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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Monday, March 14, 2005FOSS and the Patent System: Paradox Side Effects of Anti-Patent Networking.Working on product-specific patent clearance opinions is always a difficult matter. Even for a Patent Attorney, and so not only with regard to computer-implemented inventions but also concerning other fields of technology. In pure theory, a product clearance looks to be quite trivial: Just go through all existing patents in force and check whether or not the product infringes. But, of course, in practice this complete enumeration method scales poorly and you need to find good heuristics in order to discriminate classes of patents worth a closer look from other classes of patents which can be disregarded right from the beginning. In most cases, due to financial constraints, such opinions have to be restricted to the analysis of just a couple of potentially relevant patents from well-known competitors or so.In particular the Free and Open Source (FOSS) community is afraid of accidentally violating third party's patents. How to find relevant patents without having a well-funded organisation backing laborious and expensive patent searches? One of the strengths of the FOSS software creation and maintenance process is that in a network of developers and users (which are not clearly distinguishable) meta-information concerning the particular software package can flow freely. Can this kind of a network also be used to improve the gathering and processing of patent-related information? Nowadays, some quite paradox things can be watched: For purposes of a political fight against the patent system, a lot of FOSS stakeholders not bound to pro-patent companies have created information pools where they share news concerning individual patents and their potential or factual impact on certain FOSS software packages. Although planned merely as a tool for scandalising distinct aspects of the patent system, in general, and of the patentability of computer-implemented inventions, in particular, such information pools surely also have a side effect that certain patents of particular importance have become fairly prominent, and virtually every developer has a chance to learn of them. And recently I stumbled over an excellent article on "collaborative filtering" in the print edition of  The Economist which is also available on the Internet (Reg. req'd):"[...]Collaborative filtering starts off by collecting data on individuals' preferences. This can be an explicit process, by which a user ranks a book (or CD, or restaurant) on a numerical scale, typically on a scale of one to five. It can also be an implicit process— a purchase, for instance, is a clear indication that an individual is interested in the item in question. But implicit measures can also be more subtle; for instance, the amount of time spent viewing a web page, or even just the 'clickstream'— the sequence of links clicked on by a person browsing on the web. These different methods can then either be aggregated into a single score, or stored separately to allow more detailed analysis. And sometimes, consumers will be asked to score the same item in different ways — for instance, what one thought of the food at a restaurant, and what one thought of the service.In principle, it should be possible to set up a website where stakeholders (developers and users) not only can highlight patent applications and/or granted patents but can also rank them with regard to their assumed impact on a certain FOSS project, e.g. based on cease-and-desist letters issued by patent holders and/or litigation-related activities as well as on general considerations on granted claims. Certain cryptographic protocols can be utilised in order to make sure that such ranking processes are pseudonymous. Someone who thinks that a certain patent application or patent might be relevant with regard to a certain software project would have a chance to get from such a system a list of other patent applications and patents which have been considered relevant by other stakeholders in similar contexts. This way, 'clusters' of close-by patents might be identified in the same fashion as 'clusters' of close-by books are determined by on-line retailers like Amazon. Of course, such collaborative filtering would not replace a thorough legal analysis of a given claim in the context of a particular FOSS project in the light of the applicable law but the filtering might be an important inprovement, prior to any expert analysis, in finding potential needles in the heystack. Maybe that the FOSS community might have a chance to be best informed about potentially conflicting patents, even better than other stakeholders not sharing such kind of collaborative filtering network. There are, however, at least two serious difficulties to surmount:
> In principle, it should be > possible to set up a website where In practice, http://gauss.ffii.org > stakeholders (developers and > users) not only can highlight > patent applications and/or > granted patents but can also rank > them with regard to their assumed > impact on a certain FOSS project, The aim of the site is not restricted to FOSS project, but also showing SME and developers which patent are granted, such that they can start opposition procedures if the see somebody trying to patent their own ideas. Secondly, the wiki aspect of the site allows information sharing about prior art. Or that people makes pages with containing lists of related patents. We are also working on collective filtering, where users can add new swpat to the database. Perhaps in the future somebody will contribute code for a "change of state" notification, e.g. such that you can subscribe to a patent application and be notified when it is granted, or when a opposition procedure starts or finishes. -- Mvh. Carsten Svaneborg http://gauss.ffii.org debugging sofwarepatent practice since 2005.  Post a Comment
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