> the author should have patented the idea, then freely licensed it

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.

Having a patent doesn’t guarantee someone else will not patent the work as part of some other patent. Patent examiners miss things sometimes.

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.

The problem is defending that disclosure as prior art when someone bigger claims a patent that improves or puts it into practice, which is exactly what this article is about. Even if you take a few steps to make patenting harder, if you invent something valuable it's eventually a game of chicken about preventing others from claiming the space.

> This is the brutal truth of how crappy our current patent mechanisms are.

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.

The only solution to put an end to the current patent system is to overload it. The equivalent of a DDos attack. Companies should file as many frivolous patent as they possibly can. Eventually, we'll have all the IP lawyers at 100% CPU and the world will be a much better place.

100% CPU -> 100% billable hours -> IP law is now an incredibly attractive profession -> more capacity for patents / lawsuits... and that's essentially how we got here.

Exactly. They'll scale up horizontally by adding more and more instances until supply == demand, at which case we'll be really, really sad we followed this road.

Then we all stop at the same time, the market collapses and IP lawyers go extinct.

You'll have better luck herding cats.

That sounds backwards if I'm reading you right. An idea can't be patented (well... in theory), but a new invention based on an idea can. Google apparently thinks they've got a new, non-obvious invention based on Duda's public domain work, which may itself have been patentable but wasn't.

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.

No, the way to protect yourself is to disclose anything you don't want to patent, but don't want patented against yourself. IBM had a great system for several decades[0]:

[0] https://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bulle...

That establishes prior art for X, but X+2 would still potentially infringe on X+1 and they'd have no leverage for negotiating a license. Except they're still one of the biggest patent spammers, so they probably do have leverage in the portfolio somewhere.

And that is why patents should be abolished, in a nutshell.

Software patents for sure. Not sure about algorithmn ones. Say you invent this exact compression algorithmn and want to patent it but you can't and Google steals it when you wanted to license it so you can fund a company that builds better compression algorithmns or whatever. Google is going to rip out of your profits.

What distinction do you make between software and algorithm patents? And how do you separate algorithms and unpatentable math?

The European notion of technical effect seems to work quite well.

Yes, in saying an idea is patented I was technically incorrect - in theory, an idea can't be patented, an invention is only patentable if it 'teaches' how to implement it. Nevertheless, what is patentable is still a lot more abstract that an actual implementation.

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.

The kernel of truth is that results can't be patented, but methods can be. But here Google doesn't seem to have added anything significant, and is copying a method, not just obtaining a similar result.

So - prior art is no longer good enough?

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.

> The America Invents Act signed on September 16, 2011, switched U.S. right to the patent from the previous "first-to-invent" system to a "first-inventor-to-file" system for patent applications filed on or after March 16, 2013.

https://en.wikipedia.org/wiki/First_to_file_and_first_to_inv...

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)

I certainly hope prior art is still good enough. The GP was asking whether the licence under which you publish your prior art should make a difference - I don't think it does.

> Granting a license to the code doesn't automatically prevent someone else from patenting the idea.

But doesn't the fact that the code has already been released mean it's prior art?

Correct me if I'm wrong, but I think the US patent office doesn't check for prior art (that was one of the cut backs several years ago) so instead prior art is now something that has to be challenged in court.

Or challenged before the patent is issued. The USPTO encourages this; fees for notifying them of prior art are much lower before issuance.

Wait a fee is imposed? I get why I think but if your posting of prior art proves to be true then you should have your fee refunded.

I'd have to check but if I remember right, before issuance there's no fee for less than 20 items of prior art, and just a flat $200 fee for more. After issuance I think the fee is $35,000.

so you have to pay them $35,000 to show a patent they issued is bullshit.

Outrageous.

You are wrong, but code repositories aren't checked because that is a needle in a haystack situation.

> That is completely wrong.

That maybe true but without any more detail your comment is still unhelpful.

All right. The patent office does search for prior art.

Fair enough. When the Apple / Samsung countersues were all happening I thought I read on one news site that the US patent office had stopped checking for prior art. Which certainly did seem to be the case at that time too. But I cannot find that original article yet now finding other sources that agree with your statement so it seems they do check.

Thank you for the correction :)

Just publishing prior art, in a way that proves when you did it, is sufficient. It can still be a problem if you're not aware your idea is being patented, so the patent office doesn't find your prior art, but that's not an issue here.

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.

We (USA) and are a first to patent country now.

https://techcrunch.com/2013/02/16/first-to-file-a-primer/

Yes but that just means if two inventors are working on something privately, the first to file gets priority, instead of the first to invent. Public prior art still invalidates the patent.

No, recent court decisions say public isn't enough - the invention has to have become fairly well known to practitioners of the art. Mere publication is nothing now.

Can you reference that? Recently I both consulted an attorney on this stuff, and did my own research, and that's the exactly opposite of what I've found.

You can't patent ideas only specific implementation of ideas.