from the time-to-think-hard dept.
Foresight's new open source disclosure website, PriorArt.org, is generating controversy. Some complain that it's too "anti-patent", while others are concerned that it may have pro-patent effects. About the latter: there are two specific concerns raised by Richard Stallman that merit attention. Read more to see the pros and cons described, and then give your views. At the end of the Read More section are some quotes from people who currently see the project as a good idea (Jeff "Hemos" Bates, Brian Behlendorf, Lawrence Lessig, Eric Raymond, Lawrence Rosen). You may want to read this general description of the project first. This is a serious issue, folks, and merits serious thought and participation. The purpose of PriorArt.org is to enable inventors of open source and nanotechnology innovations to do an inexpensive disclosure of the work, in a way that patent examiners are likely to see, in order to head off patenting of these ideas by third parties.
Richard Stallman of the Free Software Foundation has two concerns:
"In the US patent system, if the PTO looked at certain prior art and decided to issue the patent anyway, the court is supposed to presume the PTO was right to regard that prior art as insufficient. But if the PTO was unaware of the prior art, then the court can look at it with an unbiased eye.
"As a result, prior art is more effective against patents if the PTO does not know about it. For potential patent victims to inform the PTO about prior art is a self-defeating project."
Richard is of course correct on what the court presumes. There is a tradeoff here — disclose the work and hope to head off the offending patent (and avoid having to go to court) versus not disclose and hope to win in court.
For those without large legal budgets, the former may look more attractive. It does to Foresight, which has open source web-annotation technology (http://crit.org) that we were trying to keep a company (ThirdVoice) from patenting. We were told it would cost $6000 to do a good disclosure; using PriorArt.org it would cost under $20.
Either path — disclose or not disclose — has risks. Which is best depends partly on one's legal budget.
We suggest that this be discussed this more thoroughly by a broader community.
Richard also writes:
"Then there is the strategic problem. I have seen publicity associated with this activity, and it serves as an excuse to whitewash the system of software patents. The publicity suggests that we could live with software patents, if only we "work to make the system function" in this way. It encourages people to think that the only problem in software patents is when non-novel ideas are patented, and that software patents on new ideas (some brilliant, most pedestrian) are ok. And that will undermine the present efforts now under way in Europe to prevent software patents there." Foresight responds:
We agree that software patents are bad, and wording which implies they are good should be changed.
This service is an attempt to help those who are having to deal with the system as it is today. I agree that there should be a loud and vigorous effort to end software patents, but suggest that effort be separate from short-term efforts like PriorArt.org, which so far has been funded by IP.com, thereby tapping into sources of funds which are unavailable to the longer-term goal.
But perhaps you are right and any short-term efforts are bad. This too we suggest should be discussed by a broader community.
QUOTES FROM THE OPEN SOURCE COMMUNITY
Affiliations are listed for identification only; these are individual opinions, not organizational ones.
"Doing a defensive disclosure at PriorArt.org enables the patent office to see that patent applications by third parties — on *your* ideas — should be denied."
–Jeff "Hemos" Bates, cofounder, Slashdot
"Bravo to Foresight and IP.com for making it easy to do defensive disclosures for open source."
–Brian Behlendorf, Apache Project and CollabNet
"In a perfect world, priorart.org would have little use. But we live in a lawyers' world, where its work will be crucial to keeping the innovation commons alive."
–Prof. Lawrence Lessig, Stanford Law School
"PriorArt.org — stops bogus patents before they start!"
"Publicly disclose your inventions through PriorArt.org, so that you can help prevent third parties from unfairly claiming patent rights they don't deserve and instead allow your inventions to be used freely by everyone in the open source community."
–Lawrence Rosen, attorney; Executive Director, Open Source Initiative