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Software patents

Started by Hodgman Jul 24, 2012 at 6:15 AM 16 replies 6k views

Original Post

Jul 24, 2012 at 6:15 AM

This issue has just bubbled up in my conciousness again with the Mojang lawsuit making news... Now that story warms my heart a bit, because Notch has the money to fight it, and from reading the patent, as long as the Minecraft DRM doesn't rely on mobile device fingerprints (which it doesn't), then they should be safe. So hopefully, this will be a case of a patent troll getting shut down...

However, at almost the same time, a library that I'm interested in, crunch, has received a patent threat from an ex-nVidia employee. Now, this guy was the first to register the idea of transcoding from one compressed image format directly into DXT, so he now apparently owns that idea (instead of say, decompressing a PNG to an image and then encoding it to DXT, crunch can compress images in such a way that when you decompress them, you get a DXT image, removing the need for runtime DXT compression).
My problem with this, is that it's a fucking obvious idea -- even just ZIPping up a DDS file is almost infringing on this patent.

Being able to claim that you 'own' an idea (especially one this obvious), and then go around issuing legal threats against researchers who also come up with the same idea... is just insane! Is this bizarro world? How is this acceptable behaviour? How do you rationalise this to yourself?

This makes research and innovation a damn mine-field. The "crunch patent" was filed a year before crunch appeared, so legally, crunch is screwed. Legally, this guy can hold their work ransom, just because he staked his claim over the idea first. It doesn't matter that he didn't implement the idea, nor does it matter that the crunch author had no way of knowing that this obvious idea had been claimed and was now unusable by the public. So, off he goes, innovating and researching on his own, only to have some troll jump out of the woodwork after he's finished, demanding to profit from someone else's work...
It's just disgusting.

It would be easy to just ignore this, let it be a problem for the people being screwed over by it... but it does affect me.
As a computer graphics enthusiast myself, everything I've built is built upon the shoulders of giants. We take ideas from the public domain, we rearrange them, we combine them, we improve upon them, and then our iterations becomes part of the public domain of the next generation to continue the process. When I come up with a novel idea, I like to share it. This doesn't harm me, because all the value of the idea lies in it's implementation (which, as a member of a capitalism, I keep for myself to profit from).

However, if I want to protect myself from patent trolls, the only way I can do this is to never share my ideas. If I don't explain how my technology works, then trolls can't look at my ideas and claim that they own them. "Crunch" is screwed because they made their code public, and explained that they transcode into DXT... But if I invented "crunch", didn't share my ideas, kept the implementation private, and secretly used it in my games, then I wouldn't be getting threatened by this guy -- he would have no way of knowing that I've "infringed" his patent.

So... seeing that anything that I build has the potential to be "claimed" by a patent troll at any time, my best option is to stop sharing my ideas and techniques, and instead invest all my time into obfuscation and anti-circumvention technology, to prevent patent-trolls from peeking into my creations.
But if everyone does this, then public research dries up, the ability for newcomers to the field to learn dries up, innovation dries up, communication and communities dry up... which is just as bad.

So what do we do? Stop sharing ideas to make ourselves harder targets for patent trolls, but kill research as a side effect? Or keep supporting open research, but open ourselves up to lawsuits? Or do we join the game and start patenting every little invention we come up with, so that we can counter-sue patent trolls with our own trolling lawsuits?

How did we end up in such a sick situation?

SimonForsman

Jul 24, 2012 at 6:29 AM

The way i see there is only one solution, those living in countries with broken patent systems have to push for a reform, the problem isn't necessarily the patent system as a whole or even software patents as such but rather the flood of obvious "inventions" that occur every single time there is a technology shift in any market segment. one real invention, patented or not is almost always followed by a flood of patents for all the obvious things one can do with the new technology and it really is up to the patent offices to get their act together and reject the obvious patents.

Until a reform happens however there are only 2 viable options:
1) Avoid the broken markets (Hard since the US is one of them and it is pretty darn important)
2) Patent everything you can, no matter how silly it is, even if you can't sue patent trolls (They don't produce anything you can sue them over) you can atleast prevent them from patenting the same things. (The USPTO seem to only use their own database for prior art research)

Ofcourse, if you go route 2 you can't ever go bankrupt since you can be sure a patenttroll will buy up all your patents if you do and worsen the situation.

Stormynature

Jul 24, 2012 at 8:22 AM

Unfortunately in terms of law - all types of law, it is far easier for new laws to be made than it is to extinguish old laws. Essentially what this means is that a lot of laws that should extinguish (or when updated have their more archaic forms extinguished) through lack of applicability in a common sense can find new life in situations where they get applied in ways that they were not initially created for. A secondary aspect to this is the extensions of time limitations in laws that were created to have an extinguishable effect: a good example of this would be the copyright extensions enacted in various parts of the world - in Europe a copyright extension act actually took a number of public domain works and placed them back under copyright protection. In America this has led to increased periods of time being granted for copyright to be held before public domain kicks in i.e. The Mickey Mouse Act (coll.), not to mention what will soon be a very strong debate about the extinguishment of copyright and other forms held by corporations (which do not effectively die). With respect to patenting, the turnover of technology and associated inventions/processes has accellerated so rapidly that certain sectors such as the IT industry can literally have a replacing level of technology faster then what is normally provide as protection for in order to profit by your invention/process at the same time certain aspects change very slowly. I suspect that sometime in the not to far future patenting law will actually undergo a massive restructuring. Terms of 17 years for will probably still apply to certain sectors whereas other sectors will be afflicted with shorter terms. In all probability the decision of how long a term a specific patent might gain access to will probably be placed under a means test and this will become one of the new battlegrounds of patent law. Sadly it doesn't fix up the current situation and most likely future legislation would provide a sunset clause for all existing patents meaning a more equitable solution is still decades away at best before it is effective - not counting of course the ability of Corporations to gain further extension acts emplaced similar to the Mickey Mouse Act (coll.).

samoth

Jul 24, 2012 at 10:06 AM

There exists a quote made by the 3rd president of the country with the world's worst patent law (something about the tree of liberty, what was it again?). Incidentially it's the country with the most liberal gun laws worldwide as well.

To file a patent, you must reveal your name and where you live.

Put two and two together, it's only a matter of time before this takes its natural path.

lawnjelly

Jul 24, 2012 at 11:59 AM

I suppose the only thing people can do in areas where they have such stupid laws is campaign to have them changed.

Personally, being from europe (where we have tended to be a bit more sensible about this), it has meant in the past I've released certain software with a 'not to be exported to the US' disclaimer. Of course I'm sure no one downloading takes any notice, but it pushes the responsibility onto the user rather than the developer, and let's face it, no one is going to sue a user for unknowingly using something that might or might not infringe some dodgy software patent.

The other thing, as you rightly point out, is it makes open source something you have to think very seriously about. For me personally it's meant me writing closed source software almost exclusively, even when I'd have been happy otherwise to release source.

It has a lot of stifling implications - many people who contribute to open source may personally have unlimited liability in the case of infringement. In the old days a lot of people would release software in their own name .. but these days it's pretty unwise unless you have some kind of legal protection, like a limited liability company. Another way to do things is to use a pseudonym, do not divulge your details, and retain 'plausible deniability' should things go pear shaped.

And I'm with samoth, if someone would pay a visit to the trolls with mr smith and mr wesson, I'm sure the world would be a better place. It's just that their registered office will be in the bahamas or somesuch.

taby

Jul 24, 2012 at 2:26 PM

If you want to fix this, then the obvious solution is to get a law degree, campaign to become a US politician, win your election, do good service, kiss up to the president, get appointed to the Supreme Court, and then write a new law. Simple! Capitalism is your friend here, don't you know?

Seriously though, you bring up a good point: an idea without implementation should be considered fair game. Of course, it can totally go the other way: I know of a guy who took a deck of cards, threw 20 of them in the dustbin, and printed the word "Kaiser" on the backs of the remaining 32 cards -- which is the name of an extremely well-known card game (on the prairies anyway) that has been around at least since Ukrainian immigrants first came to Saskatchewan, which was quite a long time ago -- and managed to get a copyright because he "implemented" it. What a fucking douchebag, because it's likely that no one else will ever be able to implement a version of Kaiser on the computer, etc. without some kind of royalty payment to this guy (there is a software implementation by another person, and it's got the douchebag's name and copyright spattered all over it). The guy wasn't even born yet when this game was invented. I hope the guy gets hit by a falling satellite, and lives. Needless to say, my friend once invented a loose derivative of Texas Hold 'Em and the first thing I did was scoured the Internet for anything similar, found nothing, then implemented a version with AI in OpenGL/C and gave him the source code as a gift. No big rush to get it published (hi RIM!!), just covering his bases for him (hi Steve!!), because this world is indeed full of fucking douchebags that make me look like a saint by comparison.

Stormynature

Jul 24, 2012 at 2:35 PM

get appointed to the Supreme Court, and then write a new law

The supreme court does not write laws, politicians do (well okay their staff do...but they take credit!).
.

taby

Jul 24, 2012 at 2:50 PM

[quote name='taby' timestamp='1343140017' post='4962606']
get appointed to the Supreme Court, and then write a new law

The supreme court does not write laws, politicians do (well okay their staff do...but they take credit!).
.
[/quote]

It was a joke dude. To be certain though, laws don't strictly flow upward, otherwise there'd be no need for cocktail parties and golf games, and politically-aligned judicial appointments. Let's just not stretch the truth by implying that judges are fully impartial and hands-off, though I do see your point regarding how people are often told how it's officially done.

samoth

Jul 24, 2012 at 2:57 PM

The real problem is not the patents alone though, but the overall lack of liability and retaliation.

You can apply for a patent and sue someone for 50 million dollars of alleged damage, even if demonstrably no damage exists because you never implemented something. You can even do it when you demonstrably patented something that was well-known, trivial, and entirely based on prior art.

You can totally ruin a small company and any individual attached to it merely with the court fees. And nothing happens. The worst thing to happen to you is having the judge telling you "nice try, better luck next time". Or as in the Apple case: "guys, that wasn't very nice, I guess you should apologize".

What should happen is the judge telling you: "So that's 50 millions for the damage you did to the defendant, and another 50 millions because you wasted my time with a frivolous trial (can be used to pay governmental debts). Excuse me, did I hear something? That'll be another 50 million for what I thought I heard you saying...".

Got your registered office in the Bahamas? Wait, did you ever call someone in that office or did anyone there ever read email? Cross-border communication in conjunction with a crime... let's see what PATRIOT says about this...

Or, being tarred and feathered would of course work very well. Half a year of prison with no option of caution or parole (and I'm not talking of a Club Med style hollywood prison, but a place where Black Guerrilla, Nuestra Familia, and Arian Brotherhood fist-fuck you twice per day) for the responsible works wonders, too. Do that only 3 or 4 times and the number of frivolous cases will drop to zero within a week.

Of course I'm realistic enough to understand that this will never happen, because patent trolls have money, and money buys the law.

japro

Jul 24, 2012 at 3:19 PM

The scary part is that no one authority can even tell you if you are accidentally violating some patent. All you can do is hope for the best and see if anyone cares to sue you. You are essentially supposed to adhere to a "law" that is kept secret from you until you are accused.

way2lazy2care

Jul 25, 2012 at 3:38 AM

I didn't know this about US patent law until wiki-ing around, but this is interesting:

In the United States, the patent grant is presumptive, e.g. a patent shall issue unless the patent statutes preclude the grant. In other words, the burden is on the Patent Office to prove why a patent should not be granted.[3] Once a patent issues, however, it is presumed valid and a court may declare it invalid only on the basis of clear and convincing evidence.
[edit][/quote]

Maybe that's a large problem why things that are not novel sneak into patents so frequently? I think at least part of the problem is that experts aren't as involved as they should be also.

One thing worth listening too is the "This American Life" podcast on patent law. It's an NPR show, so it should be freely available online. It's a great episode that goes into great detail on the law though.

Hodgman

Jul 25, 2012 at 8:24 AM

lol @ samoth

I don't have much more to contribute, I got myself so worked up writing that post last night that I had trouble sleeping. First world problems...
However, it's really good to see the guy mentioned in my first post being told how bad and wrong he is on his blog:
http://www.blogger.c...754373617059493
There's even a current nVidia employee on there basically telling him that his patent is invalid.

[edit]He's also getting a good amount of hate on twitter: https://twitter.com/jeffatrad/status/227898174482837507

richgel999

Jul 26, 2012 at 8:06 AM

Hi - I'm the author of crunch. I've put out a blog post about the whole thing:

The Saga of Crunch: A short history, the patent situation, my last email to the patent holder and what I'm doing with the library next:
http://richg42.blogspot.com/

And I won't be removing/deleting the Comments section. ;-)

-Rich

21st Century Moose

Jul 26, 2012 at 11:36 PM

I've always been intrigued by the notion of using patent law against itself - sort of like Microsoft's Open Specification Promise but taking it a step further and even going public domain.

The idea is that you invent a technology, patent it, and then public domain it. That should protect it from patent troll activity well enough. I will however admit that as an EU citizen I may be a little (or a lot!) naive about the finer points of US patent law, so I'm quite open to any kind of further comment on this.

Mussi

Jul 27, 2012 at 12:17 AM

I have heard you and I am granting the open source community immunity from this patent.[/quote]

Seems like this won't be an issue.

Alpha_ProgDes

Jul 27, 2012 at 1:16 AM

If you want to fix this, then the obvious solution is to get a law degree, campaign to become a US politician, win your election, do good service, kiss up to the president, get appointed to the Supreme Court, and then write a new law. Simple! Capitalism is your friend here, don't you know?

Seriously though, you bring up a good point: an idea without implementation should be considered fair game. Of course, it can totally go the other way: I know of a guy who took a deck of cards, threw 20 of them in the dustbin, and printed the word "Kaiser" on the backs of the remaining 32 cards -- which is the name of an extremely well-known card game (on the prairies anyway) that has been around at least since Ukrainian immigrants first came to Saskatchewan, which was quite a long time ago -- and managed to get a copyright because he "implemented" it. What a fucking douchebag, because it's likely that no one else will ever be able to implement a version of Kaiser on the computer, etc. without some kind of royalty payment to this guy (there is a software implementation by another person, and it's got the douchebag's name and copyright spattered all over it). The guy wasn't even born yet when this game was invented. I hope the guy gets hit by a falling satellite, and lives. Needless to say, my friend once invented a loose derivative of Texas Hold 'Em and the first thing I did was scoured the Internet for anything similar, found nothing, then implemented a version with AI in OpenGL/C and gave him the source code as a gift. No big rush to get it published (hi RIM!!), just covering his bases for him (hi Steve!!), because this world is indeed full of fucking douchebags that make me look like a saint by comparison.

Isn't there a law that says that if something has been in use for X number of years then you can't patent it? It's something like Public Domain or Fair Use law or something like that.

Drew_Benton

Jul 27, 2012 at 5:18 AM

I have heard you and I am granting the open source community immunity from this patent.

Seems like this won't be an issue.
[/quote]

It still is an issue, and it will always continue to be one for any oss project threatened with patent violations.

If you accept him saying that, then you are operating under the assumption the project actually does violate the patent (or admitting it did violate the patent). Just because he thinks the project violates his patent, doesn't mean it actually does; that is for the legal system to decide.

Looking past that important point, will that statement on a blog be upheld in a court of law a legally binding agreement? I think not, but that's not up to me to decide. There needs to be two sides to the agreement. What does it mean to be a part of the open source community? Which one (there are public and private ones)? What about commercial usage? There's too many questions to simply take that at face value and think it's "ok" now.

Maybe he changes his mind, maybe he sells the patent to someone else who has a different opinion, or maybe he means it, and won't ever take action. Who knows, it doesn't matter. What does matter is that before you use the library, or any library for that matter, you have to be aware of patent issues and be able to handle them accordingly. In this specific case, it's been shown that you might run into patent issues, so you will have to plan for the worse and seek legal counsel if you really want to be sure.

FWIW: I think Doug Rogers got the short end of the stick here. Looking at the released initial e-mail, I think it was pretty civil, done in a respectful matter, and in a way that was not meant to have things blown out of proportion. But what about the title you might say? Well it's an appropriate title to ensure the e-mail gets read. If I saw an e-mail with that title in my inbox, I'd surely click on it. But as with anything on the internet, things tend to get blown out of proportion way too easily. It's not like he was threatening a lawsuit in the shown e-mail or had actually filed a lawsuit, he seemed to want to try and talk things out and now look where that got him.

It really sends a bad message because perhaps people might feel less inclined to try and open a dialog in the matter rather than just rushing straight into a lawsuit. Compare the e-mail Rich got vs the one Notch got. Which would you rather...? Anyways, I'm just commenting about the specific stuff at hand rather than patents in general. There's no need to beat a dead horse; the patent system needs to be drastically overhauled when it comes to software.

Mussi

Jul 27, 2012 at 10:18 AM

If you accept him saying that, then you are operating under the assumption the project actually does violate the patent (or admitting it did violate the patent). Just because he thinks the project violates his patent, doesn't mean it actually does; that is for the legal system to decide.

I wasn't assuming the project actually violated his patent, but you make a good point. That statement implies he thinks it does, which might cause troubles in the future for the reasons you mentioned.

What I was trying to say was, he seems decent enough to not bother Crunch again. That's not to say that Rich doesn't have to worry/prepare any more, but it does take the edge off.

_the_phantom_

Jul 27, 2012 at 10:59 AM

What I was trying to say was, he seems decent enough to not bother Crunch again.

SimonForsman

Jul 27, 2012 at 11:47 PM

[quote name='Mussi' timestamp='1343384324' post='4963588']
What I was trying to say was, he seems decent enough to not bother Crunch again.

But it says nothing about the users of Crunch, nor what happens if you take Crunch and use it in a commerical product which is ok by Crunch's license based on my quick reading of this, but is it ok via his 'I wont have a go at the Open Source community' promise?

Personally if I was working on a closed source project, such as a game, I'd either keep my usage of Crunch quiet or just reinvent it in-house and don't make the usage of the tech known in an attempt to just avoid any issues at all.
[/quote]

Most likely he'd go after commercial users, this is how it often work with patents that are infringed on by free/gratis libraries, suing poor people is not a good idea. (It brings you badwill and even if you are right and win they won't be able to pay you what they owe)

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