5/25/2015

05-25-15 - The Anti-Patent Patent Pool

The idea of the Anti-Patent Patent Pool is to destroy the system using the system.

The Anti-Patent Patent Pool is an independent patent licensing organization. (Hence APPP)

One option would be to just allow anyone to use those patents free of charge.

A more aggressive option would be a viral licensing model. (like the GPL, which has completely failed, so hey, maybe not). The idea of the viral licensing model is like this :

Anyone who owns no patents may use any patent in the APPP for free (if you currently own patents, you may donate them to the APPP).

If you wish to own patents, then you must pay a fee to license from the APPP. That fee is used to fund the APPP's activities, the most expensive being legal defense of its own patents, and legal attacks on other patents that it deems to be illegal or too broad.

(* = we'd have to be aggressive about going after companies that make a subsidiary to use APPP patents while still owning patents in the parent corporation)

The tipping point for the APPP would be to get a few patents that are important enough that major players need to either join the APPP (donate all their patents) or pay a large license.

The APPP provides a way for people who want their work to be free to ensure that it is free. In the current system this is hard to do without owning a patent, and owning a patent and enforcing it is hard to do without money.

The APPP pro-actively watches all patent submissions and objects to ones that cover prior art, are obvious and trivial, or excessively broad. It greatly reduces the issuance of junk patents, and fights ones that are mistakenly issued. (the APPP maintains a public list of patents that it believes to be junk, which it will help you fight if you choose to use the covered algorithms). (Obviously some of these activities have to be phased in over time as the APPP gets more money).

The APPP provides a way for small companies and individuals that cannot afford the lawyers to defend their work to be protected. When some evil behemoth tries to stop you from using algorithms that you believe you have a legal right to, rather than fight it yourself, you simply donate your work to the APPP and they fight for you.

Anyone who simply wants to ensure that they can use their own inventions could use the APPP.

Once the APPP has enough money, we would employ a staff of patent writers. They would take idea donations from the groundswell of developers, open-source coders, hobbyists. Describe your idea, the patent writer would make it all formal and go through the whole process. This would let us tap into where the ideas are really happening, all the millions of coders that don't have the time or money to pursue getting patents on their own.

In the current system, if you just want to keep your idea free, you have to constantly keep an eye on all patent submissions to make sure noone is slipping in and patenting it. It's ridiculous. Really the only safe thing to do is to go ahead and patent it yourself and then donate it to the APPP. (the problem is if you let them get the patent, even if it's bogus it may be expensive to fight, and what's worse is it creates a situation where your idea has a nasty asterisk on it - oh, there's this patent that covers this idea, but we believe that patent to be invalid so we claim this idea is still public domain. That's a nasty situation that will scare off lots of users.)

Some previous posts :

cbloom rants 02-10-09 - How to fight patents
cbloom rants 12-07-10 - Patents
cbloom rants 04-27-11 - Things we need
cbloom rants 05-19-11 - Nathan Myhrvold


Some notes :

1. I am not interested in debating whether patents are good or not. I am interested in providing a mechanism for those of us who hate patents to pursue our software and algorithm development in a reasonable way.

2. If you are thinking about the patent or not argument, I encourage you to think not of some ideal theoretical argument, but rather the realities of the situation. I see this on both sides of the fence; those who are pro-patent because it "protects inventors" but choose to ignore the reality of the ridiculous patent system, and those on the anti-patent side who believe patents are evil and they won't touch them, even though that may be the best way to keep free ideas free.

3. I believe part of the problem with the anti-patent movement is that we are all too fixated on details of our idealism. Everybody has slightly different ideas of how it should be, so the movement fractures and can't agree on a unified thrust. We need to compromise. We need to coordinate. We need to just settle on something that is a reasonable solution; perhaps not the ideal that you would want, but some change is better than no change. (of course the other part of the problem is we are mostly selfish and lazy)

4. Basically I think that something like the "defensive patent license" is a good idea as a way to make sure your own inventions stay free. It's the safest way (as opposed to not patenting), and in the long run it's the least work and maintenance. Instead of constantly fighting and keeping aware of attempts to patent your idea, you just patent it yourself, do the work up front and then know it's safe long term. But it doesn't go far enough. Once you have that patent you can use it as a wedge to open up more ideas that should be free. That patent is leverage, against all the other evil. That's where the APPP comes in. Just making your one idea free is not enough, because on the other side there is massive machinery that's constantly trying to patent every trivial idea they can think of.

5. What we need is for the APPP to get enough money so that it can be stuffing a deluge of trivial patents down the patent office's throat, to head off all the crap coming from "Intellectual Ventures" and its many brothers. We need to be getting at least as many patents as them and making them all free under the APPP.


Some links :

en.swpat.org - The Software Patents Wiki
Patent Absurdity � How software patents broke the system
Home defensivepatentlicense
FOSS Patents U.S. patent reform movement lacks strategic leadership, fails to leverage the Internet
PUBPAT Home

9 comments:

Fabian 'ryg' Giesen said...

Okay, here are a couple more pragmatic issues with this:

1. Obtaining a patent, especially a SW patent, in the first place is a costly process in both time and money. Expect to spend somewhere south of $15k and over a week writing one down.
2. Which means that seeding the APPP with even just a hundred such patents is quite a substantial initial investment with uncertain results.
3. It also means that in donating patents to the pool, you're asking companies to write off a lot of money, which is not a good sale.
4. The goal of having a large patent "war chest" as a strategic investment is, usually, mutually assured destruction: somebody sues you over a patent violation, you sue them right back for violating some of your broader patents, then everybody settles out of court for a reasonable licensing fee. You would have to explain to me in detail how this process would work with the APPP in the middle, and why any company would donate their patents giving the likely extra complications this is going to cause.
5. Part of the perversity of the current system is that the kind of patents you would prefer in the APPP - detailed and narrowly scoped - are precisely those least likely to make other "players" worried about it in the first place. See the "workflow" above.
6. In particular, I'm not sure I buy the assumption that having a few "key patents" for really important algorithmic inventions would make a big difference. As far as I can tell, what actually wins patent lawsuits is large collections of nebulous patents. If you get to the stage where you have lawyers worrying about the details of whether a particular patent is relevant or not, you're already bleeding money, so you generally try not to let things get that far.

cbloom said...


1&2. Yes, the initial seeding is an issue. However I don't think it's really so dire. What you'd do is write op-ed pieces, do radio shows, get attention, try to get charitable funding. It only really takes one rich person who believes in the cause, or a good patreon-type drive. Raising $2M to fund the first 100 patents is a pretty small amount.

3. The APPP is looking for donations from companies that are not interested in profiting from their patents, due to their beliefs. The $20k patent cost is negligible for any company. In return the APPP provides legal defense (once the war chest is accumulated) which is worth a huge amount of security to the companies that donate.

4. The APPP provides a much larger war chest that you use by proxy. Some big company sues you for using some nonsense that you claim. The APPP acts as your representative. They counter-sue the company, claiming violation of many APPP patents. Instead of your one trivial patent that the company could easily ignore,
the APPP has lots that they are worried about, so they settle. A small company on its own basically has no standing here; by many of them acting together through the APPP their ability to force cross-licensing is greatly magnified.

5. Why does the APPP prefer detailed and narrowly scoped? The APPP just wants everything. It wants to be the Borg of patents and gobble up all it can. Legitimate or bullshit. Use the fucked up system to patent every trivial thing you can think of.

6. I was think of the MPEG-LA or the RIM/NTP where you manage to patent a base technology that covers someone's core business, so that they have really no choice but to settle. But yeah, the swarm of bees model of lots of tiny patents works too.

cbloom said...

Basically your #4 is the major power of the APPP.

Without the APPP, small company patents some idea. Big company sues them for a bunch of patent infringements. Small company can't do anything and folds.

With the APPP, small company patents idea and donates it to the APPP. Big company sues small company for a bunch of patent infringements. APPP counter-sues for violation of a bunch of APPP patents. Suit is settled (*).

(* granted details of this settlement are a big vague in my mind)

In a way it provides a co-op so that all the individuals and small companies can pool their IP to fight the behemoths.

Fabian Giesen said...

Re #5: you said in the original post:

"The APPP pro-actively watches all patent submissions and objects to ones that cover prior art, are obvious and trivial, or excessively broad. It greatly reduces the issuance of junk patents."

vs.

"The APPP just wants everything. It wants to be the Borg of patents and gobble up all it can. Legitimate or bullshit. Use the fucked up system to patent every trivial thing you can think of."

now which one is it? I'm confused.

Fabian Giesen said...

Re #4:

So the scenario you're thinking about is the "IBM vs. Sun" kind of deal: big company with patent war-chest extorts money from a smaller company. I can see this working in principle, although I'd want to know a few more details before I got patents and assigned them over, but let's suppose there's a credible way to make this scenario work.

What do you do if a "non-practicing entity" (patent troll) sues you? What is the APPP gonna counter-sue them with? They're not engaging in anything other than litigation!

What does this do about the MPEG-LA type of model? There's a bunch of patents on the specifics of $thing, and you need to do $thing because it's part of an open standard that you need to support - various possible reasons: for inter-op with existing software, because you're on a government (or similar) contract that requires standards compliance, because it's actually the best available thing at doing what you need, whatever. They're not gonna sue you, not if they can avoid it. They just want their cut. How does the APPP help at all here? How does it prevent people from encircling a whole general area with patents so that anyone who steps over the line has to pay?

cbloom said...

It's quite intentional that the APPP tries to stop others from getting junk patents, but is happy to get them itself.

A lesser goal is build its war chest of patents. The greater goal is that by getting junk patents yourself, you stop others from getting them, and build a bunch of documented prior art that you can use to stop future junk patents. (hey, you can't patent addition, we already did).

It's my intention that the APPP does NOT try to be holier than thou and above the morals of the system, blah blah. We use the broken system to bring down the system. We aren't going to play clean when everyone else is fighting dirty.

Perhaps the original post should say "It greatly reduces the issuance of junk patents (to anyone but the APPP)."

cbloom said...

> What do you do if a "non-practicing entity" (patent troll) sues you?

Right, the cross-licensing doesn't apply here. My idea is that once the APPP has enough money, it can act sort of like an ACLU for patent defense. When you're picked on by a troll, you can ask the APPP for help, and if your case looks good, we'll take it on and try to challenge that patent. The eventual goal being to create a new attitude about trolls and build a momentum for standing up to them.

> What does this do about the MPEG-LA type of model? There's a bunch of patents on the specifics of $thing, and you need to do $thing because it's part of an open standard that you need to support

I'm not sure the APPP can do much about this. I mean I have some far-fetched ideas but no. The problem here is just that we allow these patented standards to be created and popularized.

Fighting that is mainly about having patent-free alternatives, and about building the public desire to stay away from the patented standards.

One thing the APPP could be involved in is fighting the generalization of MPEG-LA type patents. Like you can patent your specific encoding scheme, fine, we can't stop that. But the more generic interpretations like "any mocomp + huff is patented" we would fight.

Arseny Kapoulkine said...

Is filing a patent to protect a free idea better than writing a freely available publication? Publication should count as prior art, right? (I guess you could dispute anything in court - including a previously filed patent though...)

Fabian 'ryg' Giesen said...

As far as I can tell, neither patenting *nor* publishing actually works that well at preventing stuff from being patented.

Patent examiners (and patent attorneys) find related patents using a keyword search. It's easy to describe the same technique in different words so that two instances of the same idea are very hard to identify that way, and it doesn't help that the legalese patents are written in makes it even harder to check if two patents describe the same thing than it would be otherwise. (And it can be *really* hard even with the best notation, if two people happened to arrive at the same core idea in two different ways.)

In patent litigation, it is rare for anyone to go for prior art. There are numerous reasons.

One is that trying to overturn a patent on prior art grounds after it's been granted is hard. You have to prove that every single claim in it has been described by someone else before. If that description is in a patent or scholarly journal, your chances are good; other sources, less so. Either way, doing this requires a lot of time and effort for every claim you want to dispute, and if there's a single original claim left in the patent, the patent itself will not go away. (Although the non-original claims may get stricken.)

The more important point is, "are we actually in violation of this patent"? Patents are written in legalese :), and it can be pretty hard to figure out what they actually do (or do not) claim. Some claims are excessively broad, but if you find claims that you're definitely not in violation of, you can throw out large parts of the patent (everything dependent on those claims) and focus your efforts elsewhere.

It is usually much easier to prove that a particularly-worded claim does not apply to you, even on some minor technicality, than it is to prove that a claim is invalid. Prior art is a last-ditch effort; you only go there once you are pretty sure that you are in fact in violation of specific claims, and then you try to find prior art for those if you're sure they are not original. (Or, more typically, you just pay up.)

It is quite rare for patent lawsuits to actually go before court. Taking it that far is a large money and time sink, and neither plaintiffs nor defendants usually want to risk it. Defendants usually can't afford the cost of a prolonged legal battle, so they really have no choice. It's usually a couple of salvos fired between lawyers, followed by a quiet settlement.

Worrying about prior art and the exact details of patents and what they cover is a very engineer-y thing to do. As far as I can tell (and that might just be me being cynical), nobody else cares. You don't actually get patents to cover some Very Important Inventions that are the backbone of your business. That's the popular narrative, but that's not what happens. In reality, companies just collect patents like crazy hoarders and throw them around in large packs: quantity not quality.

Then in the media, you'll see mention of the MS patent on FAT, and engineers will get upset because FAT is such a stupid thing to patent, but it's not like somebody went "let's sue them over FAT, FAT is our core tech". MS slapped someone else with 100 patent violations, probably three quarters of which were totally bogus and easily defused, and FAT happened to be the silliest one of those that stuck. Could have easily been something else.

old rants