of excluding people of the benefit. (In the
second system, the State gets all the benefit).</p>
<h3 id="property-and-rights">Property and rights</h3>
<p>This thinking in terms of property theory is nonsense to me, just
like saying the patent fees are akin to property tax. What’s the
connection exactly? Is anything the State is creating a tax for to be
understood in terms of a property logic? Then, I’ll say that the patent
fees are like the tax on cigarettes. Just like taxing cigarettes try to
discourage people from smoking, the patent fees try to discourage the
patent holders from keeping on their patents too long instead of
unleashing the benefits of the invention to everyone.</p>
<p>That’s absurd, just as absurd as Demsetz’s theory of thinking as
military drafting in terms of property. Who’s owning what exactly? When
I was trying to answer that question while reading Demsetz, my
conclusion was that Demsetz thought of a property right in owning
oneself. But you don’t “own yourself” in the sense that most people give
meaning to the verb owning. You are free to do things, you are
responsible for your actions.</p>
<p>There’s some kind of confusion between having the freedom to do
something that impacts other people, and having a right of property on
something. It’s usually much more helpful to think in terms of rights
and freedoms in general and try to think what’s the subject/object of a
“right”.
<a class="toggle" href="https://hroy.eu/tags/patents/#posts-patent-fees-property-tax.kant-rechts">[+]</a></p>
<div id="posts-patent-fees-property-tax.kant-rechts" class="toggleable">
</div>
If you don’t know what I mean here, because this is just a blog post and
I’m not thinking it through, I’m trying to draw from the distinction
made by Kant between personal rights and “real rights” (I’m not even
sure this is how it’s translated in English).
<a class="toggle" href="https://hroy.eu/tags/patents/#posts-patent-fees-property-tax.kant-rechts">[hide]</a>
<div class="toggleableend">
</div>
<p>This is to me the original flaw that’s also inherent to thinking of
patent fees akin to property tax; not acknowledgeing the fundamental
difference between the objects of a right (a <em>patentable</em>
invention, a house) for which there are rights as such (a patent, a
property right).</p>
<p>The patent fees do not serve the same purpose as the property tax.
The first one is a reminder that patents are privileges granted by the
State in exchange for everyone else’s freedom to use the patented
invention; while the property tax is not designed to put an end to the
property right when it is too costly for society’s benefit.</p>
<p>Thinking of patent law in terms of property brings confusion.</p>