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
    Jason, 2 Dec 2010 @ 10:02am

    Walling in the progress?

    @Mike Masnick, I'm with Andrew F, here. If you read further in the Slashdot comments, there's a great discussion of how it's not likely that this was a copy-to-patent scenario, but something far more convoluted and troubling.

    It seems that, at least for software, the current patent system creates quite nearly the worst possible outcome for "promoting the progress." Rather than mining commit logs for things to copy and patent it seems that instead companies scour the documentation of prior art to do everything they can to wall that innovation in.

    Almost like an antibody in your bloodstream, they work to conceive of every possible microinnovation to fill in the gaps in every contour of an application of prior art, and THEN THEY PATENT THE GAPS. This essentially begins to squeeze out future innovation in related applications because in order for anyone else to progress further, they would have to pay to make use of possibly several patented microapps.

    The extremely troubling thing is that the slashdotters in the know on this talk about it like this is simply the norm, and "of course you wouldn't fight to invalidate just to re-open the playing field (as Tsiodras seems to want to do in your scenario above) because it costs way too much and where's the money in it when you do?

    To conceive of the terrible problem with this, imagine saying that you were trying to "promote the progress" of traffic by converting every vehicle into a Tron-esque lightcycle.

    Just as in the Tron game, there seems to be extreme incentive to race to cover new ground, but in reality the structure of the game is such that the best strategy is to race ahead only to twist and turn and trap everyone else so that they are forced to turn a corner, drive suddenly into one of your walls and implode.

    Mike, this seems to me to be the driving force behind the trend you've highlighted as patent thickets. How did we decide to artificially impose zero-sum rules on what is not only a non-zero sum game, but one of compounded aggregate gains?

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