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Are Companies Scanning Open Source Commit Logs And Patenting What They Find?

from the prior-art? dept

It's funny how often we hear patent system supporters tell us that if you haven't actually gotten a patent for your invention, it's perfectly reasonable for someone else to go and patent it instead. The idea of presenting an idea for the public domain or for open source purposes seems foreign to them. Recently, I've seen two examples of questionable patent applications that appeared to take content that was put out publicly, and tried to turn them into patents. The first, found via Dave Farber's IP list is a patent which an open source developer suggests almost identically matches code that he committed to an open source project. The guy who wrote that post has since backed down a bit on his original claims that the patent was clearly "copied" from his open source commits, but still notes that the patent application in question is ridiculous.

Then there's a similar story, found via Slashdot of a guy who coded an open source library for Windows in 2001 (inspired by a Bruce Perens project from 12 years earlier) and just discovered that IBM appears to have patented the same technology -- even mentioning this guy's own blog post in the references section.

Whether or not these two patents are examples of various companies trying to patent open source technologies as they're being developed, it does highlight yet another problem with the patent system as it is set up today. Even if there does appear to be clear prior art, it's not as if the Patent Office seems willing, capable or interested in actually understanding how these patents are simply copying what's already being done elsewhere.

Filed Under: open source, patents, software


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  1. identicon
    Andrew D. Todd, 2 Dec 2010 @ 8:10am

    Benefits of the First To File System

    The "First to File" system of patent priority offers a solution. Despite its name, the "First to File" system is actually a modified "first to publish" system, similar to that used in pure science. That is, it works something like the following:

    1. If you were not the first to publish, and you were not the source of the first-publisher's information, you may not have a patent. STOP.

    2. If you were not the first to publish, and you were the source of the first-publisher's information (ie. though a breach of confidence or something like that), you have to file for a patent within a year after they have published. If you prefer, you can just produce evidence that the first-publisher got the information from you, and the matter goes into the public domain.

    3. If you were the first to publish, and you developed the information independently, you have a year after publication to file for a patent, otherwise it goes into the public domain.

    Only if none of the competing parties has published does filing date become decisive. If there is any likelihood that anyone else is working along the same lines, this system rewards the act of publishing your lab notebook every day, via the internet, and figuring after the fact whether it is worth anything.

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