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.
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.
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.
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.
As for obtaining a patent by fraud, no comment.
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.
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.
Edit: this was an interesting related HN discussion - https://news.ycombinator.com/item?id=17240429
But most companies would rather just patent something.
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.
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.
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.
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.
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.
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.
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.
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.
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)
But doesn't the fact that the code has already been released mean it's prior art?
That maybe true but without any more detail your comment is still unhelpful.
Thank you for the correction :)
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.
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.
"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."
As an aside, I have no sympathy for companies that would refuse to use software licensed under MIT because they need to provide attribution.
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.
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.
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.
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.
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.
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.
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.
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.
It paints a quite different picture.
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.
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.
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.
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.
It's not just condescending, it's simply offensive.
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 apologize if I’ve somehow got you on a bad day and if this is not your usual self.
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.
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.
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.
> 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 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.
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.
(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)
> 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.
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.
So there's no practical way to demonstrate prior art without filing a patent?
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.
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.
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.
Slippery slope much?
Redundant definition of profit?
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...
"If the USA didn't take land from the Native Americans, who is to say that someone else wouldn't?"
This stupid scent marking bullshit needs to stop.
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).
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.
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.
If he informs the Patent Office, the Patent should be voided.
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 :).
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)
Plus, a lot of those software patents are not valid. The validity of software patents in general and what qualifies as patentable with regards to software is still an open question.
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.
The distinction does not make sense.
That being said, Google is really turning into a monster at this point with all their patents on random algorithms.
> 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.
Man........... A detailed patent with blueprints is like a call for action for an average broke and desperate factory owner
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.
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.
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.
(To the extent that a bad actor can “steal” an invention, FTF vs FTI is irrelevant.)
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.
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.