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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.
"IP is IP"? Not quite. Software patents in particular are very legally questionable. It's only recently that they've been recognized inside the United States, and they aren't recognized at all in many other places; ditto for business algorithms.
Patent law was made to protect inventions -- physical pieces of hardware. I see no need to respect any extensions thereof, particularly when they have such unreasonable results.
This is whythe term "intellectual property": it causes people to be confused into thinking that copyrights are the same thing as patents, when they are very different.
Did you know, for example, that many patents are invalid? That is, most patents are known by their owners to be so flawed that they carefully ask for just enough royalty so it's cheaper to pay than to go to court, but even so, about half the time a patent makes it to court get tossed out?
I think that much of the problem stems from the "non-obvious" bar being set too low.
When a company invests a lot of time and money to come up with an idea that the world would otherwise not have had, I think that the company should have a right to protect that investment through patents. Without such protection, they won't make the investment in the first place, so the idea won't be conceived, and society will be all the poorer for that.
The problem occurs when an inevitable idea becomes the property of whoever gets to the patent office first. When that happens, the law is taking an idea that would otherwise have belonged to society and general, and barring everybody except the owner from using it.
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)
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."
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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.
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).
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