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Patents Technology

Understanding (and Avoiding) Software Patents? 72

Posted by Cliff from the patent-infringement-mine-sweeping dept.
An anonymous reader asks: "I'd like to write some Free backup software, but this area is mined with patents. I downloaded one and tried to understand it, but the 'claims' section (arguably the most important part) is made up of utterly incomprehensible patentese, and I can't afford to hire a patent attorney to help me understand it. Are there any free or cheap ways to learn enough about patents to understand them, so I can figure out exactly what is patented and therefore avoid it?"
"How different does my software have to be in order to be non-infringing? The patent I tried to understand is Dantz's 5,150,473. Many, including Slashdot readers, have said what this patent covers, but from reading the patent itself, I would never have guessed. Also, there are lots of other patents to understand and avoid, so I'm looking for general information on how I can unravel it all into language I can understand."
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Understanding (and Avoiding) Software Patents? More

Understanding (and Avoiding) Software Patents?

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  • understanding doesn't help. (Score:4, Insightful)

    by gl4ss ( 559668 ) on Monday March 14, 2005 @07:23PM (#11938195) Homepage Journal
    you can't know if there has been some patents applied that haven't been published yet.

    it's impossible for you to learn of all the patents that you might have to deal with.

    the solution? just write the fsckin software, if someone complains then take it out.
    • Parent is right.

      A lone person simply cannot handle this task so you are better off just writing it and then if anybody comes after you (and you are actually infringing...not just being chased away), you either fold or find another solution such as letting the EFF or somebody use your situation as a poster child for patent reform.

    • Re:understanding doesn't help. (Score:3, Insightful)

      by Anonymous Coward
      A lawyer who would probably not want to be identified with the large patent-holder (and lawsuit target) for which he works recommended that programmers *not* read patents. The implication was that "ignorance of the law" mitigated damages.

      Why not "read and avoid?" The lawyer didn't say, but I'd guess that it's hopeless. I was once named as a "co-inventor" and yet couldn't recognize the invention in the patent write-up which came back from the lawyers.
      • 'A lawyer who would probably not want to be identified with the large patent-holder (and lawsuit target) for which he works recommended that programmers *not* read patents. The implication was that "ignorance of the law" mitigated damages.'

        Well, more correctly, if you're ever accused of infringement, awareness of the contents of the patent will greatly increase your damages. I've also heard this, from several different lawyers, including lawyers who were expert in US patent law. It certainly seems to be
        • It's not exactly awareness of the contents that will increase your damages. What increases your damages (by trebling them) is "willful infringement" which means you know of a patent and you know you're infringing but you keep on doing it.

          Of course the easiest way to avoid willfully infringing any patents is to not know of any in the first place. But this will fall apart the first time you get a cease and desist letter.

          The best way to know you aren't going to get nicked for crazy damages if you are fo

      • Re:understanding doesn't help. (Score:4, Informative)

        by tverbeek ( 457094 ) on Monday March 14, 2005 @10:19PM (#11939756) Homepage
        A lawyer... recommended that programmers *not* read patents. The implication was that "ignorance of the law" mitigated damages.

        It isn't so much "ignorance of the law" that provides some protection, but the ability to demonstrate that you were ignorant of the patented invention, because if they can show that you read the patent, that would imply that you ripped off the idea from it.

        But if you haven't ever looked at it, you can make your alleged infringement look accidental, which might (in theory) even strike down the patent, by showing that it was obvious to someone familiar with the state of the craft.

    • you can't know if there has been some patents applied that haven't been published yet.

      Actually, I think a good improvement for the patent system would go like this:

      1. Every patent application is kept secret for a certain period of time (the same time for every patent in a particular field).

      2. At the end of that period, the patent is either issued or rejected.

      3. If someone else invents the same thing within the secrecy period, it is evidance that the subject of the patent application is obvious
      • A secrecy period like that would make it impossible for other practictioners to challenge unwarranted patents before they get issued.

      • The downside of this, of course, is that if you attempt to sell your invention or incorporate it in a product prior to the expiration of the secrecy period, somebody else could copy it and invalidate your patent.

        That's easy enough to solve. Just make the length of the patent a multiple of the secrecy period. (I'd probably pick a factor of 4-10.) Thus, the applicant gets to decide how long to risk keeping it secret, and the more he's confident that it's original, the longer he can keep the patent. There

  • If you aren't making money.

    • Re:Nobody's going to sue you (Score:4, Insightful)

      by miu ( 626917 ) on Monday March 14, 2005 @08:49PM (#11939036) Homepage Journal
      They might sue you if they believe that you are preventing *them* from making money though.
    • Just go back in time by about 20,000 years. Invent everything. Bam - prior art. Now the whole stupid patent system is invalid.
      • The thing is that patents don't suck, really - can you think of a better way to make raw research pay off than to award the inventor a limited time monopoly on the results? Any other system would simply make inventors bear the cost of research and then a producer could swoop in for the profit. The thing that sucks is the awarding of software patents for a ridiculous length of time and for trivial non-inventions.

        • Re:Nobody's going to sue you (Score:4, Insightful)

          by Crayon Kid ( 700279 ) on Tuesday March 15, 2005 @09:19AM (#11942425)

          The thing is that patents don't suck[...] Any other system would simply make inventors bear the cost of research and then a producer could swoop in for the profit.

          I've heard this argument before, but it doesn't sit well with me. How can someone come and just "swoop in for the profit"? What do you think software development is? It's not like taking someone else's photo collection and just using it.

          Even if I got access (legally!) to the complete source code for any successful commercial software product out there, I couldn't just cash in on it. I'd still have some investing of my own to do. I'd have to pay programmers to make a viable product out of it, I'd have to handle distribution and support. Even so, it would be just a clone. If I wanted to get the edge on it I'd have to invest some creativity and implement some additional features at the very least. Not to mention preventing the product from becoming obsolete, which could mean anything from adding new features periodically to catching up with other technologies (either hardware or software).

          Add copyright to the equation and enforce it, and it means I cannot use the code verbatim anymore, even if I know all the great ideas and have the previous code layed out for me. I have to get programmers to reimplement it.

          So "cashing in" on somebody's else's work is not so easy as it seems, not in software world. Copyright IMO is the best compromise between allowing freedom of inovation and protection of rights. Patents take this to a whole new level of complication, with emphasis not on "protect the original author" but on "award someone a monopoly on (often) arbitrary basis".

          • I was talking more specifically about patents on physical inventions, but I can imagine software constructs that would qualify as an actual invention. No amount of copyright will protect a physical or software device once it released to a public audience, and that is the point at which a "producer" (eg MS, IBM) could swoop in and take the market from the inventor.
        • Agreed. But with software, there's already copyright protection. I can't think of too many other things that you can protect with both copyright and patent. I think software should only be covered by one or the other. The combination gives the owner too much power over its use.

  • Don't go looking for trouble (Score:3, Insightful)

    by rossifer ( 581396 ) on Monday March 14, 2005 @07:36PM (#11938343) Journal
    Perversely, it's not a very good idea to actually do a patent search before lunging into your neat new idea. Should you actually find evidence that your invention was close to patented technology and that fact comes out in court, you will be accused of violating the patent deliberately.

    If you never looked, on the other hand, you just didn't know about it and may have violated someone's patent as a result.

    Further, you'll only be subject to serious trouble on the patent front if you're wildly successful (i.e. harming the patent holder's market share). In that case, there ought to be enough interested parties with money to actually handle the challenge.

    I am not a lawyer, but I've talked to a few on this exact subject with the exact same question.

    Regards,
    Ross

    • You got some bad legal advice (Score:1, Insightful)

      by Anonymous Coward
      > If you never looked, on the other hand, you just didn't know about it and may have violated someone's patent as a result.

      IAAL and I can tell you that in tort law, ignorance is not a viable defense. This is basic tort law and any lawyer who passed bar should know this.
      • This is basic tort law and any lawyer who passed bar...

        And, ya see, that's where we get into the problem...
      • It's not a defense, it's avoiding the additional penalty. Regards, Ross
      • It isnt ignorance of the law, it's ignorance of the patent. And it isnt a defense, it's avoiding possible willful infringement damages.

        > IAAL

        Yeah, well, when even lawyers have trouble understanding the ins and outs of patent law, maybe it's time to do something serious about it, eh?
        • Yeah, well, when even lawyers have trouble understanding the ins and outs of patent law, maybe it's time to do something serious about it, eh?

          I note the previous poster didn't say he was a patent lawyer. Those are an especially weird breed. Generally failed engineers who were argumentative enough and had high enough alcohol tolerance to make it though law school.

  • Treble damages (Score:5, Insightful)

    by danpat ( 119101 ) on Monday March 14, 2005 @07:36PM (#11938347) Homepage

    In addition to there simply being too much to read, in the US, if it can be shown that you knowingly infringed a patent, the amount of damages you can be liable for is trebled (x3).

    You're much safer in your ignorance.

  • Um what? (Score:1, Insightful)

    by Anonymous Coward
    Just write the damn thing, I don't see what's wrong with it being patented

  • ObLinus quote (Score:3, Funny)

    by ccady ( 569355 ) on Monday March 14, 2005 @07:43PM (#11938413) Journal

    Do what Linus does: don't read patents.

    "Technical people are better off not looking at patents. If you don't know what they cover and where they are, you won't be knowingly infringing on them. If somebody sues you, you change the algorithm or you just hire a hit-man to whack the stupid git."

  • Translation of Patents into English (Score:5, Insightful)

    by seanellis ( 302682 ) on Monday March 14, 2005 @07:48PM (#11938459) Homepage Journal
    The way I have attacked this in the past is to go through it sentence by sentence and translate it back into English, keeping a glossary of things which seem to make sense in context.

    From your example: "The archive format includes the transfer of data to an archive media member, which archive media member can alternatively be addressable or sequential memory and can be recordable in either a rewriteable or right [sic] once manner."

    Glossary: Archive media member - a tape or disk. (This is backed up by the fact that these may be sequential or "addressable" (i.e. random access)).

    So, in other words, "The archives are stored on tapes or disks, which may be rewritable or write-once."

    This is, of course, a tedious and laborious process. (Just imagine, however, being a patent lawyer and having to actually write this stuff for a living.)

    Note well that, if the CIID passes, us software developers in Europe are going to have to learn to do this much more often. Here's an obligatory link to the FFII [ffii.org] for the benefit of anyone who's been on Mars for the last 6 months.

    OK, here's an idea. How about an open directory of patent translations?

    Once you've translated a patent into English, you would upload it to the directory for others to use. They would be available under something like a creative commons license, with a feedback/rating system, standard disclaimers that original legalese has priority over the translation (of course), and that translations are supplied for convenience only.

    The web interface could optionally display the original and the translation side-by-side, aligned by paragraphs, so you can easily cross-check. There should be a simple way to post/suggest corrections.

    NOTE: This posting consitutes prior art on this concept. You may not patent it!

    ASIDE: The method described for translation is basically the same as that described by Richard Feynman for dealing with obtuse english. Here's a quote:

    "There was a sociologist who had written a paper for us all to read - something he had written ahead of time. I started to read the damn thing, and my eyes were coming out: I couldn't make head nor tail or it! I figured it was because I hadn't read any of the books on that list. I had this uneasy feeling of "I'm not adequate," until I finally said to myself, "I'm gonna stop, and read one sentence slowly, so I can figure out what the hell it means.

    So I stopped - at random - and read the next sentence very carefully. I can't remember it precisely, but it was very close to this: "The invidivual member of the social community often received his information via visual, symbolic channels." I went back and forth over it, and translated. You know what it means? "People Read."

    (From "Is Electricity Fire?" in "Surely You're Joking, Mr. Feynman".)
    • The only problem with this would be its definitiveness. You'd have to make totally sure that you expressed that it was for non-definitive explanatory purposes only, and did not purport to be a legal reference, etc., etc., cover your butt... Otherwise you'd be in trouble if your definition wasn't "right on" enough, and the discrepancy ended up getting someone in legal trouble.

      I'm not saying it's not a good idea, though, just that it would have to be sufficiently disclaimered.
    • Note well that, if the CIID passes, us software developers in Europe are going to have to learn to do this much more often.

      I don't get it, if developers in the US who already have these laws don't do this, what makes you think developers in Europe will have to?

    • Two points:

      1) You might be infringing crown copyright (or equivalent in your jurisdiction) by doing this as you are creating a derivative work for which you do not hold rights!!

      2) The reason it says "data storage means" (or whatever) rather than CDR is that it has been broadened. It becomes ridiculous to replace every "data storage means" token with something like "CDR, CDRW, DVDR, DVDRW, Tape, Memory Stick, ..." and you're bound to miss something off your list. Similar wording like "fixing means" would b
      • I agree that there may be a copyright problem here. A translation is a translation, regardless of whether it's French to English or Patentese to English.

        However, for ease of reading, it should be obvious that specific instances of things are easier to deal with for most readers. Granted, a "sequential archive media member" isn't always a tape, but that phrase has no immediate reference in people's minds - they have to laboriously unpick it and make a new mental symbol to represent it. "Tape" may not be com
      • In the USA "crown copyrights" don't apply as they simply don't exist. If it is a public document then it lacks a copyright. That may not be true for some state government records, but for U.S. Federal publications they are all in the "public domain", including patent records. The trick is simply to get access to the records in the first place.

        That said, it would be futile to try and do a commentary on all patents in the USA, as the USPTO is willing to give you a patent for just about anything that can b
        • It is this volume that would make any community effort to annotize patants to be useless except on the most controvercial patents.

          That, and the fact that such "translations" into English would be largely worthless, as changing the language would necessarily mean changing the scope of what the language covers. Reading a "plain English" translation of a patent would not tell you claim scope--the only thing that matters on a patent. The scope is determined exactly by the language used, as defined in the bod

  • If you are concerned about software patents... (Score:5, Insightful)

    by mellon ( 7048 ) * on Monday March 14, 2005 @08:07PM (#11938663) Homepage
    ...work to get rid of them. Seriously. There is absolutely nothing you can do to protect yourself from software patents, other than this.
  • OK - so it's a bit drastic, but (thankfully) US law doesn't yet apply worldwide.

    Here's a question for the lawyers and not-a-lawyers with more time for legalese for the rest of us - if you're physically resident in one state, but only ever store and write programs in a second, and publish (whatever that means) in a third, which law applies?

    • I'm not sure if you're talking about US states here, or "states" as in nations.

      If it's the former, there is no state patent law, as all patent law is federal (as is copyright law, both by the U.S. Constitution). Any patent suit in any state will be brought under federal law, so the states involved are largely meaningless.

      If you meant which country, it could be more than one, or even all three, and it would depend on the laws of each state. Of course, there might be conflicts of law rules in one or more
      • as all patent law is federal (as is copyright law, both by the U.S. Constitution).

        Just a minor quible but the constitution, while providing the basis for federal patent and copyright law, does not in and of itself prohibit states from having patent and copyright laws. What does, in the case of copyright law, is Title 17 section 301 of the US Code which reserve to the federal government the right to enact copyright law. I'm sure there is something like that for patents, I just don't know it off the top o
        • While that's true that it doesn't explicity give Congress exclusive power to do so, the fact that Congree can write such a law comes from the fact patent and copyright power are given in the Constitution and from the Supremecy clause. Otherwise, Congress would never be able to carve out the law just for itself in the first place.
        • I'd have to say that it's debateable whether the Constitution allows states to make patent law or not. The 10th Amendment says:

          The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

          The Constitution does not explicitly prohibit states from issueing patents and copyrights. But since Article I, Section 8 [usconstitution.net] does give Congress the power to issue patents and copyrights, I think that means that the power

    • Here's a question for the lawyers and not-a-lawyers with more time for legalese for the rest of us - if you're physically resident in one state, but only ever store and write programs in a second, and publish (whatever that means) in a third, which law applies?

      Patent law covers making, using, and selling the patented invention. Anywhere any of those acts took place, that law would apply. If you write it in Canada, you "made" it in Canada. Canadian law applies to the act of writing. If you sell it in the U

  • Wouldn't it be funny if patent refrencing software was patented... hahahhahahaha... oh wait...

    Good lord I'm evil.
    • I think it would be funny if someone would attempt (it may have already been attempted) to patent the patent system. Write something so obscure that it gets past them - that would be funny. Heck, you could even patent software for viewing patents - get both regular and software patents involved.

      Yes, while its prior art, I'm sure if you tried enough, had enough money and where bored enough, you could get it approved. Immediately release what happened to the media and watch how the system squirms under press

  • Fish/Google (Score:5, Funny)

    by CyberVenom ( 697959 ) on Monday March 14, 2005 @08:55PM (#11939083)
    Dude, that's like, totally bogus! Try using the Fish on it... Maybe its in like, Polish or something...

    Seriously, it would be interesting to see the technology behind Google Translate or AltaVista Babelfish applied not only to proper languages but also to specialized jargon and dialects: Legalase, Technobabble, maybe even Diner.

    Hmmm, imagine using the fish to translate "From Legalese to Engrish" *cringes*

    • Seriously, it would be interesting to see the technology behind Google Translate or AltaVista Babelfish applied not only to proper languages but also to specialized jargon and dialects: Legalase, Technobabble, maybe even Diner.

      I'm pretty sure both Diner and Technobabble could be successfully translated. Both share the purpose of being a shorthand with very specific meanings. Both are "designed" to allow insiders to communicate unambiguously.

      Legalese (or at least Patentese) would be a lot less likely.

  • There have been a few cases that source code is speach, i.e., in relation to publishing encryption code. If any of those cases held up, then it may also apply to patented algorithms. Therefore if you only publish source code then it would be up to the person compiling/running the code to check for patent infringements. Of course it would be nice if the system actually worked like this...
    • I've actually written a law review comment on these laws. While one case did hold that code is speech, a few others haven't; it depends on the jurisdiction. And the case that would be the most likely precedent to patent law would probably be the 2600 case, since it involved the DMCA, and that didn't accept the free speech rationale as enough of a defense. Frankly, and annoyingly, it's really hard to get judges to recognize code as speech, since to most of them it's just a bunch of meaningless symbols; at
      • What you emphatically cannot patent is a pure algorithm.

        Really? I thought 'anything made by man under the sun' was patentable in the US. After all, two prime numbers represented in hex have been patented.

        Note that even a few lines of software (strictly speaking a process which stops, C=A+B is sufficient) is exactly equivalent to an algorithm (Church, Turing etc.). I've read somewhere how the US courts managed to frig the semantics such that a 'pure' algorithm is not patentable but you can patent the
        • Right, you mention a computer, so that what are you patenting is the computer, not the pure algorith itself. And of course, the difference is pretty much nonexistenct for practical purposes, but since we were working with a contrived example of just publishing source code, I think that was one of the few times that difference mattered.

  • Too much scope... (Score:4, Insightful)

    by Spoing ( 152917 ) on Monday March 14, 2005 @11:45PM (#11940327) Homepage
    It's not possible to know where and how you might be in violation of an unknown patent. The best you can do is dodge the obvious patent violations or as others have said don't go looking for trouble.

    Besides, if you spend all your time looking for a patent you mighg be violating, you'll not get any coding done.

  • Simple (Score:5, Funny)

    by Anonymous Coward on Tuesday March 15, 2005 @02:17AM (#11940990)
    Just clone something at least 20 years old. Bring it up to modern standards by adding translucent drop shadows and a few gratuitous memory leaks. This is the method used by all major software publishers and it works without fail.

  • The Anatomy of a Trivial Patent (Score:3, Informative)

    by DrMorris ( 156226 ) on Tuesday March 15, 2005 @05:22AM (#11941556)
    There is an article about "The Anatomy of a Trivial Patent" [linuxtoday.com] written by RMS. It may be a nice introduction to the topic if you want to read more complex patent texts.

  • For a temp solution (Score:4, Funny)

    by boogy nightmare ( 207669 ) on Tuesday March 15, 2005 @05:28AM (#11941579) Homepage
    Or for a more temporary solution.... move to Europe

  • I have worked on a software patent in the past (Score:1, Insightful)

    by Anonymous Coward
    Now before you take me outside and give me a good (and possibly deserved) kicking this was for a fairly involved process, and not for something blatantly obvious and oft-used (isnot anybody?)

    Despite writing large chunks of the text after the legal department had their way with it I can't tell you what it does.

    Not out of fear, or nondisclosure or other legal hurdles - it's just but I don't understand a damn word of it!

    What do these legal teams smoke in their breaks?

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