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Inventor says Google is patenting work he put in the public domain (arstechnica.com)
644 points by buserror 10 months ago | hide | past | web | favorite | 205 comments

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.

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

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.

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.

A public disclosure by a first inventor prevents a later inventor from receiving a patent on the same invention. Even if that publication happened only one day before you file your application and you had no chance to be influenced by it at all, you will not get a patent (or it will be held invalid).

Saying that first-to-file means a non-inventor can lawfully obtain a patent is also wrong. It seems to imply that a new, non-obvious invention can only be made by one person at a time. This is not true in competitive industries where many people are working to solve the same problems and will often come up with the same new solutions independently. First-to-file encourages them to apply for their patents early.

There is such a thing as "public domain" inventing, as you call it. It is simply done by (1) inventing, (2) publishing, and (3) not applying for a patent.

False. A recent U.S. decision holds that such a disclosure must be well known to practitioners of the art, not just known to a few! Publication is no longer sufficient.

You do have to lie and say you thought of it independently; something impossible to disprove. The number of people who'd lie for big money is... innumerable.

You can patent ideas thousands of years old - if they're not well known to practitioners.

You're right that any publication will not be sufficient. A publication needs to be discoverable by the practitioners of the relevant art. However, it does not need to be well-known to them, nor does it need to be actually known by any of them. It only needs to be reasonably discoverable.

As for obtaining a patent by fraud, no comment.

Could you please link to this decision?

Absolutely. The first to file system greatly disadvantages individual and/or poorly funded inventors, because for big corporations, the cost to file is no great hurdle.

Flip side: first to file arose because first to invent is inherently ambiguous. The fixed cost of a filing was deemed better than the large and unknowable cost of determining who invented what when through the courts.

How does copyright handle that problem since copyright is automatic?

It doesn't matter who created a copyrighted work first, because independent creation is an absolute defense to copyright infringement.

Proof of independent creation might be; but similarity provides a statistical test of that. Cases use similarity and probability, they don't take "independent creators" at their word.

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.

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.

The extreme case of this being the patents over radio, only settled long after they had expired (tesla won, who died in povery, won.)

I agree with you, however, I think the difficult part is finding an entity capable of enforcing such a patent. I mean, we have things like the EFF or Apache foundation, but what organization could manage such a patent type? There would have to be enough trust in a granting body of such a patent, and it would need to be able to operate unencumbered for the global public good. I think this is an interesting problem worth solving though, if it can be.

Edit: this was an interesting related HN discussion - https://news.ycombinator.com/item?id=17240429

There are such things as defensive publications, which prevents others from patenting something by providing a publicized proof of prior art.

But most companies would rather just patent something.

Very hard to manage given that publication is no longer enough - the average practitioner has to be aware of that publication, or it doesn't count, according to a recent U.S. decision.

You can just publish your invention and how to make it if you want it to be part of the prior art. Then, in theory, the patent examiners should find it when examining patents. Of course, making sure they actually find the relevant prior art is part of the problem.

False. Publication is no longer enough, the prior art or publication has to be sufficiently well known to practitioners, now. Recent U.S. decision.

Do you have a source for this?

Isn’t this exactly just the job of licensing? With favourable licensing, it seems to me (IANAL) the patenting is just defence for us all, keeping a less-sharing third party from patenting and locking-down a process or implementation.

No. Patents grant a monopoly for a limited time and there is no compulsory licensing regime for patents. Many patent-owners do license their inventions, but others don't.

I think we’re saying the same thing. The licensing isn’t compulsory, but if ONE CHOOSES to license liberally, those are the terms of use. A benevolent actor could patent a thing, freely license, and head off another actor that would patent-and-lock-down.

It's not necessary to spend the money to obtain a patent in order to prevent others from patenting an invention. All you need to do is make the invention available by publishing it somewhere discoverable by the relevant public. The publication doesn't need to be in an academic journal either. A recent case found that a message on Usenet was sufficiently public because Usenet is organized hierarchically into newsgroups on various topics. A blog post would also probably suffice, so long as it's indexed by a search engine.

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.

Remember the fights against software patents in the early 2000s? How corporations said they needed them, and they would not be abused.

Fast forward 15 years and we see all fears have come true. Big corporations hoard software patents, which are used to stifle competition and extort money from companies using free software.

Worth keeping in mind when fighting for net neutrality and other issues where corporations make promises when trying to limit the freedom of the public.

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

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

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.

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.

> the author should have patented the idea, then freely licensed it

This is the brutal truth of how crappy our current patent mechanisms are. The definition of what constitutes a patentable extension to practice of ideas that are well known or explicitly in the public domain is very weak. So, until something is patented and actively protected by bulldog lawyers, there is a risk of someone else trying to umbrella it in their own patent. Google's move can even be justified on defensive grounds that some other jerks could do the same. But the core problem is an arms race to the bottom of what trivial distinctions can be claimed.

Having a patent doesn’t guarantee someone else will not patent the work as part of some other patent. Patent examiners miss things sometimes.

Publicly disclosing the idea in a way that can be verified after the fact establishes prior art just like filing a patent does.

I’m not a lawyer, but I do know there are services that inexpensively publish inventions and vouch for the publication date after the fact.

Also note that the vast majority of patent litigation never makes it to trial, so whether a patent is “valid” or not is a gray area in practice.

The problem is defending that disclosure as prior art when someone bigger claims a patent that improves or puts it into practice, which is exactly what this article is about. Even if you take a few steps to make patenting harder, if you invent something valuable it's eventually a game of chicken about preventing others from claiming the space.

> This is the brutal truth of how crappy our current patent mechanisms are.

Being granted a patent by the USPTO doesn't guarantee that the patent is actually valid. It's technically possible for them to grant identical patents to two separate people by mistake, and then the courts have to determine which one is valid.

The only solution to put an end to the current patent system is to overload it. The equivalent of a DDos attack. Companies should file as many frivolous patent as they possibly can. Eventually, we'll have all the IP lawyers at 100% CPU and the world will be a much better place.

100% CPU -> 100% billable hours -> IP law is now an incredibly attractive profession -> more capacity for patents / lawsuits... and that's essentially how we got here.

Exactly. They'll scale up horizontally by adding more and more instances until supply == demand, at which case we'll be really, really sad we followed this road.

Then we all stop at the same time, the market collapses and IP lawyers go extinct.

You'll have better luck herding cats.

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.

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...

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.

And that is why patents should be abolished, in a nutshell.

Software patents for sure. Not sure about algorithmn ones. Say you invent this exact compression algorithmn and want to patent it but you can't and Google steals it when you wanted to license it so you can fund a company that builds better compression algorithmns or whatever. Google is going to rip out of your profits.

What distinction do you make between software and algorithm patents? And how do you separate algorithms and unpatentable math?

The European notion of technical effect seems to work quite well.

Yes, in saying an idea is patented I was technically incorrect - in theory, an idea can't be patented, an invention is only patentable if it 'teaches' how to implement it. Nevertheless, what is patentable is still a lot more abstract that an actual implementation.

So we have:

idea > teachable invention > implementation

(where '>' is 'more abstract than')

The GP seemed to by conflating the invention and implementation, in asking what difference the licence of made. That was the distinction I was trying to draw. Duda put the invention in the public domain, not an implementation - it's not clear you can apply the MIT or Apache licenses to an invention at all.

The kernel of truth is that results can't be patented, but methods can be. But here Google doesn't seem to have added anything significant, and is copying a method, not just obtaining a similar result.

So - prior art is no longer good enough?

I was at Xerox when they were fighting a patent on their ideas. At that point in time all you had to do was prove prior art on the idea. Xerox used their notes during software development plus the code to prove prior art.

Similarly I was at Apple when they fought a basic patent on color matching. Apple succeeded in fighting the patent then proactively started patenting everything.

> The America Invents Act signed on September 16, 2011, switched U.S. right to the patent from the previous "first-to-invent" system to a "first-inventor-to-file" system for patent applications filed on or after March 16, 2013.


Thought it could be challenged as unconstitutional:

> Many legal scholars have commented that such a change would require a constitutional amendment. Article I, Section 8, Clause 8 of the US Constitution gives Congress the power to “promote the Progress of ... useful Arts, by securing for limited Times to ... Inventors the exclusive Right to their respective ... Discoveries.” These scholars argue that this clause specifically prohibits a first-inventor-to-file system because the term "inventor" refers to a person who has created something that has not existed before. (Wikipedia)

I certainly hope prior art is still good enough. The GP was asking whether the licence under which you publish your prior art should make a difference - I don't think it does.

> Granting a license to the code doesn't automatically prevent someone else from patenting the idea.

But doesn't the fact that the code has already been released mean it's prior art?

Correct me if I'm wrong, but I think the US patent office doesn't check for prior art (that was one of the cut backs several years ago) so instead prior art is now something that has to be challenged in court.

Or challenged before the patent is issued. The USPTO encourages this; fees for notifying them of prior art are much lower before issuance.

Wait a fee is imposed? I get why I think but if your posting of prior art proves to be true then you should have your fee refunded.

I'd have to check but if I remember right, before issuance there's no fee for less than 20 items of prior art, and just a flat $200 fee for more. After issuance I think the fee is $35,000.

so you have to pay them $35,000 to show a patent they issued is bullshit.


You are wrong, but code repositories aren't checked because that is a needle in a haystack situation.


> That is completely wrong.

That maybe true but without any more detail your comment is still unhelpful.

All right. The patent office does search for prior art.

Fair enough. When the Apple / Samsung countersues were all happening I thought I read on one news site that the US patent office had stopped checking for prior art. Which certainly did seem to be the case at that time too. But I cannot find that original article yet now finding other sources that agree with your statement so it seems they do check.

Thank you for the correction :)

Just publishing prior art, in a way that proves when you did it, is sufficient. It can still be a problem if you're not aware your idea is being patented, so the patent office doesn't find your prior art, but that's not an issue here.

There are also services where you can register your prior art, which say the USPTO uses them when evaluating claims; I don't know how useful they are in practice.

We (USA) and are a first to patent country now.


Yes but that just means if two inventors are working on something privately, the first to file gets priority, instead of the first to invent. Public prior art still invalidates the patent.

No, recent court decisions say public isn't enough - the invention has to have become fairly well known to practitioners of the art. Mere publication is nothing now.

Can you reference that? Recently I both consulted an attorney on this stuff, and did my own research, and that's the exactly opposite of what I've found.

You can't patent ideas only specific implementation of ideas.

The MIT License requires copies of the software to give attribution to the copyright holder, as well as the licence text.

Though it is a very permissive licence, this does pose some barrier to using the software. Some companies are averse to using software they need to provide attribution for, but would not mind using software that is in the public domain.

Releasing software to the public domain ensures that as many people as possible can make maximum use of it.

That's not to say it's better to release software to the public domain over using a permissive licence. It really depends on the terms under which the developer wants people to use the software.

Licensing is not that simple. From the Creative Commons CC0 page.

"Dedicating works to the public domain is difficult if not impossible for those wanting to contribute their works for public use before applicable copyright or database protection terms expire. Few if any jurisdictions have a process for doing so easily and reliably. Laws vary from jurisdiction to jurisdiction as to what rights are automatically granted and how and when they expire or may be voluntarily relinquished. More challenging yet, many legal systems effectively prohibit any attempt by these owners to surrender rights automatically conferred by law, particularly moral rights, even when the author wishing to do so is well informed and resolute about doing so and contributing their work to the public domain."[1]

As an aside, I have no sympathy for companies that would refuse to use software licensed under MIT because they need to provide attribution.

[1] https://creativecommons.org/share-your-work/public-domain/cc...

I don't see people dropping sqlite en masse.

I'm not sure how to interpret this comment.

If you're making a reference to SQLite being in the Public Domain, there's a page on SQLite's website for organizations to purchase a Warranty of Title, which shows organizations can be skittish about anything.[1]

Are you referring to a program that is being dropped because it's not in the Public Domain? If so, I am for an example. As a potential counterexample, I am not aware of a drop of usage on, say, cURL, which is widely distributed by countless organizations and which uses the MIT license.

[1] https://www.sqlite.org/copyright.html

> Some companies are averse to using software they need to provide attribution for

why would that be? They certainly already need to put in a license page/dialog/display somewhere, so it makes so little difference adding an extra piece of text there.

Perhaps because it can be error-prone to keep attributions together with the thing requiring attribution.

This is certainly an issue with things like photos and Creative Commons. Anyone who uses CC-BY-SA photos in presentations knows very well that, as photos get reused and mixed in different presentations, it's very easy to end up dropping a credit somewhere. I know I try hard not to do so, but I'm sure I still miss things from time to time.

I explicitly put some code samples under CC0 because I want people to feel complete freedom to copy and paste the code without needing to maintain attribution or worry about licensing compatibility.

For example: https://jsfiddle.net/rectang/fwto2ejh/

The CC0 dedication is at the bottom; you have to scroll to it.

I chose to slightly modify the CC0 dedication for this to comport with the fact that you won't receive a copy of CC0 with the materials. I didn't like having to do that and wish that Creative Commons would provide an official accommodation. I'm reasonably confident that my change won't materially affect a future court case over my code though. :)

ETA: I strongly recommend that other people DO NOT change dedications. I'm reasonably educated on these topics for a layperson, but not a lawyer. I mentioned the change as a warning that my dedication should not be considered a CC-approved template.

Can you elaborate on why this is advantageous to the situation in the article?

For the purpose of establishing prior art, it is not advantageous at all in comparison. The article talks about how patent examiners have limited resources and tend to rely on searching the patent database to find prior art. Putting something on the internet with a CC0 dedication is not going to make it any more visible to them.

I'm confident that there are no patentable ideas in my code and my purpose is just to minimize the burden on downstream users of copyright licensing.

If there were patented ideas in my code that I wished to license to downstream users, CC0 would actually be a poor choice, because it explicitly excludes a patent grant. That's why CC0 is not endorsed by OSI, and there's been a lot of hand-wringing over that clause.

Note that if you do copy/paste public domain code into a non-trivial project, you still should record its origins in version control at least -- even if the license doesn't require attribution.

FWIW: Email is a crappy medium for prior art.

Most emails rarely delve into the how to actually do something, most stop at suggestions of things to try.

If i email you a problem, and you email me "you should try a hashtable", and then i reduce the problem to practice using a hashtable, i will likely still be able to patent it. It depends on the country/details, but yeah.

At best, you may or may not be named co-inventor.

(Even here, you can see that one of the arguments the examiner has to make is that it would be obvious how to implement the suggestion. This is because if it wasn't true, it would still be patentable)

Code is a better medium, but there is no way for most patent offices to understand what code does.

But i would never rely on issues and emails being a good medium for prior art.

You'd really need a design doc and reference impl if you want it to be considered for real.

Because it's algorithm and not code.

How about an “On the record” public domain dedication where dates, code, issues, wiki, etc are a matter of public record and establish legal grounds of prior art for countering patent issues like this?

I remember reading that IBM once did just that. I think they submitted something to the US Patent Office, but I cannot remember the reference. Might have been in the 360 days.

Yes - Technical Disclosure Bulletins[0]

-- [0] https://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bulle...

Yes, it's called 'defensive publishing'.

There are plenty of countries that don't have a public domain, or different patent laws, or ....

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.

Faulty society constructs break down one way or another. This is very clear sign of rotten stuff underneath. I.e.: The system sucks, man.

The fundamental problem with defensive patents is that you have to do more than merely trust the patent holder's current management. You have to trust the next 20 years of the patent holder's management.

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?

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.

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

Oh, yes, definitely meant that, thanks!

Read this reaction from xiphmont: https://xiphmont.dreamwidth.org/84214.html

It paints a quite different picture.

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.

Not useless, just not as good as Jarek liked to claim. It's a neat technique but hardly a breakthrough. In the end, for AV1, Daala_EC was better.

As for 'needed a defensive patent', need is the wrong word. In the current patent game, you pile up defensive patents to be used in aggregate as part of a MAD-style game. It sounds insane and it is-- but it's also currently the least insane option.

In any case, Google isn't technically in the wrong here. They're not patenting jarek's work, they're patenting improvements they made to it that were necessary to use it in AV1, which they dedicated engineers to do because Jarek declined to do it himself. Only after Google put in that work (and implemented multiple suggested improvements on top of it to try to bring its performance up) could we even measure the results.

But just because Google isn't wrong, doesn't mean they weren't assholes. Having negotiated with them for things in the past, they will promise the moon and the sun and the sky, and commit only to the parts that get them what they want. I can fully believe they verbally promised Jarek far more than he got.

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.

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

> "the performance claims just don't hold up"

see now the fatcs in https://sites.google.com/site/powturbo/entropy-coder and how rANS based entropy coder outperforms the current AOMedia AV1 entropy coder by 7 times.

Put it in AV1 and it doesn't.

The entropy coder in AV1 right now is Daala_EC. It's the entropy coder because we measured it directly against rANS and the other candidate encoders and it performed the best.

Hell, you can check out the code, build with the different entropy coders, and test it yourself.

Already done. The claims are not based on speculations, but on numbers coming from verifiable benchmarks with "https://github.com/powturbo/TurboBench" including the Daala_EC and the AOM AV1 entropy coder.

> So my action item for Jarek is: ... Find a friend with a big bag of weed, and take a few days off.

It's not just condescending, it's simply offensive.

Because Jarek is frankly out of line, and I see no reason to sugarcoat it.

Google pissed him off (and I'm sure he has reason to be pissed) but he's not exactly being truthful about what happened, or what is happening.

Being angry at Big Bad Company for a good reason does not give an engineer license to bend the truth any damn way he feels, and it certainly doesn't give license to just make shit up. He's lost some of my respect for a good reason, and if an Avengers reference offends him (or you) it's not my problem.

I see nothing substantive in the post you linked to. Can you clarify why you think it “paints a quite different picture”?

What is this? Is xiphmont a Google or Mozilla employee who works on AV1? He's wildly unprofessional, especially all the profanity and the advice to smoke a bag of weed.

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.

Blue prints are absolutely covered by copyright.

I think that’s what they meant. See “only.”

I mistyped, I wanted to say, that you can create your own blueprints by studying a machine. But when your invention is patented this implementation is protected. But in software it is not about the implementation (because that's already protected via copyright) it is about the idea behind the implementation. Which even prohibits different implementations.

Do you mean the "only" that's followed by "not by copyright?"

Yes, an almost universal trait of human languages is that they include redundancies for error correction. Reread the post the OP is replying to and then read the OP’s comment.

Thanks, Sheldon.

Seriously, let me know if I can help you understand—I’m not sure why you are getting so upset about this.

I apologize if I’ve somehow got you on a bad day and if this is not your usual self.

Can you explain further, that doesn't make sense.

I think the idea is that the blueprint’s copywrite doesn’t give sufficient protection to keep someone from using the invention (since they can reverse-engineer based on the actual machine). Only a patent can actually protect in this case.

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

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.

It can be a kind of gray area.

Leonardo da Vinci had the idea of a human powered flying machine. I pretty sure nobody would say that his sketches are an invention. On a second thought, there are so many people around, probably somebody would claim it.


The South Hampton University eventually made it happen centuries later in 1961.


Did they invent it or "just" built it? Probably they could patent parts of the final airplane. I didn't check if they did.

An invention is an actual thing that implements the idea.

"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.

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.

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.

> 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.

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)

> 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.

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?

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

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.

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.

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.

> Their main goal is to not get sued.

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

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.

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.

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.

It's not the only way to get prior art but prior art isn't the only reason a tech company wants to try to get patents so I'm a little unclear on your point.

So we are going to have to rely on the goodwill of Google not to sue others if they are awarded the patent? How about being a good corporate citizen like the others and not trying to patent it in the first place?

Corporations do not act with goodwill, and those that do are often not successful corporations for long, as others take advantage of them. Remember that every time you see a corporation seemingly acting selflessly, either you don't realize how it benefits them, or its just a public relations play. But corporations always act in self-interest.

You act like self-interest is black and white. Oracle persues profit at any expense, often via lawsuits. Google uses patents as a defense mechanism against other companies. Both are self-interest, but very different degrees.

Google isn't persuing profit via lawsuits... yet. Google is well positioned to patent troll when it stops being the top dog. In fact, Google already has Patent Shield, which provides a latent threat that if you leave their umbrella they can turn around and sue a company that used to use their services.

Even if you have unwavering faith in a company's current leadership, when that leadership is not making money, they will be replaced by someone who is. So if the possibility to patent troll exists, eventually, it will.

Fwiw, at least with google this is debatable, since the company is, for the purposes of voting stake, held by the leadership.

So the only people who could replace the leadership...are the leadership.

There's an argument that institutional investors can still influence mostly privately held firms, but I'm not sure how much I buy that in this case.

> Google isn't persuing profit via lawsuits... yet. Google is well positioned to patent troll when it stops being the top dog. In fact, Google already has Patent Shield, which provides a latent threat that if you leave their umbrella they can turn around and sue a company that used to use their services.

Slippery slope much?

> profit at any expense

Redundant definition of profit?

Short-term and long-term profit are not driven by the same goals. In fact, they are often at odds. I get the joke, but it's not really redundant. "Profit at any expense" sounds like short-term profit to me.

I guess you want to highlight that the company is owned mostly by a charitable foundation ( https://en.wikipedia.org/wiki/Robert_Bosch_GmbH#Corporate_af... ), but I think it's important to realize that the company itself still operates as a profit maximizer for its shareholders. You only need to scroll down to the section about their involvement in the Volkswagen emissions scandal for proof of that.

While one of Bosch’s units was involved in dieselgate, on the whole their business has been for the betterment of humanity.

The point is that a company doesn’t have to always “maximize profits”. Tim Cook famously told a shareholder to “get out of the stock” if that was how he assessed his portfolio. https://www.independent.co.uk/life-style/gadgets-and-tech/ne...

It also provides a great "retirement plan" for your company's business model: When people stop buying your products you can hold your patents over the other tech companies.

Google may simply want the patent to prevent someone like MPEG LA getting one. I suspect they really want it to prevent MPEG LA from using the technique in a codec though. Or perhaps Google employees are simply chasing the incentives to get patents.

If MPEG LA tries to patent it then they’d have to go through the same process. But they haven’t so why is Google trying to be a smartass and directly challenge the inventor, when it was him who gave them the idea in the first place? The most charitable thing to say is that they’re naïve but given how they’ve also considered working with the US government on drones to kill people I think they’ve really strayed from trying to “organize the world’s information”.

If Google wins, they have the patent on this implementation. If Google loses, no one can have the patent. Either way, Google isn't paying anyone else to do this.

Key words: "for google".

it is exactly a "win-win" for Google, as described above, because fairness and respect to an individual author are not included in the decision at all. It is money and the legal context of money, that is described in "win-win" and as you rightly point out, this creates miserable results from a humanist point of view.

What's missing in this win-win equation is Google's image. It's another instance of Google getting lots of negative press, where they are portrayed as the bad guys. So whatever the patent outcome, with respect to their image, Google is certainly not winning.

Unless they wrote their claims differently.

Is there a form of theft that can't be justified with that sentence?

"If the USA didn't take land from the Native Americans, who is to say that someone else wouldn't?"

The patent application and its prosecution history become public knowledge, hence prior art against any further attempt to patent the same thing.

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.

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

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.

Google's new motto: Be Evil.

Isn’t it already published then?

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

I feel like many of these patents start with the idea 'if I had a nickel every time...'

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

The switch was from "first to invent" to "first to file". Prior art is still prior art, just the same in both types of "filings".

The "first to file" setup changed some of the critical date ranges around slightly that determine under what statute clause any given publication (i.e. prior art) may be used, but did not change the fact that a prior publication effects the patenting of a later application.

Now, getting that prior publication in the hands of the patent offices so they can utilize it to effect a later application, that is the hard part. Esp. if that prior publication was not somewhere big and well known (i.e., a personal blog would be a prior publication, but it is doubtful any of the patent offices would discover the personal blog on their own).

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.

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

Only if the publication/art is rather well known to practioners. Mere publication is ignored now.

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.

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.

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

It therefore fails the criteria to be Patentable..

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

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

Oh, boy...

>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 :).

They really haven't. If you read the claims, they are covering swapping out a Huffman entropy encoder with Duda's. They narrowed it to only apply to their codecs, but they shouldn't be able to cover that usage of it at all. The whole point is to swap out for other entropy encoders. It is a 100% obvious usage of a new entropy encoder. It is an almost completely modular piece of a compression system.

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

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)

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

A meaningful idea in software engineering at least is, in many many cases, an algorithm (until we're talking about ideas like "lets make the best compression") Straightforward implementation of the algorithm in say C is hardly a novel thing on it's own. So what is patentable here as an implementation, and what - isn't as an idea? (Note: I do have several crappy ideas software patents myself :)

But I think the point is that if there is really only one viable implementation of an idea, they’re effectively patenting the idea via the implementation.

I'm trying to wrap my head around your distinction - is pseudo code that demonstrates Quicksort different than an actual implementation of it in, say, C, C++, Python?

How about where the line's even thinner - Amazon's infamous 'one click purchase' 'algorithm' - which they managed to patent - would you call that an 'idea'? An 'implementation'? A 'process'?

I think anything, including ideas can be patented - and if Google is trying to go by the spirit of the law rather than being Pharisaic about it, they need to cut this guy in for a percentage of the patent of his idea, rather than shafting him because they can.

He doesn't want money, he wants his work to be in the public domain.

Implementations are ideas too.

The distinction does not make sense.

Aren't drugs patents ideas and not implementations?

Generally, drug patents list the molecular structure, chemical formula, and specific method which they utilize to arrive at the finished product.

If a drug patent hasn't passed phase 3 trials isn't it just an idea?

Clinical trials and regulatory approval are independent of the patent process. This should make sense because a patent is a right to exclude others, not a right to do something. For example, just because you have a patent on a new drug doesn't mean you can actually sell it to patients.

You don't have to have a physically working thing to patent it. You can patent something that's just an "idea" as long as the idea is physically realizable. Ideally the patent examiner knows enough about the field that patent is in to decide whether something is likely to work in practice or whether it is just some bogus invention that has no chance of working.

intellectual property shouldn't exist.

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.

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.

Those are two terrible arguments.

> Intellectual property done right puts bread on the table of many researchers and engineers

The same can be said for any number of things; just because you can make money doing it does not mean it is defensible to do it simply because of that reason. It is a non-argument.

> and is arguably a protection agains't direct Chinese theft.

That is called begging the question. If intellectual property did not exist, “theft” would not be theft, and nobody would create a business which would depend on it existing.

Is that an opinion, or a peer-reviewed scientific conclusion? Just curious.

>protection agains't direct Chinese theft.

Man........... A detailed patent with blueprints is like a call for action for an average broke and desperate factory owner

Usually included in the grab-bag term “Intellectual property” is trademarks, which as far as I know is mostly benign and exists to protect consumers from being deceived with fake products.

I'm not always a fan of Stallman's terminological dogma, but here I am.

Someone says intellectual property shouldn't exist. We have no idea whether they mean that software patents shouldn't exist, all patents, or even all the various laws and precedent around the not-very-related concepts like copyright, patents (or perhaps just software patents), and trademarks.

You respond with a potential benefit of one domain which is either a subset of the term the OP used, or is orthogonal because the OP was only talking about software patents, or perhaps software patents and copyright, etc.

Now the OP must respond simply to explain what was meant by intellectual property in the first place.

If instead OP had imagined RMS rudely interrupting them to complain that "intellectual property" is a poor term because it brings together many areas of law that are not related, OP would have ended up with a clearer statement with 60% fewer posts here.

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.

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.

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

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

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.)

Only if well known. Recent decisions in U.S. courts.

Prior art has to be well known? Please tell me what court said that.

I have in mind a case noted by the ipwatchdog site, I believe. The following isn't the case I had in mind, which was more extreme still, and much more recent, but here's a start:

A reference “is ‘publicly accessible’ upon a satisfactory showing that [the reference] has been disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art exercising reasonable diligence, can locate it.” Bruckelmyer v. Ground Heaters, Inc., 445 F.3d 1374, 1378 (Fed. Cir. 2006). … For instance, in Electronic Frontier Foundation, the Board determined that when a reference was only temporarily publicly available via a URL but no longer exists at that URL, the petitioner must show that the reference can be found through another source not including the URL. Electronic Frontier Foundation v. Personal Audio, LLC, IPR2014-00070, Paper 21 at 22 (PTAB Apr. 18, 2014) (Decision, Institution of Inter Partes Review).


[Note that the information being up somewhere where most people wouldn't be able to find easily enough doesn't suffice. "Reasonable diligence" isn't defined, but clearly isn't intended as a high bar.]

Printed publications can be an exception - but both those words are highly subject to interpretation.

Sure. Essentially the courts are affirming that the system is “first to file” and not “first to invent”. You cannot quietly invent something and then claim ownership after someone else patents the same idea. If prior art could be private, then the system would still be de facto “first to invent”.

How well known something must be is obviously going to be subject to interpretation. If you tell your co-worker at the bar, that’s probably not sufficient. If you publish on your blog that no one knows about, that’s probably also not sufficient. If you publish in a journal, that probably is more than sufficient. If you cannot reasonably claim that the other inventor should have been able to find your prior art, then the courts will rule against you.

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