Dev.SN

Why Stupid DRM Might Be Good

posted by janrinok on Thursday March 06 2014, @04:12PM   
from the cup-too-far dept.

We covered the Keurig's DRM'ed Coffee Pod three days ago, but today Blackmoore provides us with a link to a Cory Doctorow article: Why DRM'ed coffee-pods may be just the awful stupidity we need.

In it, Doctorow argues that this case might conceivably lead someone to initiate legal action which could eventually, given a technically-savvy judge, result in common sense being applied and legal precedent being created. Blackmoore also provides this quote from the article: 'But of all the DRM Death Stars to be unveiled, Keurig's is a pretty good candidate for Battle Station Most Likely to Have a Convenient Thermal Exhaust Port.'"

• Stupid patents might be a good thing, too. (Score: 4, Informative) by MichaelDavidCrawford on Thursday March 06 2014, @07:17PM

  by MichaelDavidCrawford (2339) on Thursday March 06 2014, @07:17PM (#12294) Homepage

  I don't actually have my names on any patents, but only because the goat fuckers I used to work for were to cheap to apply for a patent on my invention. That's the last time I turn my inventions over to an employer.

  I understand that Arnold Beckman - I think it was Beckman - was experimenting with electrode chemistry when a fire broke out in his lab, thereby destroying his laboratory notebook. He completed his dissertation on some completely unrelated topic, then after graduation, uh, "invented" the Ph meter, thereby, uh, "earning" metric fucktons of money without having to split the proceeds with the Institute.

  Just to set foot on the fucking campus, one must sign a patent agreement. :-(

  Anyway:

  There are ALL KINDS of ways to break a patent. The reason we have patent trolls is that most don't bother, they just don't want the hassle so they pay off the troll.

  That actually happened - indirectly - to ME, as not long ago I asked a now-wealthy former client to lend me a few grand. In my request I pointed out that by paying me maybe five grand for my software consulting, he was able to retire completely from the computer business then start a completely unrelated manufacturing business.

  He actually wanted to lend me the cash, but sadly pointed out that he was not nearly as rich as I thought, as a patent troll ate his lunch. While he was the first to sell, and I was the first to implement this invention, which for a while was selling like hotcakes, some joker had previously patented the exact same invention, before our product EVER hit the market.

  So anyway:

  It's not so much that a patent must be "novel and unobvious", that that each individual claim must be. So even if the invention as a whole is clearly novel and unobvious, you may be able to defeat at least SOME of the individual claims.

  Everyone seems to think that one can only do that by turning up prior art. That will defeat the novelty. But I have never once heard of anyone even attempting to overturn, not a patent but a claim, for being unobvious.

  Lots of patented claims are obvious to you and I. I expect they would be too to a jury, were an expert witness able to lucidly explain their obviousness.

  Also, each patent must include instructions for actually making the invention. I don't recall the exact wording, but the instructions aren't expected to enable just anybody to follow those instructions, only those who are knowledgeable and experience in the field. So you are I would be expected to read a software patent, then after it expires after twenty years, we should be able to bring our own identical replicas of the invention to market it, release as GPL code or what have you.

  So I was quite excited to discover the US Patent Office Clearinghouse that used to be in Sunnyvale, California. The USPTO put that there specifically to encourage Silicon Valley.

  So I dropped by one fine day, so I could drop my then-meager life savings into photocopying all seventy pages of the LZW compression patent. That's what GIF uses, and was the reason one could not until just a few years ago release binaries of GIF code as free software.

  (Fortunately, CompuServe designed GIF in a way that enabled one to produce standards-compliant uncompressed GIFs. There's some C++ code for that in ZooLib [zoolib.org].)

  So I got home and cracked open that patent. It was fucking Greek to me.

  Many years later I helped a friend write his patent. He carefully explained that one could erect a, uh, "barrier to entry" by making those instructions completely incomprehensible to anyone, even experts in the field, other patent attorneys and so on.

  Just about always, it is only the claims that are contested in court. My thesis is that one should be able to overturn a patent because the instructions for making the patented invention do not comply with either the patent laws or international patent treaties.

  In general, USPTO patent examiners aren't experts in the fields whose patents they examine. Even if they are, they just don't have the time or equipment or tools to actually try out following those instructions. Other than checking to see whether those make grammatical sense, I expect they don't ever really examine the instructions.

  A good way to overturn a software patent then, would be to have a few expert witnesses who were all experienced respected software engineers with impeccable credentials.

  Give them a month or so to write code that implements the invention, while at the same time you also have expert witnesses who are project managers, QA and the like. Bring the commit logs and bugbase to court with you.

  --
  I have a major product announcement [warplife.com] coming 5:01 PM 2014-03-21 EST.

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