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?"

Comments

Keeping things equal

[Anonymous Coward]

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.

Re:Keeping things equal

[cduffy]

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.

Re:Keeping things equal

[Usquebaugh]

There is the old problem of referring to IP. Be more specific. A patent != license.

Re:Keeping things equal

[evilpenguin]

Patents and copyrights serve different purposes. Defense of a patent is the responsbility of the patent holder. Copyright is a presumed protection. Patent infringment is a basis (IANAL, so please correct me if I am arong) for civil action, not criminal sanction. Violation of copyright (which is what underpins the GPL) has criminal consequences.

If you violate a patent, you must either cease or pay a royalty. That's different from facing a criminal sanction. The comparison you make is unfair.

That's not say that I think ignoring patents until they are a problem is the right approach...

Re:Keeping things equal

[i_am_nitrogen]

If Linus intends to willfully violate someone else's IP, he should have no problem with me violating his IP

Read his list post again -- he said he would willfully remain ignorant, and deal with any patent issues as they are brought to the kernel by the patent holders (as opposed to actively seeking patents on things that might one day be implemented in the kernel, slowing development significantly). Usually, as was the case with the free SVQ1 Sorenson codec, if patents are discovered which would impede development, a new algorithm that does the same thing can be created or implemented.

Re:Keeping things equal

[JoeBuck]

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?

Re:Keeping things equal

[JoeBuck]

Whoops, I hit the wrong button and posted this one before proofreading. I meant to say "This is why the term 'intellectual property' should be avoided". Sorry about that.

Re:Keeping things equal

[pete-classic]

RMS makes a better counter-argument than I could make.

Also see the last quote on this page.

Patents cover ideas, whereas copyright covers (written) "works".

-Peter

Re:Keeping things equal

[capologist]

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.

Re:Keeping things equal

[ivan256]

Intellectual property is intellectual property

There is no such thing as "Intellectual property," and the term is used primarily to confuse people like you into thinking the way you are. Copyrights are not patents. Copyright is automatic, patents can be challenged and found invalid. You get copyright on anything you create. Most things aren't patentable. When you group these very distinct concepts under "IP" you fool yourself into making statements like the one you just made.

Either way, both sets of rules include provisions for limited length of rights. Essentially, even when you have a copyright or a patent you don't have any "property", after a period of time you loose those rights.

Re:Keeping things equal

[SerpentMage]

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.

Re:Keeping things equal

[cduffy]

What you miss is that a software developer's entire job is coming up with ideas and methods of implementing them and then describing a methodoly to implement those ideas in such a formal language that they can be executed by machine.

Which is to say... the only really important thing that a really good programmer ever does is come up with ideas; certainly there's a tremendous amount of drudgework involved in debugging, and making different systems talk to each other, and so forth... but the really core thing that extremely good programmers can do and only average programmers can't is come up with new algorithms.

If coming up with new algorithms is so core that it's part of the job, then why the hell should anyone else be prevented from implementing a newly developed algorithm?

Re:Keeping things equal

[HiThere]

1) There was no assertion that inventions created and patented were, in any sense, bad. The assertion was that they were an evolutionary developement that would have occurred anyway. This may not be provably correct, but it is a very different assertion.

2) There has, as far as I am aware, been only one Thomas Edison. Perhaps there are reasons? You might consider them.

3) Patents are advantageous to those who hold them AFTER they hold them IF they have enough money to defend them. These conditions are not commonly met among inventors. Patents have been described as "a license to sue and be sued". This is nearly correct, but it ignores the effects of patent pools, which only serve to increase the degree of monopoly in an industry.

4) Were I to accept the limited degree of benefit that you ascribe to patents, I would still need to consider the costs that they impose. And these costs are formidable.

My general conclusions are that the US patent system is so broken that we would be better off without any at all. I also feel that a limited patent system might be desireable, in which patent pools should be explicitly prohibited and if a patent was ruled "silly", then the defense fees would need to be paid by the clerk that granted the patent. And that no penalties could be collected under a patent until a panel of experts in the field ruled that it was non-obvious. These experts to be selected by lot from a population that volunteered (for some minimal recompense) and declared at the time of volunteering what their field of expertise was. This is not sufficient to totally rule out silly patents being enforced, but is obviously better than the current system. Also, that this same panel could throw out any patent on the grounds that it was too broad. Not just decline to enforce some particular provision, throw out the entire thing.

But even with these limitations, I am dubious that a decent patent system could be constructed. The examiners are required to be specialists in too many disciplines, and this is clearly impossible.

Re:Keeping things equal

[blair1q]

Not true with prejudice.

Without the patent system, all scientific information becomes trade secret, locked in a vault like the recipe for Kentucky Fried Chicken, never to be seen.

Patents create temporary monopoly in order to foster creativity. First one there gets rich. First one to invent something that fils the same role better because he saw the design mistakes by reading the original patent gets rich. And so on.

Somehow, much of the software community (the amateurs; there, I've said it) have not adopted that ethic. And the result is that perfectly wonderful inventions are now micro-cent value units in the giant software packages sold by the true monopolists.

1. Patents protect you from monoplizers with the resources to encompass everything they see and who act to control markets.
2. More careful patenting of software would slow vertical enhancement but improve innovation laterally.
3. Engineers need to eat, and "free technology" means shortcutting the value created in the economy by innovation and patent.

Monopoly bad. Capitalism good. Intellectual property theft bad. Innovation good. Secrets bad. Patents all good.

Got it?

--Blair

Re:Keeping things equal

[wurp]

How many drugs would we not have today if the pharmaceutical companies couldn't patent them? I doubt seriously that 1/3 as much money would be spent on development of new drugs if they weren't patentable.

I'm not particularly pro-patent, but let's keep this in perspective.

Re:Keeping things equal

[balloonhead]

Linus' point is that he is not wilfully violating someone else's property - he can only do this if he is aware there is a patent/IP issue, but he doesn't check...

As he says, he has no problem with you violating his IP - he does not think software engineers should concern themselves with such things.

Patent law is a big issue (as I'm sure any ./ reader knows) to the OS community - the internet has broken down barriers which were there artificially before and this has accelerated (along with capitalism and the desire to make a quick buck regardless of ethics) the usual problem of laws only holding up after being suitably challenged.

If I patent software, and in 50 years we discover aliens from Mars have implemented the same thing, can I sue them, even though they couldn't have known about it? (assuming of course they haven't been intercepting our broadcasts for years...) Obviously not. How then can I sue some guy in another continent/country/state/town who happens to have had the same idea? We're not talking about the same code, or the same song, or the same book a la copyright - just the idea.

The point is there are large grey areas - the laws are there to protect someone copying someone else's work at the first person's expense, but they do not take into account that two pepole can have the same idea. What if the first person who discovered it had patented fire? ACtually, I can see next week's slashdot headline as someone realises there are no previous claimants and does so...

And the worst side of it is: the companies/people who patent things which are known about but not previously patented. That's using the whole protection of ideas thing but potentially against the original designer.

Re:Keeping things equal

[Mr. Shiny And New]

I'd have to disagree about your description of the separation between really good programmers and average/bad programmers.

I'd say that a programmer's primary job is software development, not algorithm design. Some people can write really good algorithms, but can not assemble an application. Some people aren't great at inventing new sorting methods or queue theories, but they can write code that is easy to debug, fix and maintain. That's what programming is about: developing a cost-effective solution in a limited time, while keeping future maintenance costs down. Algorithm design is Computer Science, and is not practiced by 99% of programmers.

Re:Keeping things equal

[SerpentMage]

Patents do not foster creativity. They foster ways to beat the patent and not evolve the product. This is cloning with a twist.

Will all scientific information become a trade secret? Some yes and guess what there is plenty that is a trade secret anyways. Why? because even with patents once the cat is out of the bag it is out of the bag.

Patents could have protected a small inventor from true monopolizers, but in fact the small time inventor is hurt by patents today. These days to get a world wide patent costs several hundred thousand dollars. In the EU it costs about 30,000 Euros and in the US about 20,000 dollars. This is not money that a small inventor has. However, it is something large corps can afford. And then large corps use that money to fend off competitors. In other words a big corp can be inefficient.

Now I am going to throw you a concept. Imagine that there was no patent protection and there was rampant cloning or evolution? Could an industry survive? Absolutely... Examples include, books, music, sports, fashion, food (wine, beer, spirits), etc.

All of these industries are based on selling a product to make it interesting for the client. For example how many receipes are there for mashed potatoes? But yet people buy receipe books in droves. Or what about jeans? Remember when jeans were are all the rage in the eighties and jeans were cloned rampantly? Or how about sports? First people started with simple surfing, then skate boards then roller blades, etc. THAT is true innovation not hampered by patents!

About IP theft, and wanting to eat? Gee whiz, but I think the engineers still eat in those industries. The difference is that the engineers have to actually be part of a business. A monopoly grants the inventor a license of bad business and money gouging.

Re:Keeping things equal

[SerpentMage]

If the market were truly competitive then the table would be even and hence the amount spent on the drugs would still be there. Supply and demand.

The cloning argument by the drug companies get tiring. The drug companies are gouging the clients. (Seniors go to Canada to get the same drugs as the US, but much cheaper).

The problem with patents is that it makes the table uneven. If everybody could clone everybody else then people would specialize and only do certain drugs. A company that purely clones will eventually do its own research.

Do not believe me? Well look no further than PC's. IBM started it. Compaq cloned it. According to the patent argument clones would undercut the competitors and stop evolution. But the opposite has occured. We have faster PC's with more features at a lower cost. When clone companies get larger they develop better products. Of course these better products could be cloned again.

The same can happen with drugs! A comment may be that the comparison between drugs and PC's is not correct. But the truth is that when the Asprin patent expired people are finding out all sorts of uses for Asprin. And many new and interesting facts are learned about Asprin.

Re:Keeping things equal

[gimpboy]

often times drugs and many other patentable "things" are invented by public funding and then practically given to corporations to then sell back to the people.

take for example taxol, a chemotheraputic for various forms of cancer. this drug was developed and validated using public funds in the terms of nci grants. then exclusive rights to produce this drug were given to bristol-myers. wtf? from what i've read several companies wanted to market it, so there was a market for it.

after giving this monopoly power to bristol-myers they proceeded to rape cancer patients financially. similar things have happened through out pharmaceutical industry. it's also happened to many other industries.

this is the best link i can find at the time
the other drug war

i would also hate to have to recoup the costs of a billion dollar investment. but not so much if it was the publics investment i was recouping.

Re:Keeping things equal

[macshit]

Monopoly bad. Capitalism good. Intellectual property theft bad. Innovation good. Secrets bad. Patents all good.

Got it?

Well, ... no.

Things don't seem to work the way you describe in practice. That is, there seems almost no connection between software innovation and patents.

By and large, the most patents seem to be gotten by huge corporations (who have both the resources to deal with patenting, and the extra motivation because of the `patent portfolio' concept), but they don't seem to be churning out revolutionary algorithms; since they do get patents, you can see what this implies about the quality of those patents! Whatever edge software from such companies has, is mostly due simply to the large amount of resources they have to polish it.

Morever, there is a vibrant culture of software innovation among those who usually don't patent software, e.g., academia and the free-software community.

Given the clearly harmful effects of software patents, this suggests that the current software patent system, by and large, simply doesn't work as intended.

I think there are situations where software patents are appropriate, for particularly revolutionary and hard-won algorithms. The suggestion made in other comments that they should just raise the bar substantially, is a good one.

There are also areas in which there seem (to my inexpert eye) to be more `valid' patents, e.g., fields like computer graphics.

[note that to my eternal shame, I hold a software patent; I consider it a good example of a patent that probably shouldn't have been granted (in two countries!)...]

Re:Keeping things equal

[wurp]

That's an excellent point. In my opinion, any drug that would significantly affect someone's ability to live a normal life should be available to that person at the cost of manufacture, if they can't afford the normal price of the drug. Of course, you have to make that rigorous and associate the monthly cost of the drug with a minimum monthly income, but that's easily enough done.

The only possible argument against this that I can see is that the drug companies would lose some small amount of money selling drugs to people who really can't afford them, but who come up with the money through charity, stealing, extremely frugal lifestyle, etc. Compared to the benefit of lives saved and made worth living, this cost is completely insignificant. I agree with you that pharmaceutical companies would probably recoup this cost many times over in good PR if they were to take this policy on their own, but apparently they don't see it that way. IMO it should be made part of the patent law. In fact, perhaps the rule should be that other companies can copy the drug, but they can sell it only to those who fall under the income cap. Then you don't have to set an artificial price for the drug, and you're not making patent law more restrictive, but rather less so. And, in fact, this could reduce the cost to manufacture the drug for the original company as they learn from refinements the other companies put into place. Of course, patent should still be of limited period, after which anyone can produce the drug who likes.

Hmmm... in fact, my understanding of patent law would indicate that right now I could look up the patent for the drugs and produce them in my home, if I need them. Of course, in the US it's probably illegal to practice medicine on yourself. We really have come a long way from the independent minded founders of this country.

Re:Keeping things equal

[SerpentMage]

True drugs have high R&D costs. But why is that? The reason is because the market is that way. Instead of having one drug company get approval for a drug, each drug company should get approval. This is a bit screwed up in the drug industry.

Consider a car. A car has a 3-4 billion RD budget before it hits the street. And yet cars are not protected by patents and people buy cars in droves. Ok cars are more expensive. But when you consider how complex a car actually is it is pretty cheap. But when a car maker releases a new car that car has to be approved in each country of sale. It is not as if Ford could get approval for all cars in the industry.

Drug should be the same way. A large amount of the cost is the testing and making sure it is safe. A clone drug maker should not be exempt from those costs, like GM is not exempt from having to get approval of their own vehicles. Fair is fair.

Once clone drug makers actually have to get FULL approval then I think clone drug makers will think twice on the drug they want to clone.

Re:Keeping things equal

[einhverfr]

Patents has NEVER brought anything good to society. All patents do is create a monopoly.

With all due respect I disagree. One of the real benefits to a patent system is that inventors are forced to document their inventions so that when the patent expires, society gains knowledge of this process. In this way, patents really do contribute to the intellectual commons of our society in many areas. I think that it is very easy to use our totally unballanced patent system as an argument against patent systems in general, but with all due respect, that is like based on the history of Maoism, we should get rid of governments.

Software is NOT helped by current patent law in the US, and even Biotech is running into problems because our patent system has lost its balance. Rather than encouraging people to obfuscate their inventions, lets work at correcting patent law.

Re:Keeping things equal

[wurp]

Excellent point. If we really wanted to investigate this, we should look at countries that have strong patent laws versus weak ones, and see who performs better in practice.

Re:Keeping things equal

[blair1q]

Microsoft wouldn't be Microsoft the Monopoly if people had patented more of their software in the beginning. Or if Xerox PARC had enforced theirs properly.

--Blair

Re:SGI

[masonbrown]

I don't think this is about SGI holding patents over their heads, but the kernel developers diligently checking existing patents before violating them.

I'm sure that'll look real good.

[bsDaemon]

"look everyone, them there linux varmints are pirates and theives!! patent infringers!! patent infringers!!" And of course, Linux is the "respectible" free UNIX w/out the Devil on their shoulders, so obviously the BSD people must be worse then. It'll adversely affect all of the free software community and make Microsoft look "right" -- free/open software is for pirates and h4x0rZ and shouldn't be trusted w/ your business.

Re:I'm sure that'll look real good.

[southpolesammy]

Hmmm....if that's not the pot calling the kettle black, then I don't know what is...

Re:I'm sure that'll look real good.

[bsDaemon]

What do you mean by this?

Re:I'm sure that'll look real good.

[Eil]

I do believe he missed the bleeding sarcasm.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Kernel developers don't have to worry

[owlmeat]

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.

Re:Kernel developers don't have to worry

[capologist]

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.

Re:Kernel developers don't have to worry

[ToasterTester]

Even if what you said was true it would be terrible for Linux future. If Linux was only used for home or hobby use it won't survive. Linux needs businesses use for the R&D that a developer sitting at home can't do. Corporate support should also bring about more QA that Linux needs.

Re:Kernel developers don't have to worry

[Eil]

Well I guess that puts to bed most of the retard patent arguments presented here on slashdot.

It quite clearly states that just making something that's covered under a patent is illegal. It does not matter much whether you sell it, try to sell it, give it away for free, just show it off, or keep it hoarded away in your basement in a chest with 15 locks. If you have developed something that violates a patent, you can be prosecuted in full accordance with the law.

More chillingly, note that it also states that using an unauthorized patented invention (device, idea, algorithm, etc) makes you just as liable for patent infringement as it does the creator of said unauthorized invention.

And, perhaps of lesser importance, it also makes wholesalers and resellers liable for damages if they unknowingly sell something that infringes on a patent.

Kinda puts into perspective how the phrase "a free country" really ought to be "a country for businesses to freely exploit via the government."

Obvious Strategy

[pete-classic]

1. Ignore patents.
2. If you get sued:
a. Replace the infringing code with code that does not infringe on that particular patent.
b. Sit back and watch patches back to the infringing code appear.
3. Laugh as the corps realize that they are completely ineffective.

We now return you to your regularly scheduled revolution.

-Peter

Re:Obvious Strategy

[Gaccm]

except that companies can sue for loss of income because of it, and tht isn't something you can just patch away. The thing is, who would have to pay is the real question, the maintainer or Linus, or some anonymous person that sent in the actual infringing code?

Re:Obvious Strategy

[pete-classic]

Could you be just a hair more verbose?

If you mean that someone (Linus?) can't be sued I am skeptical.

If you mean that a portion of the Linux kernel can't be replaced with non-infringing code you are clearly wrong. The case in point here is the Linux VM, which has been replaced en masse several times in recent memory. In fact, earlier this year the -ac kernels had a whole different VM than the "official" kernel.

If you mean something else I'm at a loss.

-Peter

Re:Obvious Strategy

[dbretton]

sue em all

let the court sort em out

Re:Obvious Strategy

[pete-classic]

To quote myself:

a. Replace the infringing code with code that does not infringe on that particular patent.

What does "particular" mean on planet AC?

Any feature that can't be re-implemented without infringing on the particular patent being worked around can be removed, and then clandestinely patched back in by individual users. Hell, most of the time it could be done by a binary module against a particular distro's stock kernel.

-Peter

Re:Obvious Strategy

[pete-classic]

Do you think Linus can afford that?

I interpret this fact in the opposite way that you do. The fact that he can't pay any likely judgement means to me that he is pretty safe from being sued.

Let's look at the question "who do you sue?"* The obvious choices might be:

1. Linus Torvalds. Bad choice. I don't have any reason to belive that he is independently wealthy. Strong chance any case that approaches success will cause him to move out of the country. Good money after bad.

2. J. Random Hacker who wrote the infringing code. Probably has even less money than Torvalds, but might be smart enough (and have enough time on his hands) to keep your lawyers pretty busy. Good money after bad.

3. Red Hat. Sorry, they have enough money for a couple of decent lawyers, but not enough to make good on a big judgement. They are also smart enough to make all sorts of "good faith" efforts as soon as the issue comes to light that the courts would probably look pretty favorably upon. Good money after bad.

4. IBM. Could litigate SGI or some "patent house" out of existence before any judgement would have to be paid, even if clearly in the wrong. Probably without having to retain any outside help. Corporate suicide.

Not much of a field of choices.

-Peter

* Microsoft's (and MS supporter's) FUD of "who do you sue?" is not supported by the above arguments. The reason is that when they say "who do you sue?" the answer is "no one." The do this to create the impression that if you use commercial software there is some non-null answer. My statements above aren't relevant to this impression, but I belive that there isn't anyone to sue. I am not aware of any company that has successfully sued MS for damages caused by their shoddy software.

-P

Re:Obvious Strategy

[pete-classic]

Comeon, man. I resisted the urge to do that in my initial post, trying to make /. a better place, and you have to go an ruin it! ;-)

-Peter

Re:Obvious Strategy

[pete-classic]

You idiot. I sure the kernel crew have not decided on that as a plan.

You seem to be missing a verb.

However your post might be cited as proof otherwise in a court case.

What the hell are you talking about? I'm not a kernel dev. Can you prove a kernel dev read my post? Are you wearing an aluminum foil hat right now?

So what's the logical solution? Ether stop coding or stop looking at patents.

Well, this is the only marginally intelligible thing you have said. Sadly for you I never suggested that they should look at any patents, so your point seems to be in rebuttal to a non-existent argument. In fact, let me remind you that I said "1. Ignore patents." Perhaps you thought that by "Ignore" you thought I meant "actively research?"

You might want to work on those language skills, AC.

-Peter

Re:Obvious Strategy

[pete-classic]

Oh, I see the problem, you have no fucking idea what linux is.

Linux is a kernel. Mozilla is a program that runs on a Linux system (among others).

Linux provides things like memory management, filesystem support, hardware device support, etc.

So, to use an example that is actually relevant, say it becomes impossible to have kernel NFS support without violating a patent. Remove it. Then some dude will make a patch that puts it back in. Simple.

To summarize: Get a fucking clue, get a fucking login, then get back to me.

-Peter

Re:Obvious Strategy

[pete-classic]

In fact, companies with patents have a different motivation or strategy when it comes to patent litigation. They don't think "Who can I sue to maximize my payout" they think "Who can I sue to protect my intellectual property". The fact that Linus has no money to give in terms of damages means nothing. They will want to get their patented technology out of Linux, lest they risk having this free technology outmarket their own products and in the end hit their bottom line.

Re-read my previous post.

First, it is clear as day to me that suing Linus would be equally effective in "get[ting] their patented technology out of Linux" as arresting that kid that cracked DCSS was in containing DCSS. Namely; not at all. It might get it out of the "official" tree, but how do they stop every two bit UNIX hack that knows how to use diff and patch and has an internet connection from distributing/using patches? Can't be done.

What does anyone (i.e. SGI) stand to gain by suing Linus? NOTHING. Ill will. Linux is eating SGI's lunch in the movie industry right now, and it would just look like sour grapes. "He's giving away what we are unable to sell! We want to make his kids homeless!" Not good.

I'm not a patent attorney, but I am pretty sure that patents don't hold the same "dilution risk" that trademarks do. IOW I think it is perfectly acceptable to go after only select violators of your patent without it weakening your claim.

-Peter

Not a big deal. Don't worry.

[swagr]

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.

Re:Not a big deal. Don't worry.

[Florian Weimer]

Are you sure that European patents have no effect in Malta? ;-)

It seems that the EPO council has got a member from Malta...

Re:Not a big deal. Don't worry.

[Khalid]

For the moment software patents are still not allowed in Europe. The semantic jesuitic distinction of "Patents with technical effect" has been invented for the moment (when, or if) patents will be allowed.

There is a European directive now in preparation, some battles have been lost but not the war.

Re:Not a big deal. Don't worry.

[Florian Weimer]

People already start trying to enforce software patents in Germany. The EPO has issued a lot of patents which can be infringed by software running on a general-purpose computer. Some of them already held up in court. We'll see what happens if someone starts sueing based on one of those modern, trivial patents. It certainly can ruin your day if you are the victim.

Re:Not a big deal. Don't worry.

[swagr]

Looks like people took me too seriously. //BEGIN SARCASM
The patented parts of the kernel were deveopled in Malta, Egypt and Madagascar where no one holds said patents. //END SARCASM

My point was that Linux was developed globally, so who knows whether "int i=7;" was typed in Berlin or in Montreal.

Re:Not a big deal. Don't worry.

[tiny69]

This is a big deal. All of the distributions are selling and providing precompiled binaries and packages ready for installation and use. If they have to start removing sections of the kernel (say for instance large portions of VM) because of patent problems, then Linux in general has some very serious problems.

Patent issues have already caused problems with the way distributions distribute packages. I recently ran across a problem in Slackware because IDEA and several other cyphers were not compiled in to the openssl packages because of a patents.

From the SlackBuild script used to create the packages:

# These are the known patent issues with OpenSSL:
# name # expires
# MDC-2: 4,908,861 13/03/2007, not included.
# IDEA: 5,214,703 25/05/2010, not included.
# RC5: 5,724,428 03/03/2015, not included.
./config --prefix=/usr --openssldir=/etc/ssl 386 no-mdc2 no-idea no-rc5

From the README in openssl-0.9.6e:

PATENTS
-------

Various companies hold various patents for various algorithms in various locations around the world. _YOU_ are responsible for ensuring that your use of any algorithms is legal by checking if there are any patents in your country. The file contains some of the patents that we know about or are rumored to exist. This is not a definitive list.

RSA Security holds software patents on the RC5 algorithm. If you intend to use this cipher, you must contact RSA Security for licensing conditions. Their web page is http://www.rsasecurity.com/.

RC4 is a trademark of RSA Security, so use of this label should perhaps only be used with RSA Security's permission.

The IDEA algorithm is patented by Ascom in Austria, France, Germany, Italy, Japan, the Netherlands, Spain, Sweden, Switzerland, UK and the USA. They should be contacted if that algorithm is to be used; their web page is http://www.ascom.ch/.

Re:Not a big deal. Don't worry.

[Courageous]

You're quite mistaken about the bigness of the deal. A large corporation with an investment in Linux could quite easily be gone after for license fees or be serviced with a cease and desist order. It's only a matter of time before these sorts of patents come out of the woodwork, actually.

C//

Re:Not a big deal. Don't worry.

[Alan Cox]

The best answer I've seen to the whole question came from a developer who made one very good point

"Why worry about the US, its only 4% of the population"

I guess the fact he was chinese gave him a rather more balanced perspective on life. For the SGI patents it appears that SGI have already shipped code under the GPL using those patents so it should be a non issue.

However in the USSA you cannot simply ignore the problem. A kernel which is known to violate patents isnt shippable by vendors, and Debian would have to cease using it in the USSA too. Debian is going to be in a tricky position if the kernel is in the non-US packages.

Could we end up with a world where the US is the one nation that can't use free software - ultimately thats quite possible. After all the US has many other fields where some large corporations systematically obliterated any small competition.

Re:Not a big deal. Don't worry.

[fferreres]

>Not a big deal. Don't worry.

Great, so IBM can't sell it, it can't be used for embedded systems, Red Hat has to take those parts out if they want to sell it, etc.

Let's not worry...because who needs to comply with the law. Law can't harm us. To defend the GPL, ah law is good. To comply with it in other areas, ah law is bad.

Seems a bit naive or childish to me. What would be nice would be to play by the rules and have something like an Open Patents system, where royalties would go to finance OSS or maybe no royalties at all: just to make sure people nobody can abuse their patents (ie: if somebody MUST use some Open Patent, they have to allow any Open Patent member to use their patents, or something in that line of though).

Claiming the problem is not there when it actually IS there is not good. It may be a strategy for something else, but not a strategy in itself.

Re:Not a big deal. Don't worry.

[Courageous]

I'm not quite sure what you're talking about. I was referring to the tendency for intellectual property rights holders to sometimes eschew the distributor (where the risk of patent contention is higher) and to go directly for consumers of the distributor. For example, an IP company could come along, notice that AT&T has 10,000 Linux workstations deployed, and ask for a 10$ per seat licensing fee. Since the cost finding an alternative and then deploying it is so high, the customer could cave. This is actually a trend in intellectual property. Happens all the time. The trick is to be _reasonable_ in your licensing terms (where "reasonable" is in the eye of the beholder, I'm sure, but $100K is piss money to AT&T).

C//

why

[Syre]

Why post this on slashdot?

If anyone at SGI knew about this and wanted ignore it, now they can't because it's too widely publicised.

Who is sued?

[jmv]

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.

Re:Who is sued?

[Stonehand]

The source code certainly is a product in its own right -- hell, it's even got its own license, it's distributed widely in a separate package, it's often included on CDs as such, so yes, the developers should bear responsibility.

Of course, so should the users... perhaps less so, but still some, and they should cease and desist using infringing code once it's been identified.

Re:Who is sued?

[Sloppy]

This brings up an interesting question. Who gets sued in this kind of situation?

Beats the fuck out of me.

Since the software patents that I've seen (not these) were patents on "device that does x," then maybe the infringing party is whoever owns the computer that is running the offending code. Or maybe it's whoever manufactured the hardware that the offending code gets run on.

This stuff doesn't make sense.

Re:Who is sued?

[demaria]

"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?"

All of the above! :o)

Re:Who is sued?

[kcbrown]

This brings up an interesting question. Who gets sued in this kind of situation?

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).

Oh, this is good press....

[jhines0042]

"...or you just hire a hit-man to whack the stupid git."

Is it just me, or is this very immature speach? It certainly doesn't do anything to make me respect Linus.

Re:Oh, this is good press....

[swagr]

Is it just me, or is this very immature speach?
The one sure rule of existence is "do whatever you want and live by the consequences".

If Linus wants to hire a hitman or talk about hiring a hitman. Let him do it and see what happens. People have done worse.

It certainly doesn't do anything to make me respect Linus.
You should watch yourself, or you might be on that hitman's list.

Re:Oh, this is good press....

[jhines0042]

You are absolutely correct AND you have the guts to post not anonymously.

Re:Oh, this is good press....

[Bruce Perens]

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.

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

Re:Oh, this is good press....

[jhines0042]

Amen Bruce, Amen.

Of course notice how we get flamed just because we disagree with the "master".

Re:Oh, this is good press....

[RadioheadKid]

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.

Re:Oh, this is good press....

[Daniel Phillips]

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.

Re:Oh, this is good press....

[Christianfreak]

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.


Have you ever seen a legal document? How they define everything so very very carefully and add lots of redundancy is put in? Why are they like that? Because Lawyers will exploit any loophole they can to win a case, it's what they get paid the big bucks to do.

So in this case, even though we all know Linus is joking it could be used against him ... just think about it from the court's point of view:

Lawyer: Mr. Torvalds did you on xxx date say 'you would hire a hitman against anyone who would sue you over patents'

Linus: I didn't mean it.

Lawyer: Just answer the question, yes or no.

Linux: Yes.

Lawyer: As the court can clearly see Mr. Torvalds has so little respect for the laws of this country that he would even have those opposing him killed ...

Its ridiculous yes but it could happen... I agree with Bruce on this one.

Re:Oh, this is good press....

[bigpat]

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.

Re:Oh, this is good press....

[Bruce Perens]

Actually, it's up to people like you, Bruce, to take the lead.

And I will. But it really grates that not only does Linus not help, once in a while he does something negative (like his rant about ideology a while back). I could use a lot of help, not only from you, but from people who get as much publicity as Linus. We're not winning the battle, you know.

Thanks

Bruce

Re:Oh, this is good press....

[villoks]

C'mon.

One might have thought,that you would have already learned the style Linus uses in his mails. He was JOKING and from time to time he uses quite strong expressions (we don't believe so much in political correctness in Finland..) And this wasn't any kind of official statement, just one of his hundreds mails to the list. Linus actually later also pointed out that:"I'm not a lawyer, and I suspect this may not be legally tenable advice. Whatever. I refuse to bother with the crap."

Linus has in other circumtances made his position on software patentents absolutely clear. Open Source / Free software movement has other persons who are not nearly as good kernel hackers or kernel "project managers" as Linus is - it makes more sense that these people do the political stuff.

V.

Re:Oh, this is good press....

[villoks]

Oh well.

If your defence lawyer is so ineffective that she or he can't prove that it was just a joke, you have very good bases for a malpractise case afterwards. It's nice that some people dare to use more colorful language because otherwise world would be extremely boring place. If everyone followed your suggestion "never mail anything which may be misunderstood in a theoretical court case", there wouldn't be any free speech left...

V.

Re:Oh, this is good press....

[Cyclops]

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.

I fear you think too small and that moderating you as insightfull or even interesting is excessive. However, you do have a point, it's better suited for RedHat (who pays the income of some kernel developers like Alan 'just-as-important-if-not-more-than-Linus' Cox) and others, who _are_ able to pay for developers to dedicate full time into Free Software.

Think broader... Anyone who can gather a 'troop' of faithfull fans has a moral obligation to incentivate the fans into cooperating into the creation of a better world. Look at some other famous people like late Princess Di.. I don't give half a cent for monarchy but she used her fame to promote public awareness of a lot of important issues. Why shouldn't Linus? Alan is trying to (as far as he can... remember the DMCA protest he did some kernel version back?).

Think broader...

ps: I do sure hope APPL doesn't sue me, no!

Re:Oh, this is good press....

[Bruce Perens]

Yes, I understand it's a joke. But Linus and I can no longer say anything in a public venue without the risk that it will be quoted out of context, and he has left himself wide open for our enemies to quote him that way this time. I learned this lesson in a painful manner - once I suggested on a Debian list that we sue Corel for license violations. My comment was the subject of a Slashdot story half an hour later. Same for Linus this time.

Thanks

Bruce

Re:Oh, this is good press....

[Eil]

It certainly doesn't do anything to make me respect Linus.

I highly doubt Linus ever asked for your respect.

Thank you.

Re:Oh, this is good press....

[bigpat]

said -> wrote

Re:SGI

[Anonymous Coward]

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.

What Linus is saying

[Anonymous Coward]

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.

Re:What Linus is saying

[HiThere]

The problem is "Can you afford a lawyer to defend yourself?"

I suppose that if you win it's cheaper than the alternative, but you won't get your money back.

Re:What Linus is saying

[edhall]

I think there might be a problem with Linus' attitude. He, and other kernel developers, have already been informed that certain code probably violates SGI's patents. In fact, there is considerable public record of this in the form of mailing list postings. Given that he has received and acknowledged this information, it is entirely possible that a court would consider infringment to be willful even if he refuses to verify the patents concerned. Prior to this public discussion he probably could have claimed that any infringment was innocent. I think that he's lost the ability to make that claim.

IANAL, but IMHO Linus should be talking with one. I understand his extreme frustration at a situation that almost all of us agree is, at root, ridiculous. But it's also unfortunately a serious situation as well. He needs legal advice.

-Ed

Re:What Linus is saying

[timeOday]

The only way to NOT "ignore" the patents would be to hire an army of lawyers trained as kernel hackers (or vice-versa) to read and comprehend the entire kernel, then scour the patent database for conflicts. Even this would guarantee nothing, since it all boils down to personal interpretation.

Not time to condemn yet

[xant]

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.)

Re:Not time to condemn yet

[jackb_guppy]

Nor does it make it right for a company to patent simple processing.

The method they patented, if you removed reference to memory, would also cover:

1) Forward and Backward pointing link list
2) Node Balancing in B-Trees

And that is just the tip of iceburg.

It is time to remove US Patent Office from the software business, they have proven over and over they inability to allow only real inventions in software development. Else the other chose could be is require the Patent Office and its examiers to pay ALL cost and triple damages when they fail to do their jobs.

Re:Not time to condemn yet

[russotto]

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.

Re:Not time to condemn yet

[DoctorFrog]

And there's no obligation for the lawyer to be anything but an advocate for his client

Not true. Lawyers are also officers of the court. They are not allowed to encourage their clients to break the law; thus, IP lawyers might encourage a client to apply for a patent if the issue is in doubt, but they are not permitted to file claims which they know are fraudulent. To do so is a breach of ethics which may be punishable by disbarment.

I agree with Linus in principle

[cOdEgUru]

Though..

If somebody sues you, you change the algorithm or you just hire a hit-man to whack the stupid git.


There should be a better way in putting the thought across. Being someone who is listened to whenever he opens his mouth, there should have been better words to put his idea across. After all, isnt this the same attitude that got Open Source / Linux advocates isolated from the rest of the world ? Do we need to do this again ?

Yes, Patents are stupid. Yes, the world deserves better. No, this was not his best words.

I guess he was just pissed.

Re:I agree with Linus in principle

[Obsequious]

> I guess he was just pissed.

Either that, or he's been playing Grand Theft Auto 3 recently.

Sue where?

[bluestar]

Each country has its own patents and patent laws. Do you sue Linus in the US or Finland? Do you sue Alan in England? The actual developer who wrote the code wherever they happen to be? Do you sue all the mirrors for contributing to the infringement?

I love OSS :-)

subtle

[bigpat]

"The fact is, technical people are better off not looking at patents. If
you don't know what they cover and where they are, you won't be knowingly
infringing on them. If somebody sues you, you change the algorithm or you
just hire a hit-man to whack the stupid git.
"

very subtle, Linus. I'm not sure what you are trying to say.

Seriously though, this makes sense. People have a finite amount of time, why waste it figuring out what not to do. Sure it might cost you some time later, but probably not.

It is a much better use of time to just do your best work and then if you happen to use an algorithm or something that you find out later is patented, then just figure out what makes sense to do then.

And just because you might be using a patented algorithm doesn't mean that you have to stop or even that it will cost money and eventually the patent will expire.

Re:subtle

[swm]

Another reason for technical people not to read patents is that courts in the United States have held that unless you are a patent attorney, you aren't competent to determine whether you are infringing a given patent.

This makes reading patents a real lose-lose proposition:

• if you think you infringe and you do infringe, then you knowlingly infringe
  
• if you think you don't infringe and you do infringe, then you still knowlingly infringe, because you weren't competent to think that you didn't infringe
  

Don't like it? Write your congressman.

Developers are not off the hook

[nuggz]

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.

Re:Developers are not off the hook

[nuggz]

Wrong. Trademark law and patent law are fundamentally different on this point.

I specifically asked a patent lawyer on this issue.
If the company knows there is infringement, and fails to take action for a significant time, then they effectively surrender their rights in that case.
The fact that people try to sue isn't proof they have a case.

IANAL

Re:Patents...

[gclef]

I thought that you could only violate a patent if you sold the resulting product for a profit.

You mean, like RedHat?

oh your so silly US

[johnjones]

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

Re:oh your so silly US

[fatboy]

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 )

As far as I know, Microsoft has never distributed Linux or any other GPL software. They can change Linux all they want. There is no GPL violation in making changes to GPL software.

Re:oh your so silly US

[xanadu-xtroot.com]

There is no GPL violation in making changes to GPL software.

True.

BUt IF the source code is released along with the resulting binaries. If M$ has taken GPL'ed code and have claimed it as their own and have not made the source available, they are in breach of the agreement.

yet again...

Absolutely right to ignore them

[Baki]

As a matter of principle. First, many Linux developers are not from the US, and software patents don't apply there (in many places). Second, ignoring them on a high-profile and highly respected project as the Linux kernel is an excellent way to show lawmakers how damaging and morally wrong these patents are. It is much clearer than whining and avoiding them, which has already been proven to be ineffective.

It would be great if, maybe in a year, with many businesses already depending on Linux (including many jobs), suddenly it turns out that Linux is heavily infringing on a number of software patents. What do you think would happen: would the US ban Linux from the US (it would remain legal in lots of other countries). That would really look good and be a huge catalyst for a public debate on this issue (it has failed to get the public's attention up to now).

And no matter what they try, noone can stop the volunteer developers all over the world. Only US businesses would be hit.

why bother?

[Anonymous Coward]

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!

Thought patents...

[SkyLeach]

Help me to understand this for a second...

Let's say someone gets a patent on a method of doing something in an OS, for instance thread scheduling. I don't know anything about this "someone", their method of schedulting threads or their patent. They get a patent on say... any genetic algorithm for discovering optimal thread schedules.

In the course of trying to make my OS better, I decide to rewrite my thread scheduling to get better performance. Let's pretend that I build a genetic tester to optimize my thread scheduling.

Now I have, through the natural evolution of thought, come accross a logical proof: I can get the best scheduling algorithm from a genetic sequence. Would I be in violation of a patent just for building on my past expierences to formulate a solution to a problem? Can people patent logical conclusions?

Re:Thought patents...

[NorthDude]

Well, that is the purpose of patents...

Anything you will ever create is a logical conclusion to a problem you asked yourself once in the past.

The problem is that it was supposed to help inventors market their new product, create new ones etc etc.

Now that the system is so messed up, big corps can patent anything they want, sit on the patent a couple of year and collect later from those infringing the patent.

And worse, the reason I don't like software patent is that the same dawm algorithm can be used in 10, 100, 1000 different situation.

And even if it serve the same purpose, if it does not violate the copyright, it is not the SAME EXACT product. it is just good ol' competition.

Well, they cannot ignore patents discovered

[GauteL]

.. the specific ones in question will probably have to replaced, or they are _knowingly_ infringing.

Then they can take this stand:
"We don't include code that infringes upon patents we know about, but we do not have time to check up on patents so obvious that we implemented it without knowing about the patent."

Re:Linus...

[SpinyNorman]

Well, the whole thread is kinda of interesting, if it ever goes to trial, it will be slam dunk for the side for "willful violation". I mean, they are actively talking about ignoring the patents, as if they don't exisit.

Well, IANAL, but I think Linus's whole point was that by being plum ignorant about whether or not any patents exist in a given area, then no one has a leg to stand on to say that you willfully violated their patent, whereas if you knew it existed then they could claim that you did.

Linus is right

[russotto]

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)

Linus gives better explanation in a follow up.

[jchandra]

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

Re:Linus gives better explanation in a follow up.

[JahToasted]

For what it's worth I agree completely with Linus. Am I, as a developer, supposed to check if someone has patented an algorithm before I start writing code? Come on, I would never get anything done (not saying I get much done anyways, but that's another story). I'm not a lawyer, so why should I be expected to know all the applicable patents to the programme I'm writing? How am I to be sure if a patent is bogus or not?

Screw that. Write the code, let the lawyers sort it out later. Most of these patents are shit anyway. Now that IBM needs linux to make money, I'm sure if someone comes forward with a patent on an algorithm, I'm sure they could take it to court and kill the patent.

Of course that doesn't change the fact that software patents are bullshit... But like Linus, I'm not worried about a peice of technology that the biggest computer corporation relies on for its business model

Re:Linus gives better explanation in a follow up.

[jacoby]

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.

Re:Linus gives better explanation in a follow up.

[greenrd]

That's why developers should never look for existing patents. You can only be held liable for "wilful infringement" if you know about the existing patent.

It's a crazy system, yes. I never said it wasn't.

Re:Linus gives better explanation in a follow up.

[swillden]

Independent invention is not a defense against patent.

A device doesn't have to be something that could only ever be invented by a single genius to be patentable, it only has to be non-obvious to an experienced practitioner. I'm sure that many of the kernel hackers are more than capable of coming up with non-obvious ideas.

That said, software patents are stupid.

Re:Linus gives better explanation in a follow up.

[WNight]

The problem is that patents are easy money. You patents something and either end up collecting royalties for valid use, or blackmail payments to make you stop trying to collect. Or, just maybe someone manages to fight your patents and beat it, but that's a small risk for a company that just declares bankruptcy if they lose.

Ignoring patents is part of the answer. You certainly can't run around giving them too much weight, or you'll do the bad guys' work for them.

But, you need to cost them enough money that it's not worth it. Open Source programmers tend to not have enough money to fight a big corp in court, so they need to do it elsewhere.

So, if your favorite OSS project gets sued, write a nasty note about it on a brick and pitch it through the company's window. If that doesn't work, use flaming bricks. ... The above message is only slightly tounge-in-cheek. When some paper-patent holding company pulls a Scientology and threatens to destroy people's lives via the courts, they don't leave people much choice. People *will* fight back. If you use a corrupt system to deny them the chance, they will go outside the system.

Hmmmm, speaking of Scientology, maybe next time Adobe gets someone arrested, or whatever, people can file nuisanse lawsuits against the company that did it. Doesn't matter what, as long as it sounds valid enough that a judge has to look at it and the corp has to send lawyers to defend against it. Hear that HP? Back off the stupid DMCA threats.

Re:Linus gives better explanation in a follow up.

[photon317]

The underscores are quite traditional for emphasis, dating back to the earliest of crappy BBS networks and early internet.

Quoting Linus

[unformed]

Actually, we can, and I will.

I do not look up any patents on _principle_, because (a) it's a horrible
waste of time and (b) I don't want to know.

The fact is, technical people are better off not looking at patents. If
you don't know what they cover and where they are, you won't be knowingly
infringing on them. If somebody sues you, you change the algorithm or you
just hire a hit-man to whack the stupid git. (emphasis mine)

Quality choice of words; now not only are we evil copyright violaters, we're murderous villains as well.

Although, I must admit, my already tremendous amount of respect for Linus just went up a notch. ;)

Re:Quoting Linus

[Lemmy Caution]

Although, I must admit, my already tremendous amount of respect for Linus just went up a notch. ;)

Not to mention fear. I half-expect to wake up to find a severed header (horse.h?)in my bed.

Re:Patents...

[nuggz]

I thought that you could only violate a patent if you sold the resulting product for a profit.

No the damages can also be the reduced market price.

Lets say you sold viagra for $0.02/pill, this would make the market think it is only worth 2 cents. Whoever owns viagra would then have to sell it for pennies a pill, not dollars, they are now making many dollars per pill less because you decreased the perceived value of their product.

You lowered the value of their asset, you owe them for damages. The money they won't make for you.

That being said, it would be hard to argue that the improved VM code of linux lowered the selling price or sold volume of Irix.

I Have a question

[sinan]

Assume that you are an organization ( corporate or educational) that has the source code for Microsoft OSs under the shared source program. As you go thru it you find that they have violated patents/licenses. What are your obligations as to the reporting of this to legal authorities, and if you do , then are you protected under any whistle-blower acts, or are held criminally responsible under nda or shared source license. I am really curious about this.

Re:I Have a question

[sysadmn]

IANAL either, but a contract can be found to be unenforceable if it is against public policy. On the downside, you'd still have to go to court to prove that enforcement would be contrary to the public good.

Re:I Have a question

[Eil]

That's a pretty good question. I would imagine that if you tried to report it M$ would whip you into court faster than you can say NDA. Even though they are probably in the wrong (I would think copyright / trademark / patent infringment takes precedence over an NDA), you could never afford to defend yourself and M$ knows that. They just want you to shut up and they'll do it any way possible.

Workarounds

[Groo Wanderer]

There is a simple solution to this, or maybe not so simple. When you submit anything to the kernel that might be patented/copyrighted/whatever, you must also submit a workaround, or a functional equvalent that is not copyrighted. It doesn't have to be very good, complete, or as fast, but it needs to work. That way, if a large corporate entity decides to sue, or get an injunction against you, there is a quick way out. Imagine if a fundamental part of the kernel needed to be removed in, oh, say, an hour. How pissed would you be if linux no longer worked, or could be downloaded for the 2 weeks it took for a team to valiantly push out a fix? I would be livid. Worse yet, if I was a CIO, I wouldn't touch linux with a 10 foot (~3.3m) pole ever again.

If there was a nearly complete workaround that could be put into place quickly, then the 'we'll ignore it until we get a piece of paper with lots of lawyers names at the top' strategy might work. I could live with a 'patch this for a 25% speed reduction coupled with a 100% lawyer reduction a lot more than a 'stop it now' for a month, and then only a 5% speed reduction. The key is to keep things working while corrections are being made.

For the trolls out there, I know you can keep using the binaries you allready have, and there will probably be MORE mirrors after a lawsuit, but I really want to keep things legal, as I am sure most readers here do. Corporations HAVE to. A good backup plan is worth more than a little grey area now and again.

-Charlie

Re:Linus...

[Florian Weimer]

I don't think it makes much difference in most countries if you infringe a patent deliberately or negliently (or because of ignorance).

Independent discovery?

[strredwolf]

Isn't there a clause in patent law that allows for independent discovery? If one person, unrelated to any patent, recreates the patented item without any outside aid, shouldn't that be excused?

What a load of crap.

[Royster]

It's people distributing the kernel in places where the patents are valid who could get bitten by this. It matters not where the code was written.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Linux Patent Infringement Legal Defense Fund

[billtom]

How about this:

1. If the kernal maintainers think that a patent is not defensible (prior-art, obviousness, etc.) then they should go ahead and violate it.

2. We use community peer pressure (no really) to force the commercial linux distributors to set up a linux patent infringement legal defense fund supported by a small fixed percentage of the purchase price of the distribution.

3. And make it clear to all the tech companies that we'll spend every penny in the fund on lawyers to attempt to overturn any patents that they try to enforce against the kernel.

You sue the deep pockets

[Royster]

IBM, SUn, Red Hat, Caldera...

Anyone with assets in the US who distributes Linux.

It has harmed SGI

[jpmorgan]

That being said, it would be hard to argue that the improved VM code of linux lowered the selling price or sold volume of Irix.

By improving the quality of Linux's VM, it created less of an incentive for commercial renderhouses to use IRIX, and consequently SGI's hardware. Why buy an expensive SGI box when you can put together a cheap little Linux renderfarm on commodity hardware? For example, see this.

Depending on how important the patented bits of code are (and from the looks of it, they're quite important), I'd say that on the surface SGI could make quite a case that the infringement of its patents has had an appreciable affect on its bottom line.

Re:It has harmed SGI

[nuggz]

Depending on how important the patented bits of code are (and from the looks of it, they're quite important), I'd say that on the surface SGI could make quite a case that the infringement of its patents has had an appreciable affect on its bottom line.

And now enter the lawyers arguments. If this caused you so much damage, why did it take years before you complained of the infringement. Why didn't you inform the offender.

Re:It has harmed SGI

[jpmorgan]

'We didn't know they were infringing on our patents until now'

You have one set of people at SGI who know about the patents in question. You have another set of people who know that Linux is implemented using those techniques (but not that they are patented). You have another set of people who would care if about Linux's infringement of the patents.

I've no clue how large the sets are, but if there was no intersection of the three (which is very believable), then this could be the first time that there are people at SGI who a) know about the patents b) know about Linux's use and c) give a damn.

Re:It has harmed SGI

[nuggz]

'We didn't know they were infringing on our patents until now'

Which is why patents are published, so that you do know.

Just like laws, you might not be told of every new law that affects you, but they are published, and you are responsible for following them.

Ignorance of the law is not a defense.

Re:It has harmed SGI

[Znork]

Patents are not laws. And with patents it doesnt matter wether or not you've read them; without being a patent lawyer you are not regarded as being competent to decide wether or not you're infringing, so reading them is rather pointless anyway.

Ignorance of the law is not a defense, but in the case of patents you have no choice. You can either stop developing software, or you can try to ascertain wether or not something you invented violates a patent (which you cant legally ascertain anyway so you just end up with a willful violation instead) which ends up worse than pointless or you can ignore the issue and hope you dont get legal action your way.

patents and Mutual Assured Destruction

[mikeee]

The big hope here, clearly, is for Linux developers to go ahead and do the obvious, and if some poor fool tries to sue over his VM idea being used in Linux, then Tux's Uncle IBM will drop mention of the umpty-three bajillion silly IBM patents they're violating, and the whole thing will go away.

Bonus question: if I attempt to enforce a patent used in GPLed code, what happens? Do I lose my rights to use/distribute that GPL code? Is the copyright and GPL on that code unenforcable?

Re:patents and Mutual Assured Destruction

[mikeee]

Section 6 of GPL says:

"You may not impose any further restriction on the recipents' exercise of the rights granted herein."

I read that as you can't distribute GPLed software if you are enforcing a patent you hold on it against that software - no patented RH Linux, patent licenses $50, are allowed. OTOH, if SGI (for a silly example) tried to enforce patents against Linux, RH or IBM could try to enforce theirs against SGI; and SGI would not be
able to distribute Linux, or, probably, enforce their claim at all if they had previously distributed Linux using these features. Hm. This probably is true, actually, of SGI...?

Re:patents and Mutual Assured Destruction

[Eil]

Bonus question: if I attempt to enforce a patent used in GPLed code, what happens? Do I lose my rights to use/distribute that GPL code? Is the copyright and GPL on that code unenforcable?

The way you worded this makes it a little fuzzy. Who owns the patent? If it's someone else then you merely pay up the license fee or remove the afflicted code that infringes on the patent.

If you own the patent, then everything proceeds as normal: you keep your patent, your copyright, and your GPL license.[1] Even though having your patent-covered code licensed under the GPL removes certain provisions that patents are meant to provide, other programmers can not use the idea illustrated in your patent unless they cut-n-paste your GPL code into their similarly GPL'ed project. Where patent law and the GPL directly contradict, I would expect patent law to win out in a court.

1. Note that anyone doing anything as blatantly idiotic as this would probably one day find a seething, red-eyed crazed Richard Stallman weilding an ax on their front doorstep.

Re:Linus...

[Khalid]

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) :)

Clean Room

[haplo21112]

In the long run the Linux Kernel, is probably Ok, much as the *BSD kernels are probably ok. While SGI might hold a patent, in general if one can prove that their implimentation was developed without knowledge of the or assitance from the patented stuff...its OK. Thats why we have the PC environement we have today. In general replicating function is OK, its the outright theft of code thats NOT ok. We have record in the LKML that the rmap stuff has been developed based on ideas in the *BSD kernels if I remeber correctly. I think that Puts the Linux Kernel in the clear.

Re:Clean Room

[rsidd]

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

Re:Clean Room

[Eil]

While SGI might hold a patent, in general if one can prove that their implimentation was developed without knowledge of the or assitance from the patented stuff...its OK.

It's not okay, since the person who annouced the proposed change to the kernel mentioned that he got the information directly from an SGI whitepaper... whose purpose was to describe an algorithm that SGI had patented.

For Jordan Hubbard's take on patents and FreeBSD..

[rsidd]

see here.

Infringment starts ..

[nuggz]

Infringement starts at publication, not notification of infringement.

Lets say I infringe on your patent today.

The USPTO publishes in 6 months, that is the date that matters. If it takes you 6 more months to notify me of my infringement is irrelevant, the patent is already published, upon it being granted I am liable for damages from the published date.

IANAL, this is my understanding.

Re:Linus...

[Lemmy Caution]

No, it says that by as a matter of principle never checking for patent infringement for solutions you've come up with independently, you are protecting yourself from the possible charge of infringement. This is really a case where ignorance is, if not bliss, the basis of a good case against a bad patent.

Incidentally, in what countries are software patents still not recognized? (i.e., "where is the future of Linux and free software development?")

This is the EU

[oliverthered]

How can software patents be applied in the EU when at the moment there are no such things as software patents in the EU.

Re:This is the EU

[Eil]

How can software patents be applied in the EU when at the moment there are no such things as software patents in the EU.

Easy: they won't be. You have nothing to worry about, please resume your normal business.

We Americans, however, have about a million miles of hot stinking shit to wade through every day thanks to our corrupt patent office, corrupt government, and severely corrupt businesses.

We should use this to stop patents in Europe

[tstoneman]

Linus, this isn't Europe. By publicizing your opinions on the Internet, and since you are the maintainer that sees what goes into the codebase for Linux, you are probably personally liable for any patent infringement.

You are completely exposed to this liability and to the courts, it's a clear cut as if you went and robbed someone with 10 witnesses plus video tape. What if Microsoft bought the patents, and then sued Linus? This would be a perfect way of killing off Linux as we know it.

Unless you moved yourself and the code back to Europe where I believe there are no patents on software (yet...) I believe that you MUST follow the rules for US patent law.

Actually, this might be a good case for why Europe should not adopt software patents. If Linus were to publicize the problems that he encountered because of software patents and especially American software patents, maybe that would stop the Europeans from implementing them. This is because Americans have had a leg-up on the Europeans due to the already-patented software patents, and could use all the patents they currently have to block European software development, much like Linux kernel development is being blocked by patents. Maybe this is just the thing we need!

Re:We should use this to stop patents in Europe

[jmichaelg]

What if Microsoft bought the patents, and then sued Linus? This would be a perfect way of killing off Linux as we know it.

Microsoft already bought the SGI patents for $62.5 million. Looks like the "git" that Linus will want to hit is Bill Gates.

Back in the mid 90's when the Patent office was holding "hearings" in San Jose on whether to start issuing software patents, the overwhelming testimony from software engineers was "please don't do this." The people testifying in favor were attorneys - neither of which have a clue as to how code is created.

It was clear at the time that software patent hearings were a pro-forma farce.

Re:We should use this to stop patents in Europe

[Eil]

Err, I thought M$ bought only the patents relating to OpenGL, not kernel implementations?

As long as you only distribute source code

[mocm]

there shouldn't be a problem. The code just documents the method of the patent which is not infringing. Private users and educational institutions should also have no problems, that's what patents are for.

Why I think they should proceed

[Vicegrip]

If anybody sues over 'patent infrigements' in the kernel I'm sure IBM, which has quite an investement in Linux, will likely be more than pleased to have a nice little "lets see how many of my patents you violate" discussion with them.

As for the 'insightful' individual who equated copyright violation with patent infrigement.... gads, if you can't tell the difference between copying somebody else's work and implementing an idea which possibly might be covered by a patent, then obviously you are clueless. So let me explain it to you.

Copyright: you can't sell a copy of this work I've written-- the work belongs to me.
Patent: nobody else can use this idea because I own it.

Knuth was incredibly insightful in his warnings to the patent office regarding the problems software patents would cause. I dearly hope software patent terms are drastically shortened in the immediate future because this concept of owning algorithms is going to stifle software innovation to a creeping snail's pace.

Simple Remedy

[SparkyUK]

IBM is putting big money behind Linux and OpenSource in general right? A threat to the Kernel is a threat to IBM.

I wouldn't want to go toe-to-toe in a tit-for-tat on patents with Big Blue, no siree.

Re:Patents...

[whovian]

You lowered the value of their asset, you owe them for damages. The money they won't make for you.

Yeah, but that could simply be called capitalism.

One obvious counterpoint to my comment is the undercutting of the competition by using monopolistic practices. I don't know how that gets decided rigorously (if possible). But I think there is a range of company behaviors, ranging from your Starbucks and Borders who some say undercut the local mom-and-pop stores, to places like Walmart who some consider to be a very good competitor due to the sheer volume of product they can push. I guess it comes down partly how the public perceives the companies' actions and partly on the legality of the marketplace practices.

Perhaps IBM could help?

[Sanity]

The normal way for a large company to deal with these is "defensive patents". Bill Gates emails Steve Jobs and says "hey, you are infringing on 20 of my patents", Jobs replies and says "yeah, well you are infringing on at least 20 of my patents, go away" - deal done. Now IBM has more software patents than anyone else, and they have a vested interest in keeping Linux around and healthy, so perhaps they could use their patent portfolio defensively to protect against attacks on Linux or its developers.

Re:Linus...

[Znork]

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.

Re:Linus...

[lemonhed]

I don't think it makes much difference in most countries if you infringe a patent deliberately or negliently (or because of ignorance).

Actually it does. In the US if you *willfully* infringe, you are liable for treble damages from the moment you first knew of the patent. If you did know of the patent, you are obly liable form the moment you found out about the patent.

Once most people find out about a potential infringement, they will obtain a noninfringement opinion from a law firm. This way they can rely on the law firm's opinon that they dont infringe until a court says otherwise.

Re:Linus...

[mesocyclone]

Legally, a grant of patent by the PTO gives a presumption that the patent is valid. We know that this is dumb, given PTO actions, but it *is* the law.

The Linux problem is only the tip of the iceberg. It is true what you say that you can hardly write a single line of code without violating a patent. This is going to have much bigger impact on most slashdotters than all the stupid DMCA and other anticopying things put together!

As a software professional, I know that my it won't be long before I will have to either work for a big company (that can cross license patents) or quit. Fortunately, by then I will probably be able to retire, as I am an OF.

Source code is speech

[mjh]

I recall that a (fairly) recent ruling w.r.t. the publishing of source code to implement strong encryption was deemed as speech. This was the case where a professor wanted to publish source code for encryption but was barred from doing so on the premise that doing so violated federal regulations regarding the export of a munition. The ruling determined that source code was speech and therefore was protected by the first admendment.

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."

?

Re:Source code is speech

[sielwolf]

I think you are comparing apples and oranges. The ruling you mentioned was to uphold the right of citizens to encryption (being that privately held belief and thus encrypted data are a subclass of Free Speech).

This however is bypassing a patent for no other reason that they wish to. Think of these software patents as literature: with an author copyrights their work. To then go out and plagerize this work (and possibly use it for profit) is illegal. Just as you wouldn't take Tom Sawyer, slap your name on it, and sell it to people on the street, you can't take someone else's patented software technique and resell it. You can read Tom Sawyer, you can quote it, and you can give it to your friends. But you can't earn a dollar and a cent off of it.

Of course I have my own problems with software patents: specifically due to completeness and relative hardness of CS problems. The fact that, if you develop an algorithm that maps P=NP, by the nature of NP does that not mean your patent not only cover's your algorithm but everything in the equivalence class (in this case, all of NP)?

Re:Source code is speech

[swillden]

Think of these software patents as literature

Don't.

Patent and copyright are very different, and you can't make sensible arguments about one by appealing to the other.

Re:Source code is speech

[mjh]

The ruling you mentioned was to uphold the right of citizens to encryption (being that privately held belief and thus encrypted data are a subclass of Free Speech).

What? No it wasn't. The ruling was about a scientist who wanted to electronically publish source code so that it could be discussed with his peers! This wasn't about that scientist's right to use encryption. It was about his right to post source code. And the ruling specifically mentioned that "source code represent[s] communication between computer programmers".

I don't know what ruling you were talking about but I see no part of it that looks like the way that you describe it.

"non-obvious to a skilled practitioner"

[gonar]

is one of the defining characteristics of a valid patent.

if someone, or several someones, without knowledge of said patent, come up with the same solution to the same problem, then it clearly fails the non-obvious test, and as such is not a valid patent.

seems like these patents would get thrown out on that basis.

Re:"non-obvious to a skilled practitioner"

[DickBreath]

"non-obvious to a skilled practitioner"
is one of the defining characteristics of a valid patent.

I'll tell you what is non-obvious to skilled programmers. It is simply this.

There is one and only one defining characteristic of a valid patent. Money.

the distributors are the easiest target

[Trepidity]

While source code may be a gray area, distributing working binaries implementing a patented mechanism is a clear violation. So the easiest target would be the distros -- Red Hat, Mandrake, Debian, etc. And really, this is all they'd need to go after. If the Linux kernel has major features that none of the major distributions are legally allowed to distribute, it will seriously impede things -- either the Linux kernel team will have to back out those features, or the distributions will have to back them out themselves, leading to every distribution having its own heavily-customized kernel, at the expense of lots of wasted development effort.

Open-Source Assassination

[m_evanchik]

It should be noted that Mrs. Torvalds is a karate champion (a fact he frequently trumpets in his autobiography). This may be more than just idle talk from Mr. Torvalds.

The SGI patents

[wowbagger]

Given that SGI is a very ACTIVE contributor to the Linux kernel development, I would suspect that SGI patented these ideas in self defense, and will grant license to use them in the Linux kernel. It's probably more a case of "hey, this is a good idea - let's make sure certain parties don't steal it..."

No Linus -- it is YOUR problem

[Compulawyer]

If there is a valid patent that is infringed by your code AND you knew of the patent's existence AND you went ahead and included the patented features in your code, THEN you are liable for willful infringement. In the United States, you would be liable for treble damages and most likely would have your case declared exceptional, meaning you would have to pay the patentee's attorneys' fees as well.

The solution? DESIGN AROUND! Every patent has a limited scope. There are numerous ways of achieving the same result in non-infringing ways for most functionality. There are relatively few patents that "occupy the field" for important functionality. Get competent legal advice for your design-around efforts.

Re:No Linus -- it is YOUR problem

[Compulawyer]

Here's a task for you instead:

1. Register a name on Slashdot;
2. Post under that name instead of an AC

Don't bother me with insipid postings until you do. Then again, if you PAY me to do a patent search for you, I'd be happy to do what you suggest.

Re:No Linus -- it is YOUR problem

[shaldannon]

Yeah but the fact that he replied to a thread detailing the potential patent issues means he knows what's in the thread. Moreover, the tone of his response is a good-old-fashioned "screw them" response. He knows the issues and he's rejecting the patents in favor of writing the code the way he thinks it ought to be written. I tend to agree with his response a little bit. If someone manages to get blanket patents on things that are simple, obvious, too broad, or the only way to do something, then they should be challenged. Otherwise you get someone who has a monopoly, which is bad for everyone except the monopolist.

Re:No Linus -- it is YOUR problem

[Compulawyer]

What you said about prior art invalidating a patent is true. However, when issued, every patent comes with a presumption of validity (35 U.S.C. sec. 282). That means to show that a patent is invalid you must do so by clear and convincing evidence - a pretty high standard. Witness testimony will not suffice. If you are not being sued, in 99% of cases the logical business choice is to design around, not to sue the patent holder to invalidate the patent.

Re:No Linus -- it is YOUR problem

[Compulawyer]

Still better, the fact that he could idependantly re-create the patent without prior knowledge of its existance proves that the patent is obvious to a programmer knowledable in the field, and hence, probably invalid.

WRONG! This is NOT the test for obviousness under the patent statute. All that shows is that an invention can be invented twice.

Unless you have a law degree and a specialization in patent law, I STRONGLY suggest that you refrain from making sweeping assertions about legal principles because you are coming to ridiculous conclusions. Heaven forbid that some good natured but legally naieve person actually read and believe statements like yours. You are doing a serious disservice.

For the final point, Linus is CLEARLY wrong. It is ALWAYS better to know of the patent early. Then you can DESIGN AROUND and AVOID an infringement suit entirely -- not just avoid willful infringement. Your argument is totally nonsensical.

Re:No Linus -- it is YOUR problem

[Compulawyer]

Cute. I have just two comments:

1. "Famus" is properly spelled f-a-m-o-u-s (omitting the dashes, of course); and
2. You are misquoting Shakespeare. Yes, that line is said with the completion "kill all the lawyers." However, the reason for killing the lawyers was to create anarchy. Without lawyers, our society and its basis on the rule of law would be in shambles.

Re:Linus...

[blakestah]

No, it says that by as a matter of principle never checking for patent infringement for solutions you've come up with independently, you are protecting yourself from the possible charge of infringement. This is really a case where ignorance is, if not bliss, the basis of a good case against a bad patent.

This statement is just not true. You don't have to know about a patent to violate it. Copyright is different - you DO have to know about a copyrighted material to infringe, and often demonstrating an infringer knew of the material is critical in court.

To previous respondents:

[Elwood P Dowd]

Laugh. It's funny.

Re:To previous respondents:

[swagr]

Thanks. That's all it was supposed to be.

Linus' right

[dh003i]

There are so many bullshit patents out there that its impossible to write a program without running into them.

Programmers would never get anything done if they worried about the billion possible patent issues before writing code. They'd spend more time reading through the annals of patents than coding.

Deal with the situation when it arises. There is no "willful patent violation". That's pure nonsense. Most patent issues come up because programmers write something off the top of their head that happens to bring up patent issues. They didn't go and look for a patent dealing with the problem their facing and then just use that. Rather, they solved the problem and then realized that someone owned a patent on it. I see nothing what-so-ever wrong with this.

Furthermore, patent owners aren't likely to waste time suing the FSF and Linux developers for patent infringement. They only sue targets with large pockets who could be profitable to sue.

This is a prime example of why patents are so assinite. They are so broad that people violate them as a matter of course just by normal programming. For many of the solutions you think of to a problem, there's a patent out there. There's probably a patent on "hello world" with some assinite asshole behind it who's trying to sue every college in the US for infringing on his patent.

Besides, by publicly talking about parts of Linux which could infringe upon patents, one only draws the attention of greedy patent owners, who'll try to find a Linux vendor to sue.

Patents were not restricted to machines!

[Phronesis]

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.

Re:Patents were not restricted to machines!

[woogieoogieboogie]

Whoever invents or discovers any new and useful process,

so this means that no Microsoft products can be patented because they are neither new or useful.

Re:Patents were not restricted to machines!

[cduffy]

Algorithms and business plans seem to me to be processes and hence, are not automatically excluded from the wording of the historical patent laws.

Believe it or not, historical patent laws aren't limited to the Constitution. Look at case history -- the first really time business process patents were solidly upheld was in 1998, with State Street Bank & Trust Co. v. Signature Financial Group. Even in the early 70s, companies seeking to patent processes which they implemented in software forced their engineers to design and patent mechanical (hardware) implementations of those processes. Note that this was true well after 1952.

You can point to a snippet of legislation or two, but case law bears me out: Patents on software, business processes and, generally, things other than mechanical devices, are an extremely new development.

Re:Patents were not restricted to machines!

[DoctorFrog]

I believe you have to produce a working prototype in order to patent something. If you can produce a working FTL device you won't have to worry about scrimping for royalties, the Nobel alone should pay for your baby's shoes.

As for curing cancer, there's some prior art there. Cancer is not a disease, it is a general description applicable to lots of them, some of which have been cured. If you find (and can demonstrate) a cure for a previously incurable variety, you can have a patent. That's how pharmaceutical companies make their money.

Re:Patents were not restricted to machines!

[Phronesis]

You make very good points. To extend this discussion, I would distinguish statutory from common law. Common law has a long history of precedent against patenting processes and life forms, although statutory law remained noncommittal on both (see, e.g., Diamond v. Chakrabarty, 447 U.S. 303 (1980), where Chief Justice Berger, writing for the U.S. Supreme Court, ruled that living organisms could be patented despite years of precedent to the contrary).

My major point is that U.S. courts and the USPTO interpreted U.S. patent law as excluding business plans and algorithms for two centuries, but then decided to open to door to accepting patents on intangible processes. Whether they should do so is a good topic for debate, but I argue that statutory law and the U.S. Constitution do not exclude such patents.

Why go after developers...

[Registered Coward v2]

when it's easier to go after a corporation that choses to install Linux, over say, a competing MS product? This gives MS (and others) a way to fight Linux w/o taking it on on its merits as an OS. A patent claim would be enough to convince companies to avoid Linux simply to avoid a potential lawsuit. What company wants to waste time and money in a lawsuit, when they can simply license an existing product - something they may have to do anyway, if they would lose a patent suit.

Business, in the end, is about winning and losing - any doubt MS would use patents to hurt Linux?

OTH, IBM, with its embracing Linux, has the resources to fight MA as well as a stable of patents to use as weapons (everybody, everywhere, is probably using an IBM patent without a license). That would make an interetsing marketing ploy - "Why yes, you can buy Linux from redhat, since they use the same source as us, be sure to ask if they have the resources to fight a patent suit. bTW, here's our number in case you decide to go with us..."

Re:Linus...

[Lemmy Caution]

But the onus is on the patent holder to defend their patent. The fact is that it is impossible to know how many patents one violates when developing code. When you stop development to check for patent infringement for methods you developed by yourself, you expose yourself to charges of willful violation.

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.

Can you infringe a patent with something free?

[Simon Brooke]

IANAL, and I am not an American either. This is a genuine quetion.

Can something you give away for free, as a literary work (i.e. source code) infringe a patent? There's no device, there's no product, there's no sale. There's just a literary work, which as I understand it is protected anyway under your first ammendment.

I think there must be at least plenty of room for very considerable legal doubt and manouvreing in there. Does anyone really know?

Re:Can you infringe a patent with something free?

[Sircus]

IANAL either, but my guess would be the answer would be a firm no. Aside from anything else, if the answer were Yes, there'd be the possibility of a manufacturer selling product X and giving away component Z (which features all the groovy patent-protected stuff, but will only work with product X) away...

Although the code-is-speech argument has been fairly well proved, I imagine speech can infringe patents in much the same way it can infringe trademarks.

Don't go easy on the Patent Office

[Dalcius]

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?

The Obvious

[Arandir]

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.

Linux Kernel and Patents

[Obligato]

I am neither a patent lawyer nor a programmer, but I have obtained several patents for my company. It has always been my understanding that patent violation only occurs when one uses the patented technology commercially. For example, if a widget is patented (but not copyrighted!!!), somebody can make their own and use it in their own lab/office/home, and even make multiple copies and give them away to their friends, without getting a license or paying royalties. They just can't *sell* the widgets, or *sell* items that use the widgets as components. That seems to make the situation different for Linux and other open source software than for run of the mill proprietary software. Linux is given away for free. Isn't it true that the companies that are "selling" Linux aren't really selling Linux at all, they are just selling packaging, manuals, and technical support? If that is the case wouldn't they be safe from lawsuits? Or does the fact that they are making a profit indirectly from patented algorithms make them liable? What about companies that are *using* Linux for things like running the servers for their online business. They are using patented algorithms in a profit making activity, even if they are not selling it, so would they be liable for violating someone's patent? Are there any patent lawyers on this thread who know the answers to this?

Switch on Somebody-elses-problem Field

[ge]

Linus' approach makes a lot of sense. In the case of patents (not copyrights) it's the patent owner's job to defend its IP, you are not required to take steps to avoid infringing on patents you're unaware of.

Ignorance is bliss......

You are correct ; Except. . .

[kfg]

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.

Re:Linus...

[Buskaatt]

I think we need to port that little M$ Paperclip to our favorite application development environments so it could warn us ...

Developer: (click-click), "#!/usr/bin/python"

Paper Clip: "Hi! It appears as if you are violating a patent! Would you like to:

1. Give up your house, boat, computer, and first-born in court,
   
   
2. Save me the trouble of calling in the black helicopters and stop development now, or
   
   
3. Ignore it like Linus?"
   

Of course that would be violating a patent too ...

Don't ignore the patent owners!

[ehiris]

You have to come to an agreement with the patent owner!

If he doesn't want to come to an agreement, you post their contact info on Slashdot so they can be driven crazy by anti-patent nazis.

Even Bill Gates/M$ doesn't like software patents

[dh003i]

Software patents are so bad that even Bill Gates and M$ don't like them.

In "The Future of Ideas," Lessig quotes Gates as saying something like, "had software patents had the scope 20 years ago that they had today, many fundamental software technologies would not have been developed".

So, coerce a license...

[brooks_talley]

Here's an easy (if somewhat evil) solution:

Amend the GPL to add a blacklist; individuals, companies, or organizations that are not allowed to use GPL'd software in any form. As part of the accepting the GPL, you'd have to committ to cease use and destroy all copies of said software upon being notified that you were added to the blacklist.

Then blacklist any company that brings patent infringement suits against (or even sends a cease and desist to) open source developers of distributors , and remove them from the blacklist only when they grant all GPL'd software a license to the patent in question.

Just *how* many copies of Linux do you think are in use somewhere in SGI? How about GCC? How about...

Cheers
-b

Re:So, coerce a license...

[brooks_talley]

I don't think you entirely got it.

Here's the mechanism:

- Add the blacklist to the GPL. That is, if you are ever blacklisted, you have to stop using all GPL'd software.

- Have the FSF or someone maintain the canonical blacklist, with some kind of charter or bylaws to prevent abuse. There is only *one* way to be added to the blacklist.

- When a company sues the author/distributor of GPL'd software for patent infringement, add them to the blacklist (thus revoking their license to *all* GPL'd software)

- If that situation occurs, the company can remedy the situation by granting a license for the patent(s) in question to all GPL'd software, and get themselves removed from the blacklist.

As sun-tzu said, the ultimate victory lies in sapping the enemy's will to fight in the first place. This approach would do that, I dare say. GPL'd software is *everywhere*, and trying to root it all out would be impossible for a large company.

Of course, as I said, it's a fairly evil solution. And some open source supporters, like IBM, would probably be less than thrilled. But I submit that it *would* work.

Cheers
-b

Re:So, coerce a license...

[Chris Johnson]

That is a really lousy way to maintain information fluidity- which is the only real concern of the GPL, to which all else takes second place.

I use GPL. Write your own damn license if you want one to do that.

Re:Patents...

[rseuhs]

Yeah, but that could simply be called capitalism.

Wrong, it's the exact opposite of capitalism.

Capitalism is about free markets with low margins and low barriers of entry.

Patents are about closed markets (aka monopolies) with high margins and high barriers of entry.

Much too funny

[alexburke]

If somebody sues you, you change the algorithm or you just hire a hit-man to whack the stupid git.

You go, Linus! Teach 'em who's boss! Send Guido and Boris to have a discussion with the patent holder's kneecaps!

Re:Sugar Daddies.

[JahToasted]

If important code has to be removed from Linux and performance drop, the performance of all those expensive IBM servers drops. I don't think IBM is gonna give up Billions in revenue because of some small patent problem.

Re:Uhh... Okay then...

[HiThere]

I doubt that they did. Why, when FreeBSD is available? But if they had included part of some GPL library, how would we ever know?

Or if some developer snatched a part of gcc to include in Visual C++...how could you tell?

It's not the distribution that's GPL, it's the code that goes into it.

No, 20 years.

[yerricde]

SGI must have done this in the late 80s or early 90s. Haven't they expired.

Utility patents granted by the United States Patent and Trademark Office last for twenty years. Patents on a device that controls access to a copyrighted work fall under copyright law, rather than patent law, and last for the life of the inventor plus 70 years.

Patents are subject to various limited extensions if extension is necessary to get regulatory approval from the FDA or some other agency before selling the product.

If you don't know about it

Then you're still liable for injunction and damages in a patent infringement case. You're just not liable for triple damages and attorney's fees.

Re:Prediction

[shaldannon]

Oh please. Linus is known for making all sorts of off-the-cuff and politically incorrect remarks. If you really think he's going to hire a hit-man, you need to seriously re-examine your sense of reality. Sure he could have said "we'll cross that bridge if we get there", but I think it's more picturesque the way he said it.

Besides, as several other folks have pointed out, a coder's place is to figure out the best solution to a problem, not to look up who has patented what approach to that problem. Within a certain problem scope, there likely will be very few ways to solve it, and if two people happen to come up with the same solution independently, even years apart, it is usually referred to as co-discovery (unless the first guy has the patent, in which case he tries to prove infringement).

The other point that needs to be made is that it is up to the patent holder to prove the infringement. If they don't bother/know/whatever, then it's no loss. If they do, then either you change the code or you try to work out some kind of arrangement. Sometimes this is via patent portfolio swaps, sometimes licensing, sometimes written acknowledgement, and sometimes the patent holder is just a hard case.

What it boils down to is people should go back to coding and not bristle when someone cracks off a wise remark.

Reciprocal IP Licensing

[Codifex Maximus]

If you use Linux then you should not be worried about the Linux developers using your IP or a derivative of it.

We're all sharing here remember? Stone soup ya know?

Not Just a Good Idea, but the Law

[Euphonious Coward]

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.)

Re:Linus...

[Courageous]

As a software professional, I know that my it won't be long before I will have to either work for a big company (that can cross license patents) or quit.

Not really. People would have to aggressively disassemble code to figure out if it constituted a violation. And yet most source code is in house, private, locked up, and not subject to scrutiny.

C//

Re:Linus...

[villoks]

C'mon..

Ever read his mails? He was just joking, unfortunately his humor seems to be too harsh for some half-wits here..

V.

Most Excellent Test Case...

[tlambert]

Something like this would make an excellent test case.

If IP is to be treated as real property, a the MPAA, RIAA, and SPA, etc., all want, then I can establish a Prescriptive Lien through Adverse Use, now can't I? It's a fundamental Common Law principle.

Because I parked my car in front of your house for years, and you didn't stop me, I now have a *right* to park my car in front of your house.

Because I used your VM algorithm in my software for years, and you didn't stop mem I now have a *right* to use your VM algorithm in my software.

Bob: "What's that big ``#if 0'' block?"

Tom: "Oh, that's package XXX, which makes my code a derivative work which grandfathers it under the prescriptive lien package XXX has for use of patent QRS. Pretty cool, huh?"

-- Terry

I'm not sure about the US but ...

[EggplantMan]

IANAL, but in Canada there is a legal idea called willful blindness which makes willfully denying yourself information that would reveal to you whether or not what you're doing is legal to be just as bad as knowing what you're doing is illegal. The establishment of willful blindness essentially provides the proper mens rea to convict someone of the crime in question. So it seems that Linus' strategy of 'see no evil' is a poor one from a legal standpoint.

Code Anonymously

[pseudorand]

That's why we should all release any questionable code anonymously. Just uploade it a few places from your local internet cafe and let the net do the rest. If there's no target for the suits, the patent becomes uninforcable, just like trying to sue everyone who downloads an copyrighted MP3. Free the Information, Man!

Re:Linus...

[blakestah]

But in a court of law your defense would be that you are not a patent attorney, and that it really takes a patent attorney to assess infringement. And, this actually is standard practice in patent law. So, practically, there is no such thing as willful infringement until the patent licensor sends you a note telling you that you are infringing and that you should stop.

Besides, that is general practice anyway. You patent something, then develop a working model. Lots of people copy it once it is working, and THEN the patent is granted, and then you let them know it was patented and they have to stop or license.

Then, if you fail to stop, and you lose in court, you are gonna get reamed.

Re:Linus...

[villoks]

How in earth this PoS get modded up to 5!?

This is utter crap, the knowledge of patents requires that the owner of the patent has specifically warned you about your infrigment or you can otherwise proof that you had the specific knowledge. The mere fact that you have stated somethere that you do not follow the patent databases most certainly does not cause this. Not in EU, not in USA. IMA(IP)L

V.

This is not a trademark case

[villoks]

Doh.

SGI doesn't have to defend its patents, this is not a trademark-case. As other writers in this tread have already pointed out, SGI has been very helpful to the kernel-development even it has in practice hurted their busines.

V.

Anyone who thinks only the US grants bad patents

[LeftOfCentre]

...needs to look at the European software patent horror gallery. Scary stuff.

Re:Linus...

[zangdesign]

Well, unfortunately humor does not come across in email because we don't have the social context and physical cues that are present in the real world.

Hey, you know he's kidding. I know he's kidding (well, actually, I don't give a shit - anything he does is his problem). But with that message in the hands of the right lawyer, how will a jury know he's kidding?

Re:Sugar Daddies.

[thogard]

What it means is if some small company (say the size of SGI) decides to go after something in the Kernel, there is a the very good chance that something in IBM's vast library will allow for a defense.

The problem is what happens if a large company (say the size of AT&T or IBM) does the same thing. Then the developers will need to find prior art and some poor guy will end up in court for the better part of a year. If its a software patent, there will be prior art or enough to show that the invention won't meet the requrements of being patentable. If large compaines hit linux too hard and lose too much, then that negates the value of their patent pool. Its only useful if you can win most of your cases. If they lose three software patent cases in a row, some patent judge might just get a clue and decide software patents are a bad idea.

One way to attack the patent office would be for a huge patent to be filed. I'm not talking hundreds of claims but over a million. Get anything and everything thrown in and see what happens. If one could submit googles entire database as "reference material", then I think the patent office would have a real problem that it would be unable to cope with.

Patents certainly did not help the Wright Brothers

[HopeOS]

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

Protecting the obvious

[j_w_d]

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.

Re:Linus...

[fferreres]

There's a little problem here, because most companies that just ignore patents do have a huge number of them to counterattack the suer (probably a big competitor). And while they are firing back, the tend to put a massive amount of lawers to make sure they do win both trials.

So they just reach an agreement. And thus, they tend to not really care much about patents: the are well armed for counterattack and have huge resources to buy defense.

If you don't have any money and any patents and produce a highly visible product that infringes thouthans of patents, it gets worst.

As Linus said, there's nothing you can do about it. Just hope IBM will pay for your lawers and help with their own patents for conterattack or buy Linux a license to use it (if everything fails), but that's more a hope than a real fact. We'll have to see what happens.

Things get worst because these products are all open source, so it's trivial to prove if a patent is beign abused. If you have a closed source product, how would a patent owner know if the closed product is using their reverse mapping patents?

I am pretty sure gnumeric, abiword and many open source packages suffer the patents infringement problem. It hasn't been a problem until now, but does doesn't mean the problem is not there (like a virus, it may be sleeping, but can awake at any time...usually when the most harm can be done)...

orderly fashion?

[forgoil]

First of all, how about contacting SGI asking if the Linux project can get it in writing that they can use these techniques (they might even get code from SGI). No point in bashing SGI before this point. In fact, being unnice will diminish the chances. Besides, SGI has given away software to linux (etc) before.

Second of all, it would be a good idea to make a point of software patents making it harder to stay competitive in a very hard to survive in market. Putting it into terms that are not dripping with radical ideology, but in terms of stifling the progress and the market, reducing innovation and profit.

Re:Linus is a fucking asshole.

[fzammett]

Speaking of the interpretation of patents, fair enough. I'll go so far as to say I stand corrected and agree, it's not "aginst the law" to do something that is patented.

However, if you knowingly go forward with something that you know MAY be infringing a patent, you are inviting the patent holder to press his/her rights and prevent you from doing it, perhaps at great cost to you. Whether you agree with the underlying laws that allow this to potentially occur or not, you are foolish to simply ignore them.

In New York it is actually legal to appear topless in public. In other states it is not. If a woman goes to Alabama, which we'll assume for the sake of argument has a law forbiding this activity, and walks down the street topless even though she knows it's against the law, that's a stupid thing to do. She might get swau with it because maybe no one will press charges (very likely if only men see here!), but it's still inviting trouble.

The argument that you did not know about a patent and you therefore did not infringe it, is a weak legal position to take. You may in fact be able to win a case based on that, there may even be precedence for such a ruling, but it's a weak position and banking on winning on it isn't a bright idea.

And in this case, Linus and the other involved folks DO know about the patents. They may not have read them, but let me put it this way... I'd LOVE to be the lawyer representing the plaintiff in a case against Linus here. I'd claim that he knew there was a patent he may be infringing and did not go through due dilligence to prevent the infringment and is therefore as guilty as someone who had read the patent and ignored it. Don't know if I'd win, but I'd feel very good about my case going in.

Finally, your assertion that I made a complete fool of myself is ridiculous. My point was that Linus is a fucking asshole in this instance, and I stand by that completely. You are correct, it seems that he is not breaking any laws at present based on the definition you cited of patents, but he is most certainly inviting potential legal action by a legitimate (presumably legitimate anyway) patent holder. He in in fact flaunting the fact that he actively ignores patent holders and their IP rights because he does not believe in the concepts underlying the laws. This is, in my view, an extremely stupid position to take and potentially very unhealthy from a legal standpoint. Nothing may ever come of it, and he will look right and I will look wrong. That doesn't change the fact that he is putting himself at risk for his principals. Fine, he has that right. And others have the right to sue him and ruin him financially if they so wish. He knows this, and chooses to put his head in the sand. This, to me, is the definition of a fucking asshole.

KFC recipe

[Abreu]

Kentucky Fried Chicken

Secrets are not secrets for long and the secret holder cannot sue if you discover the secret (or reverse engineer it)

With copyright and patents on the other hand, the patent holders are lobbying everyone they can to extend their monopolies as much as they can, effectively hindering progress.

Re:KFC recipe

[blair1q]

"Fines herbs"
"Seasoned salt"

What herbs? What season? What proportions?

"Seasoned pepper"

And what the fuck is that???

Anyone can make fried chicken. The Colonel's recipe is still a secret.

If it was patented, you could substitute one good flavor for one you think is bad, and patent it yourself. That's innovation.

--Blair

Re:KFC recipe

[Abreu]

Sorry, I meant to link to this one

Here are the seven "secret" spices and herbs:

Rosemary
Oregano leaves
Powdered sage
Powdered ginger
Marjoram
Thyme
Dry minced parsely
Pepper
Paprika
Garlic salt
Onion salt

TA-DAAA! : )