[License-discuss] [Non-DoD Source] Re: patent rights and the OSD

Karan, Cem F CIV USARMY RDECOM ARL (US) cem.f.karan.civ at mail.mil
Mon Mar 13 13:02:14 UTC 2017


I was out Thursday and Friday, but... see attached Federal Register notice regarding this particular patent.  I know that Larry was (mostly) pulling everyone's leg, but before anyone gets themselves into trouble, I figured I should put the warning out there.

I'm not a lawyer, as far as I know this doesn't count as an official warning, I'm not representing the US Government (or any other government) in this matter, etc., etc., etc.  I just personally don't want to see anyone spend time on something and then get burned in the end.  Please don't shoot (or flame) the messenger.

Thanks,
Cem Karan

> -----Original Message-----
> From: License-discuss [mailto:license-discuss-bounces at opensource.org] On Behalf Of Lawrence Rosen
> Sent: Wednesday, March 08, 2017 3:07 PM
> To: license-discuss at opensource.org
> Cc: Lawrence Rosen <lrosen at rosenlaw.com>
> Subject: Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD
> 
> All active links contained in this email were disabled. Please verify the identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a Web browser.
> 
> 
> ________________________________
> 
> 
> 
> 
> Nigel Tzeng wrote:
> 
> > Using US7460689B1 System and method of detecting, recognizing, and tracking moving targets as an example it could be useful to have
> an open source copyright license to any USG developed MTI implementation of US7460689B1 because the libraries and functions used to
> implement the patent could be reusable.
> 
> 
> 
> Nigel, I am avoiding reading that patent because I have no time, but since you did read it I can ask you some questions:
> 
> 
> 
> Is the patent already "reusable" for things other than "detecting, recognizing, and tracking moving targets"? What is the relationship
> between "libraries and functions used to implement the patent" and all those different uses of the patent claims than are disclosed in
> US7460689B1? Are those copyrighted "libraries and functions" themselves patented claims in US7460689B1?
> 
> 
> 
> Without such a patent analysis – that no open source engineer is required to undertake prior to an infringement notice from the patent
> owner – I'm comfortable recommending that we implement such open source software. The hell with random patents tossed out by Nigel
> Tzeng to scare me. :-)
> 
> 
> 
> /Larry
> 
> 
> 
> "If this had been legal advice it would have been accompanied by a bill."
> 
> 
> 
> 
> 
> -----Original Message-----
> From: License-discuss [Caution-mailto:license-discuss-bounces at opensource.org] On Behalf Of Tzeng, Nigel H.
> Sent: Wednesday, March 8, 2017 7:18 AM
> To: license-discuss at opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: patent rights and the OSD
> 
> 
> 
> Cem,
> 
> 
> 
> To give them a more concrete example (hopefully not a flawed one ☺) I skimmed ARLs patent portfolio.
> 
> 
> 
> Using US7460689B1 System and method of detecting, recognizing, and tracking moving targets as an example it could be useful to have
> an open source copyright license to any USG developed MTI implementation of US7460689B1 because the libraries and functions used to
> implement the patent could be reusable.  While a lot of the basic functions may exist today in GDL or SciPy the underlying image
> processing, change map creation, math, etc may have been reusable outside of the context of US7460689B1 and of greater interest to the
> software community when most of those capabilities were only widely available in systems like Matlab or IDL.
> 
> 
> 
> Even more so the software components required to interface with Army systems that would have to be built around any operational MTI
> system.  Getting access to source code from another government agency/DoD program isn’t always as painless as one might expect.
> 
> 
> 
> While these could be broken out and individually open sourced it is an additional burden on the Army/DoD Program and it simply may not
> get done.  It would be far easier for the program to open source the entire system with the note that US7460689B1 and others apply to
> these 4 subsystems and care must be applied to any reuse of those components.
> 
> 
> 
> I’m also curious of their opinion on the impact of the policy to give away all software patents to Executive Order 10096 and the intent
> that individual government researchers have the opportunity to benefit from their inventions.  Is there reason that software inventors
> should have less financial opportunity than hardware inventors?
> 
> 
> 
> What safeguards exist or will exist for the USG inventor that an unrelated ARL or DoD project will not open source code that unknowingly
> implements their patent and provide a free patent grant?  What happens to the entity that may have contracted for an exclusive patent
> license agreement for that patent through their technology transfer office? Will the office responsible for approving ARL open source
> releases with patent grants be able to review source code applicability to not just ARL patents but those from the NRL or DOE?
> 
> 
> 
> There is a reason I favor the patent grant language in the Educational Community License v2.0 for GOSS and large research organizations.
> 
> 
> 
> Regards,
> 
> 
> 
> Nigel
> 
> 
> 
> ObDis:  Not speaking for the lab.
> 
> 
> 
> On 3/8/17, 9:36 AM, "License-discuss on behalf of Karan, Cem F CIV USARMY RDECOM ARL (US)" <license-discuss-
> bounces at opensource.org on behalf of cem.f.karan.civ at mail.mil < Caution-mailto:license-discuss-
> bounces at opensource.org%20on%20behalf%20of%20cem.f.karan.civ at mail.mil > > wrote:
> 
> 
> 
>     I can pass it through ARL's lawyers, as well as pass it to the code.gov
> 
>     people.
> 
> 
> 
>     Thanks,
> 
>     Cem Karan
> 
> 
> 
>     > -----Original Message-----
> 
>     > From: License-discuss [Caution-mailto:license-discuss-bounces at opensource.org < Caution-mailto:license-discuss-
> bounces at opensource.org > ] On
> 
>     > Behalf Of Stephen Kellat
> 
>     > Sent: Tuesday, March 07, 2017 10:41 PM
> 
>     > To: license-discuss at opensource.org < Caution-mailto:license-discuss at opensource.org >
> 
>     > Subject: Re: [License-discuss] [Non-DoD Source] Re: patent rights and the
> 
>     > OSD
> 
>     >
> 
>     > All active links contained in this email were disabled.  Please verify the
> 
>     > identity of the sender, and confirm the authenticity of all links
> 
>     > contained within the message prior to copying and pasting the address to a
> 
>     > Web browser.
> 
>    >
> 
>     >
> 
>     >
> 
>     >
> 
>     > ----
> 
>     >
> 
>     >
> 
>     > On Mar 7, 2017, at 10:08 PM, Tzeng, Nigel H. <Nigel.Tzeng at jhuapl.edu < Caution-mailto:Nigel.Tzeng at jhuapl.edu > > wrote:
> 
>     > >
> 
>     > > You know the more I think about this, the disclaimer of patent rights in
> 
>     > > CC0 is probably best for GOSS because it avoids the attempt for
> 
>     > a one size fit all patent grant language among different agencies with
> 
>     > different policies and the complexity under which patent rights are
> 
>     > awarded to whom under the Bayh-Dole Act and Executive Order 10096.
> 
>     > >
> 
>     > > Employees of federal agencies, especially research oriented ones, have
> 
>     > > some financial interest and rights under 10096.
> 
>     > >
> 
>     > > Likewise non-profits and small businesses under Bayh-Dole.
> 
>     > >
> 
>     > > IMHO patent grant language in FOSS licenses provide a false sense of
> 
>     > > security.
> 
>     > >
> 
>     > > I would rather the government open source as much as possible regardless
> 
>     > > of patent rights as long as any known patents are disclosed.
> 
>     > As seen in Ximpleware v Versata the patents typically only cover a small
> 
>     > portion of the overall system (VTD-XML). While it is relevant from
> 
>     > the perspective of being able to use the system as built it is less relevant
> 
>     > from a code reuse perspective.
> 
>     > >
> 
>     > > For large government systems significant software components could often
> 
>     > > be reused without the specific portions covered under
> 
>     > patent.
> 
>     > >
> 
>     > > So just having a copyright license to the entire project would provide
> 
>     > > significant value to the community. There is code I wrote 30 years
> 
>     > ago I'd love to get access to again even if I couldn't use the rest of the
> 
>     > system.
> 
>     > >
> 
>     > >
> 
>     > > _______________________________________________
> 
>     > > License-discuss mailing list
> 
>     > > License-discuss at opensource.org < Caution-mailto:License-discuss at opensource.org >
> 
>     > > Caution-Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
> 
>     >
> 
>     > After a less than fabulous day at work for IRS dealing with my tiny corner
> 
>     > of tax law as well as my accounts work, I am tempted after
> 
>     > reading this.  Perhaps this could be used as well as the rest of this thread
> 
>     > as pre-decisional input to open a tight Inquiry in the Federal
> 
>     > Register.  That's the first step we can take to move into building a formal
> 
>     > record for a body of law.  Alternatively getting something
> 
>     > chartered under the Federal Advisory Committees Act might help move this
> 
>     > forward.
> 
>     >
> 
>     > I think the debate has dragged on a bit for more than a few months.  Moving
> 
>     > to where desirable federal policy/policies are adopted is
> 
>     > probably doable.  Could we narrow this down to 3 or fewer courses of action
> 
>     > that might be explored by ARL counsel in an inquiry notice?
> 
>     > Even if list participants are the only people that respond to a notice in
> 
>     > the Federal Register we're still building a useful record for later use
> 
>     > such as Federal Acquisition Rules changes, for example.
> 
>     >
> 
>     > Depending upon what shows up in the President's budget set to drop Monday, I
> 
>     > either will have a lot of time on my hands coming up or
> 
>     > an ICTAP certificate plus lots of time on my hands.  I want to see Federal
> 
>     > OSS policy evolve.  We have laid the groundwork here but need
> 
>     > to get it in the official record soon.
> 
>     >
> 
>     > Stephen Michael Kellat
> 
>     > GS-0962-07/1
> 
>     > These views are solely my own and not those of the US Government.  Rank,
> 
>     > position, grade, and bureau are cited for identification
> 
>     > purposes only.
> 
>     >
> 
>     >
> 
>     >
> 
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