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my former employer uses a GNU GPL code-base in their products & ships them, thus blatantly violating GPL. To top it off, they have filed for 2 patents to "protect" this "invention".

What can I do to stop the patenting process? I am aware of making USPTO aware of the OSS project. But what else can I do to prevent miscarriage of justice.

Would love to hear thoughts of some fellow entrepreneurs.

I know it's self-serving of me to post after my firing, but truth be told I needed that job and had to keep quiet.

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migrated from answers.onstartups.com Aug 30 '13 at 16:09

This question came from our site for entrepreneurs looking to start or run a new business.

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Why do you think that using GNU GPL code in a product disqualifies it from being patented? GPL violations are a civil offence, you can sue if you think you're harmed. You can point the facts to the patent lawyer –  littleadv Aug 30 '13 at 0:32
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The algorithm is a ripoff from the OSS, this OSS project originates from 2006. Wouldn't that demonstrate prior art and prevent patentability? –  Mikos Aug 30 '13 at 0:35
    
Why are you worrying then? They won't be able to enforce such a patent and are wasting their money. What's in it for you? –  littleadv Aug 30 '13 at 0:48
    
There is nothing in it for me, except that this silly patent might get issued and this company can go after people over a public domain algorithm. Should I notify the USPTO? Also should I brief the patent attorney who drafted the patent? since he's ethically & legally required to report it to the patent office. –  Mikos Aug 30 '13 at 1:07
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This is just screaming to be migrated to Ask Patents, isn't it? If it isn't migrated there, you really might want to try there. And contrary to the other commenter, things that ought not to be patented (due to prior art) do get patented all the time (cf. the "bread refreshing method" patent, AKA "toasting", here: patentgenius.com/patent/6080436.html). –  Chelonian Aug 30 '13 at 3:03

2 Answers 2

up vote 4 down vote accepted

Ask Patents was specifically created to take advantage of a feature of the new AIA patent law that provides a specific ways for the public to inform the USPTO of documents they think are prior art to a pending application. It can be done yourself on line. To preserve your anonymity can be done via a patent practitioner (patent agent or patent attorney). There is a time widow that starts when the application is published. The closing is the later of the day 6 months after publishing and the date a first action on the merits is issued by the examiner. Under the AIA program the examiner is required to look at the submitted documents.

Many things can affect patentablity and future validity other than published prior art documents BUT this program is only for prior art documents. Hypothetically, an email written after filing by an applicate saying he "stold" the idea would not be eligible to send in under this program. It is not "published" and it is not something pre-dating the filing that "teaches" the invention.

In your specific case the company may be claiming a relatively narrow improvement, twist, or specific application of something that is well known. They may have already put a good list of prior art in front of the examiner in an IDS. If the application has been published you can look all of that up in USPTO Public Pair.

It you are an inventor on the patent or were involved in preparing the patent you have a duty of disclosure and candor to the USPTO. That can be discharged by telling what you know to an inventor or to the patent attorney.

I am not a lawyer (I am a patent agent). It occurs to me that you may also have some legal responsibilities to your previous employer relative to their internal information and you probably do not want to be slandering, libeling, etc. them. In this case everything they are doing may be completely proper but may look bad from where you are standing and with the information and knowledge you have.

EDIT

An inventor no longer with the company might be in an awkward position. They have presumably signed a declaration stating that they consider themselves the true inventor and understand the application.

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There is a little kink, the patent attorney filed with a non-publication request. But it was I who authored the patent and my name is on it as sole inventor. How can I handle this? –  Mikos Aug 31 '13 at 1:26
    
This is getting a little too special-cased. Sorry –  George White Aug 31 '13 at 2:39
    
Not sure what's "special-cased"..the company - and regrettably one I was part of - is trying to patent an OSS technology. They are trying to patent an idea that has been in the public domain and I feel ashamed to have been involved with this sordid matter. This is definitely not "patentable", and to make it very clear, I will NOT even attempt to patent this myself (hopefully that removes the taint of "revenge"). In fact I pledge to open-source it under Gnu GPL as the original license requires. –  Mikos Aug 31 '13 at 5:00
    
Sorry to be cryptic. I was trying to say your situation seems particular to its details and going any deeper is probably something you should do with your own attorney. –  George White Aug 31 '13 at 17:55

If the GPL project is copyright to the FSF, we can help -- email us at license-violation@gnu.org. Even if not, we still might be able to, based on more details.

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