Is there a way to publish software architectural design for open use and prevent patenting?

Question

I'm not sure I have the correct verbage in my question, so let me explain:

What I mean by "software architectural design":

• I have (what I believe) is a unique and useful design concept for an architecture that involves multiple clients, shared states, blah-blah, etc. etc.
• This architecture would be used in multiplayer games with persistent worlds.
• Although it would facilitate a novel kind of gameplay, it is not a description of "gameplay."

What I mean by "for others":

• Free for personal/edu/commercial use. (MIT/BSD style license?)

What I mean by "prevent patenting":

• I want to make sure that this particular design cannot be patented/copyrighted by someone else.

(Basically, litigation battles over software architectures for games like MMOs, etc. disgust me, and I want to keep this particular design idea free to use.)

Is this something that I can easily accomplish? Can I just write up a design document for the architecture and publish it to the web under say, the MIT license even though its not actual code?

Or do I have to file for a patent?

Answer 1

I am not a patent lawyer, and if you want to really get to the bottom of this subject, you would probably be better off talking to a lawyer who has a firm understanding of patent law.

With that disclaimer out of the way, I am also aware that patent laws differ in different parts of the world. Some nations allow for patents as first to register, while others first to invent.

I can't really answer with regards to nations where being first to register is allowed, as I am unaware of the nuances of law governing patents in such countries. In the case of being first to invent however, if you were to publish a something patentable publicly, and if there was nobody in the world who could provide documentary evidence to suggest that they had come up with the idea prior to your publishing it, then it this would provide enough grounds to allow patent registration to be challenged.

Here's your problem though, it's not enough to simply register a patent or to publish something publicly, as this can't really prevent someone lodging a patent application with regards to your invention. The only way to prevent patenting is to challenge the patent, and that often involves paying patent lawyers lots of money if the matter can be managed outside of the courts, and a ridiculous amount of money if the matter goes before the courts. This is partly why software patents are such a bad idea, because it's not ever going to be about right, wrong, or who actually invented what, but about who has the larger checkbook and therefore can afford to go the distance in litigation.

You're probably better of just releasing something under an open source license, and hoping that it will gain enough traction in the public domain to make an illegitimate patent registration not worth somebody's while, however it really comes down to how much value you place on the invention itself and whether you are going to be willing to go through litigation to protect your idea should someone with deep pockets and no conscience attempt to patent your idea anyway.

Answer 2

About the best you can do is publish it as widely as possible and hope for the best.

There's nothing you can do to prevent somebody from applying for a patent on something that (think they) invented. If you publish the design, the patent office may or may not become aware of it. If they do, and understand its similarity to a later application, they may cite it as prior art. If they do, that applicant can 1) argue that it's not really prior art, or 2) attempt to make minor changes to what they claim to work around your prior art (and in neither care are you likely to have any input into saying: "but that's still part of what I meant", or anything like that.

No matter what you do, somebody may get a patent on it anyway. Even if they don't get a patent on exactly what you wrote about, they may manage to get a patent on something you'd consider unreasonably similar. Another possibility is that they apply for patents on ways of applying your architecture, even if it doesn't cover the architecture itself.

Bottom line: there's not much you can do. You can't stop people from suing each other. Unless you're willing to expend inordinate effort, there's a good chance a lawsuit could be not only filed, but completed without your ever even being aware of it (even if).