Patents and OpenMoko

Bogdan Bivolaru bogdan.bivolaru at
Tue Feb 12 21:03:08 CET 2008

Vasco Névoa wrote:
> Hi. Sorry to barge in like this, but I don't quite understand the problem to begin with...
> Isn't open source code by definition protected against subsequent patents?
Yes, normally patent granting offices do search for prior art, but how 
thorough do they seek it?
How do you deal with incapable and ill wanting individuals inside patent 
granting offices?
> It is part of the patenting process to search for conflicting publications; if they find any, then the candidate idea is not a novelty and cannot be patented. Publishing is the best weapon against (subsequent) patents: cheap and effective.
 From what I have seen so far prior art is most successful as an 
argument when actually challenging the patent in justice / in patent 
offices. By showing prior art, "freedom" software developers can demote 
a patent: look no further than the patent suit filed by Trend Micro 
against Barracuda / ClamAV. What is actually needed every time someone 
is trying to enforce a bogus patent (called a thicket) is a white knight 
that comes to rescue freedom projects. Although the license fee was not 
very high for the TrendMicro patent and they could have easily paid, 
Barracuda stood up for ClamAV, in fact defending the project.
> I think we should just add some way to automatically timestamp every code check-in in a legally binding way, like using some outside certification entity's digital signature (that carries a legally recognizable timestamp).
Of course one can assume that if most freedom projects were using 
digital signatures and timestamping authorities, that could discourage 
patent holders to go against freedom developers. But I should remark 
that a freedom & "free-beer" timestamping authority has yet to be found! 
Maybe will take up the role, maybe not.
> An open-source public repository is a valid publication of ideas, which are therefore not patentable.
Patents are a danger to freedom software because they force hobby 
developers (poor, no money) to hire lawyers to reach the point in the 
justice system where presenting prior art is actually relevant for 
challenging the patent - in a counter-suit.
Of course that's what the Linux defense fund is for, but one should know 
that such a fund is not limitless - it can only finance a part of free 
projects, probably the most important ones.

Going back to the Barracuda example, Barracuda says " there is a lot of 
prior art here 
] and the patent is overly broad."

But fortunately, courts move slowly. There is plenty of time for 
discovery [discovery of prior art that is] to proceed, on both of 
Barracuda’s defense claims. We’ll have legal and political answers on 
the use of patents to deny innovation long before any verdict here.

The fact that "courts move slowly" is fortunate only because Barracuda 
is a company with a fair amount of lawyers and financing , if it weren't 
for them ClamAV would have either be forced to either look for sponsors 
for the suits or to close doors.
> What do you think?
Eh, i guess it is not very easy to find sponsors when someone's putting a cold knife at your neck, is it? Who [as in what company] would risk investing their money in such a risk endeavor? Maybe they will help you, maybe they will try to avoid you and your problems and find alternatives to your software. 

If you want to learn how much innovation lies in a patent and about patents in general please go to

I had learnt that the "leading country" in bogus patent claims is US, which is currently undergoing a patent reform:
Quoting from the EFF stance on this reform (link above):
	"The post-grant review system would allow nonprofits like the EFF to
	challenge bum patents for only 12 months after they are issued. In the
	EFF's view, this isn't nearly enough time to become aware of dodgy
	patents and the impact they will have on the tech community at large.
	The group would prefer to retain the current reexamination system and
	simply add post-grant review to the process." 

Hope my post helps you understand better the current patent system.
Let us how the patent system will shape up after this reform! I hope for the better!

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