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The Linux Kernel and Software Patents
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?"
If Linus has no problem violating patents, I would have no problem violating the GPL. Intellectual property is intellectual property, whether it's covered by a copyright or a patent or a trademark or whatever. If Linus intends to willfully violate someone else's IP, he should have no problem with me violating his IP.
I don't think this is about SGI holding patents over their heads, but the kernel developers diligently checking existing patents before violating them.
Comment removed based on user account deletion
Yeah, I'm sure they filed those patents with the explicit intent of screwing over Linux developers. They HAVE been good. They have not sued.
How is that good? It's the world we live in. If SGI hadn't patented the technology, someone else would have, and they would have extorted SGI for millions. It's defensive patenting. You patent everything no matter how obvious for fear that lawyers will fail to see its obviousness.
In summary: SGI didn't do shit. Lay off.
As usual, the average IQ of a slashdot poster is 50 right after an article gets posted. I think the people at Slashdot who reward based on who posts first to an article are idiots who greatly lower the quality of discussions of postings here.
Linus is saying that people should ignore patents, in the sense that people should come up with their own ideas independent of what other people may come up with at the same time. This way, if the patent goes to court, they can say "I invented the same thing with no knowledge of their patent"; obvious things can not hold up in court.
As the recent BT case shows, the patent courts are more reasonable than the average Slashdot loonet thinks they are.
I am not logging in; the Slashdot editors like bitchslapping people who don't hold their party line.
Not if M$ buys the rights. Its not like like they have not done this before !
frankly patents is going to bite the U.S. in the arse
why because simply put you dont think that there are people out their violating the GPL now ?
(e.g. Microsoft may have changed parts of linux kernel and I dont see those changes published )
people clone hardware all the time
(company did some Set top Box work did well until it sent a few to east and low and behold clones apear)
frankly all the real development will be done in china and to hell with the WIPO
(and you would think biotech is differant 150 grand and synth any protein you like sod the patents )
regards
John Jones
Why bother developing a new VM when BSD already has a perfectly fine stable VM? Does the term Not Invented Here mean anything to these people? They're setting back the state of computing by 10 years!
Linus isn't interested in standing up for our right to code. He'd doesn't like politics, and would prefer to ignore the problem. But the problem won't go away. Rather than say immature stuff like that, it's time for him to use his notoriety to speak publicly about the problem and why it should be fixed.
Bruce
Bruce Perens.
I think what he is meaning by that, is the fact that patents are de facto validated in court and not by the USPTO, as the latter grants nearly every stupid and insignificant patent that comes by.
:)
In fact nowadays you can't write a single line of code without a chance of having a stupid patent somewhere which forbid it ! this is just slightly exaggerated.
So when and (if) someone dare to sue a Linux hacker about some stupid patent, considering all the interests now in stack, you will probably have someone with deep pockets (or a big defensive patent portfolio, can you say IBM) who will jump to defend it.
I think this is the best strategy, as Linux is probably already infringing hundreds of patents, and nobody can review all the thousands patents that may apply every time he writes a single line of code, and this why patents are bad and impractical
Anyway experience has shown that 95% of the time, Linus always does the right thing , (well this is just bit exaggerated to, but not far from the truth)
A lot of the companies who are throwing around patent-infringement lawsuits seem to be in it for the money. "Duhhh", you say, but it might mean that Linux hackers not needing to be very concerned: since they don't have much money, for SGI or others to sue them would not be very profitable.
That said, anyone who makes money off of Linux (Lindows resellers, Red Hat, etc.) might find a patent infringement lawsuit on their doorsteps. One very interesting patent case that is still in progress is the Lemelson "machine vision" patent action against anyone who uses bar code scanning (i.e. your local supermarket). What's interesting about the Lemelson case is that the Lemelson Foundation sues companies that USE or SELL barcode scanners, not those that MAKE barcode scanners. The common opinion on this strategy is that they avoid the manufacturers because (1) manufacturers can afford GOOD lawyers, whereas the little guys prefer to roll over, and (2) Lemelson WANTS the manufacturing of scanners to continue, because everyone who buys a scanner is a new victim for a patent infringement action.
By the way, Lemelson patents are also an excellent example of the "submarine" strategy. Lemelson filed a very general "machine vision" patent back in 1956, but it wasn't issued then; he proceeded to "update" its claims and clauses for thirty years as the technology progressed, before finally receiving a patent with a 1956 invention priority date that was tailor-made to match the technology of the day. Boom! Everyone's an infringer!
Info on Lemelson patents
Good article on the "submarine" patent fiasco
It's annoying, but it's a pretty solid and very common practice for anyone involved in software development. Dont Look At The Patents.
Patents have become such a complete minefield that if you spent time researching software patents while programming you might just as well quit the buisness. You cant develop anything beyond 'hello world' without risking running afoul of software patents. They're overly broad, they have decades of prior art, they're trivial and should never have been awarded in the first place, but they're there. And it will cost to get them overturned.
What it comes down to is that basically you have three choices. Either you dont know about them, or you know about them and violate them or you quit developing software.
And out of those choices not knowing about them is the least painful and/or dangerous one.
I've never met Linus, but from reading the Linux kernel mailing list over the years, I think he's doing just fine. Everyone is so quick to find some cause to rant about, but he's saying, I'm here to develop the kernel. He's not a lawyer, nor has he ever been known for his activism, but quite honestly, I don't want the head kernel architect to be a political spokesman, that just slows down projects and gets the developers thinking about the wrong things. Does this issue have to be addressed, definetly, but I think he knows he's not the one to do it. It's better suited for Redhat or maybe HP, not developers.
"Karma can only be portioned out by the cosmos." -Homer Simpson
If Linus (et al) are publishing source code, isn't this code protected by the first amendment no matter what patent law says? I mean, by sending out the source code, aren't they simply giving a description of *how* a patented thing works, not an implementation of that thing actually working? And since the patent requires that the patented thing be fully described, isn't source code simply a different way of saying something that is already public knowledge?
Couldn't a developer who is being sued for patent infringement simply say, "I'm just exercising first amendments rights.. and besides I'm not saying anything more than you've already said in your patent filing. I'm just saying it in a different language than you."
?
Key to financial independence: Spend less than you earn. Save and invest the difference. Do it for a long time.
By not knowing whether any given algorithm or method has been patented (and chances are most any real project has some 'infringing' methods) you not only protect yourself against accusations of willful violations, and against negligence for failing to find *all* violations, but you also weaken the patent itself, since by *policy* you didn't refer to the original claim and thus definitely came up with your solution by yourself.
While I respect your opinion, I have to flatly disagree and ask what it is you're smoking.
Patents on hyperlinks? Patents the parent poster mentioned? Patents on chat bots. Come on -- all it would take is one guy with a BS in comp. sci. and 5 minutes with Google to evaluate any of those.
This is the government we're talking about here. If any 24 year old comp. sci. major can figure that out, shouldn't we expect the same of a government body which regulates patents that result in high dollar lawsuits?
~Dalcius
Rome wasn't burnt in a day.
I didn't like it either. How do you "whack" Microsoft? Fly a jet plane into their Redmond campus? I'd rather not be identified with the sort of person who does that.
Anybody who takes the 'whack' comment seriously is an idiot, and probably believes that penguins really can charge at you in excess of 100 miles per hour.
Linus isn't interested in standing up for our right to code. He'd doesn't like politics, and would prefer to ignore the problem. But the problem won't go away. Rather than say immature stuff like that, it's time for him to use his notoriety to speak publicly about the problem and why it should be fixed.
I interpreted Linus's outburst as an admission that he really does care about this issue a great deal but hates the idea of his core developers being distracted by it. Personally I don't want to see Linus at all distracted by this either. His energy is much better spent quarterbacking the development effort. Actually, it's up to people like you, Bruce, to take the lead.
Have you got your LWN subscription yet?
What's the obvious thing to do here? Ignore the problem. I'm absolutely serious.
Either you ignore the patents or you stop coding. There is no other solution. You can't be a patent lawyer and a coder at the same time. You don't have enough time to do both. And unless you're a patent lawyer, you will never reasonably know that you haven't infringed on something.
I strongly suspect, to the point of certain belief, that 99% of the patents in question are bogus and that Linus and Co. would win a court case. But again, there's not enough time in the world to both go to court and to code. Of the remaining 1%, you don't know which ones they are. The only way to avoid them is to remove all suspect code. You can't simply recode it in another algorithm, because that other algorithm may be patented as well. So you remove the code and are left with nothing more than a README file.
There are times when you must ignore the law of man and obey the law of God. And the law of God says that you only have 24 hours in a day. If you're going to be a coder, you have to ignore patents.
A Government Is a Body of People, Usually Notably Ungoverned
Since a patent granted by the USPTO is _presumed valid_ once it gets to court, it is essential that they DO filter out bad patents. The judicial branch is NOT for determining the validity of patents; they assume, unless the _defense_ proves otherwise, that the patent is valid.
for you asseration that patent holders can't ignore infringement.
Patents are NOT trademark like.
In some legal senses trademarks are not owned. One merely retains the *temporary* right to associate one's business with a particular mark. That right is maintained only so long as in the opinion of the *public* that business is uniquely identified with the mark. That's very important. It is the *public* that determines the validity of a mark. I cases where a mark is called into question in the courts the court only rules whether or not a particular mark uniquely identifies a business in the *public* mind. He does NOT assign *ownership,* only the rights for USE. One *registers* one's use of a mark to show that it was in use by you at a particular time. One does not have *title* to it. Thus for a mark to remain current the courts have ruled that one must defend it's association with one's business vigorously and a mark abandoned becomes once again available or even in the public domain.
A patent is completely different. It is considered true property, like your house, and like your house you can allow people to use it as you will, even to the point of ignoring neighbor's children using it as if it were their own while 'capriciously and discriminatorially' prosecuting another neighbor for trespass. One is given *title* to a patent, just as one is given title to a house, and many of the same legal principles apply. Evidence of this is as near as the headlines, as nearly every day some company discovers they own title to some patent that they didn't even know they had and begins enforcing it, often times against only one or two specific 'people' while continuing to allow all others to freely ignore it.
Kind of like allowing one neighbor to use your lawnmower without asking. It doesn't cease to be your property and you retain the right to, at any time, deny him it's use, or to prosecute a burgler for stealing it.
All perfectly proper, legal, and within the general philosophical framework that governs all property law.
Who gets sued in any situation? The people with the most money, of course!
Or, in certain situations, the targets of the suit are chosen based on the amount of damage the suit will end up doing (so Linus is an obvious target no matter how much money he may have).
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
Ignoring the problem is a viable solution since patents expire. In fact having all these frivolous patents in the public record prevents them from being filed in the future.
Linus is merely saying that coders should code and legal matters should be handled seperately. Remember the statement was made in a kernel development thread not a political or legal forum. It only hurts software development efforts for coders to proactively go out and seek out stupid patents that might possibly cover what they are doing.
Come on wasn't it Shakespeare who said "The first thing we do, let's kill all the lawyers" I think Linus was mostly just making his point when suggesting whacking stupid people.
Linus' point reminds me of stories of the Eastern Bloc during the Cold War. Whenever it was possible, the dissidents would not recognize their authorities that governed their lives, and since authorities are only authorities when you grant them authority, eventually they had no authority. I believe it was Vaclav Havel who wrote that manifesto, and I'd link to it if I could. We work and ignore the patents, the public sees the innovation resultant, the patent-holders begin trying to chill that innovation with suits, the public feels that chill and reacts against it, and the authority residing in the patent is lessened.
Ignoring patents lessens their power. It isn't just because lawyers understand patents and geeks don't.
I do believe that Linus' point just might be that a patent is supposedly for a "non-obvious" idea. If you or he can come up with an idea without benefit of digging it out of someone else's patent, the idea can not have been as obscure and "original" as the jackass that patented the idea thought, or the over-worked, under endowed patent office clerk assumed. The fact that some mediocre mind has a brain cramp and actually has an idea, doesn't mean that many others, more nimble minded had not already devised,would not,or could not devise the self-same idea independently at need, because to them it was and always had been and would always be obvious. Far too many of the mentally lame file patents these days shrilly proclaiming their invention of the obvious. Worse, they turn about and sell their patents to the unscrupulous, who then display all the worst behaviour of parasites.
In fact, I suspect that many creative minds don't bother patenting ideas, while those who do, do so because of the fear that they may never again experience the rare event of a creative thought.
------ The only greater hazard to your liberty than n politicians is n+1 politicians.