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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?"
The patented parts of the kernel were deveopled in Malta, Egypt and Madagascar where no one holds said patents.
Also, kernel.org releases the SOURCE code. And it's more of a "reference implementation" or "proof of concept" than anything else. If someone actually COMPILES the kernel without first removing patented techniques, well, that's their own problem.
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How long before kernel developers are sued for patent infringement?
This brings up an interesting question. Who gets sued in this kind of situation? The one who writes the code, the one who compiles it, the one who distributes it or the user? Technically, there shouldn't be anything wrong with the source code itself, since it is not a product or a device. An example is that the ISO source code is freely distributable, even though there are many patent problems. Now it's it's not the developers, who is it? Unisys seems to have tried going after GIF users (web sites), while some others seem to try differt approaches. This is one really bad thing about software patents.
Opus: the Swiss army knife of audio codec
Just because a company holds a patent doesn't mean they have to enforce it, or plan to. If they wish they can grant Linux or the world an unlimited license to use the patented technology (which would be the friendliest approach) or they can simply ignore patent violations, which is at least neutral. (Ignoring, rather than granting license to use, is worse because it means they may change their minds at some point when the technology's already running enterprise servers throughout the world, at which point they pull a Rambus. In some ways it's worse than enforcing right away; at least if they enforce right away there's less damage to existing codebases.)
It's rare that you're presented with a knob whose only two positions are Make History and Flee Your Glorious Destiny.
No, the developer may be sued by the patent holder.
His freely available illegal implementation decreased the market value of the legal version, and can be held responsible from the patent publication date, not from the date he is notified of infringement.
This also assumes that the patented algorithms were released publicly before the patent was filed. Also you can't ignore a known patent infringement for many years. Like trademark infringement, you must act when you gain knowledge of infringement.
IANAL, this is my understanding of patent law in the US.
The problem with software patents is that the more you look for, the more you will find; lots of basic techniques have been patented (often two or three times). If you look for and find these things, you either have to work around (very difficult or impossible in some cases), sue to invalidate the patent (expensive), or be subject to penalties for willful infringement. If you don't look, the patentholders have to slog through YOUR code looking for reasons to sue (and no willful infringement penalties). Why do their work for them?
(OK, maybe Linus wasn't right about the hit man thing. A hit man might be cheaper than an IP lawyer, but murder really IS unethical, and besides, you'd have to wipe out the whole corporation, and that gets almost as expensive as a lawsuit. But I assume Linus was speaking tongue-in-cheek there)
On Sun, 11 Aug 2002, Larry McVoy wrote:
>
> This issue is more complicated than you might think.
No, it's not. You miss the point.
> Big companies with
> big pockets are very nervous about being too closely associated with
> Linux because of this problem.
The point being that that is _their_ problem, and at a level that has
nothing to do with technology.
I'm saying that technical people shouldn't care. I certainly don't. The
people who _should_ care are patent attourneys etc, since they actually
get paid for it, and can better judge the matter anyway.
Everybody in the whole software industry knows that any non-trivial
program (and probably most trivial programs too, for that matter) will
infringe on _some_ patent. Ask anybody. It's apparently an accepted fact,
or at least a saying that I've heard too many times.
I just don't care. Clearly, if all significant programs infringe on
something, the issue is no longer "do we infringe", but "is it an issue"?
And that's _exactly_ why technical people shouldn't care. The "is it an
issue" is not something a technical guy can answer, since the answer
depends on totally non-technical things.
Ask your legal counsel, and I strongly suspect that if he is any good, he
will tell you the same thing. Namely that it's _his_ problem, and that
your engineers should not waste their time trying to find existing
patents.
Linus
god n. : the Supreme Being, indistinguishable from a good random number generator.
see here.
Patents has NEVER brought anything good to society. All patents do is create a monopoly.
1) There are no truly unique inventions. Everything is an evolution of everything else.
2) The car was patented. While the patent of the car was active cars were not built and they were low quality, etc. Ford got around the patent and made cars that everybody could buy and drive. Windsurfers were patented. The company windsurfer held onto the patent and in the last couple years of the patent sued the hell out of companies. Result companies went under and Windsurfer took the money and ran. Sure the original patent holders invented the car and windsurfer. But those same inventors did nothing to further the invention.
3) Time has shown again and again that ideas or concepts are worth nothing. Execution is worth everything. There are hardly any companies that survive only on patents. If you look at most big companies they survive because they know how to run a business.
4) Now and the future the only ones penalized by patents will be the "western" world. The rest of the world does not care about patents and they clone, etc. Why? Because patents introduce a penalty that only the "western" world can afford.
"You can't make a race horse of a pig"
"No," said Samuel, "but you can make very fast pig"