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The Linux Kernel and Software Patents

Posted by CmdrTaco on from the sumthin-to-think-about dept.

batsman writes "The Linux VM system programmers are discussing the software patents that could block further development of important features. Alan Cox brings up several SGI patents covering the techniques they were considering, and Daniel Phillips has found some patents that affect features already present in Linux. Linus Torvalds thinks they should ignore these patents and pretend they don't exist until they cause troubles. How long before kernel developers are sued for patent infringement?"

7 of 544 comments (clear)

  1. Kernel developers don't have to worry by owlmeat · · Score: 3, Informative

    Any patent can be legally used for home or hobby use. The problem will lie with commercial exploitation of the patent. The developers are off the hook. Not so easy for Redhat et al.

    --
    They stab it with their steely knives,

    But they just can't kill the beast.

    1. Re:Kernel developers don't have to worry by capologist · · Score: 5, Informative
      From 35 USC 271:

      (a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
  2. Re:Clean Room by rsidd · · Score: 3, Informative

    Patents are patents. You're confused, or you're thinking of copyright.

  3. Re:Independent discovery? by Anonymous Coward · · Score: 1, Informative

    Patent law basically says "tough luck" to the guy who does independent rediscovery -- unless he can show that his work was prior art.

    If two people independently invent the same thing at the same time, the one who gets to the patent office first "wins".

  4. Patents were not restricted to machines! by Phronesis · · Score: 5, Informative
    Patent law was made to protect inventions -- physical pieces of hardware.

    Funny, the Constitution says (Art. I, Sect. 8)

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
    There is nothing there that says the "discovery" needs to be a machine and not an algorithm.

    Thomas Jefferson thought patents should be just for machines, but he was not the king of the U.S., and others thought differently. The Patent Act of 1793 states that the inventor of

    any new and useful art, machine, manufacture, or composition of matter, or any new or useful improvement thereof
    is entitled to a patent. Note that "arts," not just machines, are entitled to patents. The 1952 Patent Act revised this to read,
    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

    Again, not just machines, but processes were elegible according to the letter of the law to be patented. Algorithms and business plans seem to me to be processes and hence, are not automatically excluded from the wording of the historical patent laws.

  5. Not Just a Good Idea, but the Law by Euphonious+Coward · · Score: 4, Informative
    It's not just a good idea for engineers to ignore patents. As I understand it, U.S. case law effectively forbids you from reading patents that affect your work.

    Here's how it works: if you read a patent and decide it doesn't apply, and then you get sued and lose, your liability automatically triples because you violated it flagrantly. If you didn't read it, the violation was incidental. Many big companies have policies forbidding their engineering staff from reading patents, for just that reason.

    (Those of you who notice a similarity with the Catholic notion of mortal and venal sins may feel smug.)

  6. Patents certainly did not help the Wright Brothers by HopeOS · · Score: 3, Informative

    The Wright Brothers were precisely the amateurs you mention. They did patent their invention and spent the next ten years fighting off other competing companies for exclusive rights to this body of work. They prevailed in court and yet completely failed to prevent rivals such as Glenn Curtiss from building airplanes. Moreover, they wasted years of useful energy and a tremendous fortune in the process. Most importantly, Curtiss' wing design was superior to theirs, and the movable surfaces which replaced the Wrights wing-warping system is the basis for the ailerons of virtually all aircraft built since.

    -Hope