
Inventor says Google is patenting work he put in the public domain - buserror
https://arstechnica.com/tech-policy/2018/06/inventor-says-google-is-patenting-work-he-put-in-the-public-domain/
======
dxhdr
Reading through the linked 2014 email exchange is somewhat amusing. I love how
the first two responses to his ideas are uninformed cynicism regarding
increased hardware memory costs.

Then things start to make a bit more sense with another engineer interested in
coders actually digging in and verifying / debugging his work.

And then of course it takes a dark turn at the end with Google applying to
patent his ideas which he so generously offered to them.

~~~
Promarged
It reminds me of one person here on HN describing their interaction with
Google w.r.t. their startup's novel idea.

------
hamami
I think it would be useful if there was a patent type for "free for anyone to
use", something like the MIT License in open source. This would make it easier
for patent officers to discover and reject applications conflicting with prior
free to use patents and offload the burden of keeping track of this from the
inventor to the patent office.

~~~
maxk42
Well it used to be that no action was necessary to prevent someone from
patenting something you've already invented and released publicly: The first
person to invent it had the right to patent or not patent it, and nobody else.

A few years ago we switched to a "first-to-file" system and this is a direct
consequence of that. Someone who didn't invent something can now file a
patent. Doing so is a lengthy, expensive process, so the immediate consequence
is there is no more "public domain" inventing.

This needs to be reversed.

~~~
paulddraper
I'm not saying the system is perfect, but there is a reason we switched to the
current system.

If I've invented widgets (or think that I've invented widgets), I should be
able to know if I can patent and sell them, without years later getting sued
because someone once did it in their basement and left it at that.

~~~
Natanael_L
First to invent doesn't automatically mean they can sue when you file your own
patent and intend to sell - they have to file their own patent first, and if
you've already published enough of the invention before they even filed, then
that only means _neither side_ gets a patent (original inventor because they
can't wait until after publication to file, second inventor because they were
late).

Also, first to file has the same problem you mention. You can invent
something, never publish, and get sued by somebody who reinvented it later.

------
djsumdog
I wish more of the world would take New Zealand's stance. Software patents are
banned in that country. The US/EU should really go a similar route.

~~~
dd36
It’s probably too late. Too many entrenched interests and public interest
groups don’t have resources.

~~~
tabtab
It will probably only change if non-software-patent countries start kicking
our economic butts. THEN policy makers will take notice.

------
mikece
What is the relative advantage of putting something into the public domain
versus releasing under an Apache 2 or MIT license? The latter doesn’t restrict
anyone’s use AND establishes a public record to refute what Google is trying
to do. Additionally, communications by email could be via GitHub issues and
open to all to see.

~~~
ajb
enedil is correct.

To expand on that: MIT and Apache2 grant a licence to copyrightable
expression. But the literal code is not what is patented, the idea is.
Granting a license to the code doesn't automatically prevent someone else from
patenting the idea.

MIT doesn't say anything about patents. Apache2 additionally grants a licence
to any patents which the author has which cover the work, and also tries to
prevent someone using the work and then suing other people for patent
infringement. But it does so by saying " any patent licenses granted to You
under this License for that Work shall terminate as of the date such
litigation is filed." Which is a null threat in this case, as the idea is to
try to prevent there being a patent in the first place.

You could argue that the author should have patented the idea, and then freely
licensed it. But since patents cost thousands each, that's a bit much to ask.

~~~
mcbits
That sounds backwards if I'm reading you right. An idea can't be patented
(well... in theory), but a new invention based on an idea can. Google
apparently thinks they've got a new, non-obvious invention based on Duda's
public domain work, which may itself have been patentable but wasn't.

That's one reason why companies rich enough to spam the patent office tend to
do so. Company A invents X. If they don't patent it, then Company B can invent
X+1, a minor improvement on X, and patent X+1 themselves. Now Invention X
can't compete with X+1, so Company A invents X+2, an improvement on X+1, but
now they have to pay license fees to Company B even though they invented the
original thing! Solution: just try to patent every stupid thing.

~~~
tacon
No, the way to protect yourself is to disclose anything you don't want to
patent, but don't want patented against yourself. IBM had a great system for
several decades[0]:

[0]
[https://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bulle...](https://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bulletin)

~~~
mcbits
That establishes prior art for X, but X+2 would still potentially infringe on
X+1 and they'd have no leverage for negotiating a license. Except they're
still one of the biggest patent spammers, so they probably do have leverage in
the portfolio somewhere.

------
kyle-rb
This reminds me of the "pull to refresh" patent that Twitter owns, but has
promised to only use defensively.

Optimistically, Google wants a similar thing so they can defend the use of
this technique if someone tries to seek royalties for use of this video
encoding technique.

A little less optimistically, Google wants it so they can pull the license
from a specific party if that party tries to sue them for an unrelated patent.

~~~
ndr
What do you mean by defensively then Isn't patent war a bit like Risk in that
whoever has more patents (no matter how related) used by the other party wins?

~~~
jaredklewis
More like MUD. The cost of litigating a patent war between companies at the
scale of Google is so high, that it’s generally not in anyone’s interest.

~~~
QuercusMax
I think you mean MAD - Mutually Assured Destruction. Although a patent-war MUD
(multi-user dungeon/domain) might be an interesting premise.

~~~
jaredklewis
Oh, yes, definitely meant that, thanks!

------
xfs
Read this reaction from xiphmont:
[https://xiphmont.dreamwidth.org/84214.html](https://xiphmont.dreamwidth.org/84214.html)

It paints a quite different picture.

~~~
allenz
This comes off as rather dismissive. Xiphmont simultaneously claims that
Jarek's work is useless ("the performance claims just don't hold up") and that
Google needs a defensive patent on it.

As someone on encode.ru pointed out, "if Google genuinely wanted this as a
defensive patent, then the right approach is to work with Jarek and pay for
him to file a patent on ANS itself blocking as many of the spin-off patents as
possible." They didn't even talk to him before patenting his work.

~~~
kevmo314
That doesn't sound like the right approach. Google has the resources to
actually defend the patent. While ideally/ethically Jarek should be the one
with the patent, if the patent is only being used defensively, Jarek probably
isn't the right entity to actually defend it.

~~~
allenz
Google could also buy the patent from Jarek. At minimum, they should have
talked with him.

------
tehabe
Another example why software patents don't really work. Because most thing
software patents cover are not really inventions but ideas. Also the written
code is already protected via copyright. That is the difference to a eg. wind
mill, the blue prints are only protected by a patent, not by copyright. And it
effects only the implementation.

~~~
monochromatic
What’s the difference between an invention and an idea?

~~~
pbhjpbhj
An invention is the implementation of an idea, it can in theory be made. An
idea can't be made.

A faster than light drive is an idea. A detailed description of a working
physical device that can propel a vehicle faster than light; with sufficient
detail that experts can make the device from the description is a potentially
patentable invention.

------
DannyBee
"a view largely endorsed by a preliminary ruling in February by European
patent authorities"

If one clicks through, you discover it says literally nothing of the sort, it
just says they will include that email exchange as a possible prior art
reference (along with a lot of other things).

It actually doesn't express any opinions at all, except on the priority claim,
which is not related to this part.

It is literally a notification that says "we will consider these two
additional things as possible prior art references"

This part is very shoddy reporting.

~~~
allenz
I think you missed the other seven pages. Page 2 paragraph 6:

> The present application does not meet the criteria of Article 33(1) PCT,
> because the subject-matter of claim 1 does not involve an inventive step in
> the sense of Article 33(3) PCT.

~~~
DannyBee
The PDF it gives you on mobile is indeed one page. But reading all the other
pages it still doesn't change my view.

The part you cite is about whether that claim is patentable at all in view of
the paper, it's unrelated to the prior art emails. If that is upheld it would
mean the person complaining here could not get a patent either. They've made
no determination that what is in the emails is relevant to anything that I can
see. It would also be par for the course since examination tends to take a
while.

~~~
allenz
> it's unrelated to the prior art... they've made no determination that what
> is in the emails is relevant to anything that I can see

Paragraph 6.1: "The author of D1 [Jarek] provided in January 2014 in an on-
line discussion forum information that would allow a skilled person to reach
the invention without having to apply any inventive skills."

Paragraph 6.2: "In particular, it has been proposed in the on-line discussion
forum to use ANS in video compression "like VP9" (D5)..."

The patent court is saying that Google's patent on ANS in video compression is
invalid in light of Jarek's prior art, exactly as Jarek claims. The report
cites Jarek's emails (documents D5 and D6) as prior art over and over.

~~~
DannyBee
You are confusing a whole bunch of things

(sorry, i can't edit my original response on mobile fast enough to correct a
few errors. I think you took the wrong thing away from the "unrelated to the
prior art" sentence).

1\. This is not a court :)

In fact, the rejection is specifically not binding.

"(1) The objective of the international preliminary examination is to
formulate a preliminary and non-binding opinion on the questions whether the
claimed invention appears to be novel, to involve an inventive step (to be
non-obvious), and to be industrially applicable."

2\. As i said, they are saying claim 1 is not inventive, regardless of those
references anyway. See 6.13.4

D1 is Jarek's original paper, a reference _Google_ gave, not Jarek.

You are right that they have a long discussion of these emails, but then
decide they don't matter anyway to claim 1 in 6.13.4. Perhaps you missed that.
They even explicitly say that D5/D6 do not matter in practice. The rest is
just random examiner prognostication.

You'll also see they are not cited in reference to any other claims.

Jarek (and the author's) claim was the emails are important and that he told
them what they patented. As you can see, the preliminary ruling was in fact,
that they are not really relevant or important to the patentability of the
claim. In this case, they so far have explicitly decided it would be
unpatentable regardless of whether he had ever sent the emails at all!

(The claim they are patenting ANS, i have no opinion on. I highlighted a
fairly small portion of the article i believe is shoddy reporting, and i still
believe that)

~~~
allenz
> I highlighted a fairly small portion of the article i believe is shoddy
> reporting

> Jarek (and the author's) claim was the emails are important

The claim is: "Duda says he suggested the exact technique Google is trying to
patent in a 2014 email exchange with Google engineers".

Which is true. Neither Jarek nor the reporter claim that these emails were the
_first_ instance of prior art. They emphasize the emails to show that Jarek
was working with Google engineers before they stole his work.

------
codetoliveby
But this is a bit of a dark area. Even if Google stopped pursuing the patent,
who is to say that someone else wouldn't?

~~~
mabbo
A court ruling against someone patenting this would strongly discourage anyone
else from trying.

~~~
mcny
Thank you. Sounds like a win win scenario for Google. If the courts decide
Google can't patent it, it probably means nobody else can either.

~~~
brisance
How is this a win-win scenario for Google? They’re attempting to do something
that is strictly against the interest of the inventor and abusing the patent
system in order to achieve a commerical advantage at the cost of the rest of
humanity. This is totally evil in my view.

~~~
tdb7893
Their main goal is to not get sued. As long as no one else is granted the
patent they probably won't be too unhappy.

As a large tech firm just not patenting anything doesn't seem practical given
the current patent law even if you don't plan on suing people for them. Once
you get a patent another company can't get a patent for the same thing (and if
they do it's easy to invalidate) and also the more patents you have the less
likely you are to be sued for patent infringement as you could always sue them
back for your patents.

~~~
amelius
> Their main goal is to not get sued.

So there's no practical way to demonstrate prior art without filing a patent?

~~~
mortehu
Your question suggests their goal is to win when sued. That can be expensive.
The goal is not to be sued in the first place.

~~~
x1798DE
Not sure why a patent is a better guard against a lawsuit than clear prior
art. If everyone knows you'll win if sued it doesn't matter if the reason you
would win is because you hold the patent or if you demonstrated prior art.

I think the actual advantage is "mutually assured destruction"; big companies
accumulate large patent portfolios so that they can (among other things) have
enough stuff patented that they have the option to counter sue or if they get
sued they can find some way that the suing company is violating something else
in their portfolio and threaten to sue over that.

~~~
cesarb
I live in a different jurisdiction, but based on what I've read on these
discussions in the Internet, it appears that in the USA the loser doesn't pay
the winner's court and lawyer costs. Having a stronger defense could allow the
court case to finish on an earlier step, saving a large amount of the costs.

------
DennisP
If he can prove he published it, then he should file his prior art with the
patent office. In fact, if he notifies Google of his prior art then Google is
obligated to tell the patent office about it.

~~~
DannyBee
He did, they include it as a reference, but haven't made any determination at
all

------
partycoder
If you watch "American Genius" (documentary show about inventors) you will see
how some of the most important inventors of the 20th century wasted decades of
their life in patent related litigations rather than working in more
inventions.

This stupid scent marking bullshit needs to stop.

------
leke
Google's new motto: Be Evil.

------
akeck
Isn’t it already published then?

~~~
seandougall
Yup. And if I had a nickel for every time a patent was granted despite the
existence of prior art...

~~~
delbel
did we switch from prior art to first to patent a few years back?

~~~
DennisP
We switched from "first to invent" to "first to file," but published prior art
still invalidates a patent.

The change just means that if two people try to patent something that they've
invented privately, then the one with priority is the one who filed first.

~~~
delbel
Oh ok thanks, I honestly got mixed up in concepts. Glad to clear this up.

------
eeZah7Ux
This is a reason for using [L]GPL: explicit patent protection.

[https://www.gnu.org/licenses/rms-why-
gplv3.en.html](https://www.gnu.org/licenses/rms-why-gplv3.en.html)

[https://fsfe.org/campaigns/gplv3/patents-and-
gplv3.en.html#E...](https://fsfe.org/campaigns/gplv3/patents-and-
gplv3.en.html#Explicit-patent-grant)

~~~
beefman
Had Duda released his code under GPLv3, he would have quit his own patent
claims, not prevented Google from asserting theirs.

In general, there is no way to prevent patent claims on your work other than
to defensively patent every conceivable application of it. That is why all
major corporations have large portfolios of such patents.

~~~
belorn
In theory one should not need to defensively patent anything that is published
openly since the patent office should not grant any patents for ideas which
has already been published. It is only if we accept that the patent office is
utterly broken and do not check for prior art that defensively patent every
conceivable application of public released work is a good idea.

------
Mrtierne
Doesn’t really fit into Google’s primary revenue streams so can’t imagine
that’s their motivation

------
basicplus2
It therefore fails the criteria to be Patentable..

If he informs the Patent Office, the Patent should be voided.

------
luord
If the patent is granted (unlikely), here's hoping they uphold that "don't be
evil" thing.

Oh, boy...

------
trhway
>A Google spokesperson told Ars that Duda came up with a theoretical concept
that isn't directly patentable, while Google's lawyers are seeking to patent a
specific application of that theory that reflects additional work by Google's
engineers.

and this is how you do it, children. You patent a straightforward
implementation and application ("additional work by engineers") of the idea,
and thus you effectively prevent anybody from _implementing_ and _applying_
the same idea while the idea itself is supposedly still patent-free (an
additional bonus is that you don't even have to pay to the author of the idea
:).

~~~
wb36
You can't patent an idea, only an implementation of an idea.

~~~
jjeaff
While that may technically he the case, the USPTO has allowed the
"application" of ideas to be so broad as to effectively be just a patent on
ideas.

There are a million different ways you could implement a "one click checkout"
yet the USPTO granted a "one click checkout" patent to Amazon. And countless
similar parents exist today. (podcast patent, online shopping cart patent, a
patent on making 'toast' and on and on)

~~~
jeffreyrogers
Having a patent doesn't mean the patent is valid. I think something like 50%
of patents are declared invalid during litigation. (This obviously doesn't
mean 50% of patents are invalid, since you probably don't go to trial unless
you think you have a reasonable chance of winning).

Plus, a lot of those software patents are not valid[0]. The validity of
software patents in general and what qualifies as patentable with regards to
software is still an open question.

[0]:
[https://en.wikipedia.org/wiki/Bilski_v._Kappos](https://en.wikipedia.org/wiki/Bilski_v._Kappos)

------
williamxd3
intellectual property shouldn't exist.

~~~
kankroc
Intellectual property done right puts bread on the table of many researchers
and engineers and is arguably a protection agains't direct Chinese theft.

That being said, Google is really turning into a monster at this point with
all their patents on random algorithms.

~~~
bgorman
If I take a Range Rover, reserse engineer it and sell it for a lower price who
is harmed? The society at large or a special interest group involved in the
manufacturing of the original Range Rover? If you want to make money off
manufacturing you should invest in novel things. Not things that rely on the
IP system to generate wealth for you. China is booming because they disregard
Western IP. IP is a construction that benefits wealthy countries for the
benefit of the wealthy.

------
baybal2
That was discussed on HN almost a year ago, with me being slapped either for
my use of colourful rhetorics, ... or possibly divulging on their
correspondence.

Basically things were like that: Google's side said something to the effect of
"you are free to sue us, if you can" and a colourful comment on his income
level. And after leaving a mail address of their attorney, they went
incommunicado.

------
gregatragenet3
The US used to have a great First-To-Invent patent system. It disappointingly
switched to First-To-File in 2013 and these patents you are seeing are the
result. With FTI Google could use the compression technique without filing
because if someone else later filed Google could show that they had reduced it
to practice first.

However with FTF, any technology Google might potentially use in the future,
they must file a patent for - this compression tech, or one of the DNN techs
they've recently developed. Otherwise they could start using the technology
and another company could copy the technology, file a patent, and be granted
the patent because of FTF. They could then pursue Google for patent
infringement.

In FTI they could develop and use tech without patenting it. in FTF they have
to patent it because if they don't they'll lose the ability to use the tech to
the first copycat who files.

FTF is just continuing the trend in the US of making it harder and harder for
IP to be in the public domain - moving more towards the privatization of IP.

~~~
dpark
This is not how FTF works. Prior art still trumps the patent filing.

~~~
jhall1468
Prior art is a legal defense. Patents are lawsuit prevention. Even with prior
art it's cheaper to just patent.

~~~
dpark
Sure. But it’s untrue that someone can simply file a patent for an existing
invention and effectively steal it from the inventor. Filing the patent can
minimize legal headaches, though.

(To the extent that a bad actor _can_ “steal” an invention, FTF vs FTI is
irrelevant.)

