Patents and the Penguin

In an article entitled Patents and the Penguin, the non-partisan Alexis de Tocqueville Institute observes, "[i]t is not uncommon today for patent fights to erupt even between parties that have engaged in rigorous diligence. By contrast, open source developers and distributors do not engage in patent searches, thus, there is a real possibility we will see a major patent fight involving open source, sooner than later. The article also ominously warns: "IBM will be competing with large Linux-based developers and distributors themselves. As the deployment of Linux increases, it can be expected that IBM will be going head-to-head with its "friends" in the Linux community. It is unquestionable that the biggest irony of all will be when Big Blue resorts to using its war chest of patents against a "friend" in the Linux community." Even Homer Simpson can see this coming.

Comments

Open Source Apocalypse

[tedgyz]

Sadly, I believe this threat will ultimately make the SCO debacle pale in comparison.

Re:Open Source Apocalypse

[Anonymous Coward]

Beware the military industrial complex. With Nasa and the military using increasingly more and more Open Source apps, I can forsee ugly bed fellows between the likes of Big Blue and Uncle Sam. I must agree with the OS Apocalypse.

Re:Open Source Apocalypse

[e5z8652]

I don't know if the military is much of a potential lawsuit source. There is a good chance that the military could leverage OSS mushroom style.

For example, until Theo pi##ed them off, the Air Force and Darpa were sending money to OpenBSD. Who's to say that they haven't since forked it to "DarpaBSD" and moved on?

The military does have programmers who know their stuff, and they can hire IBM as a contractor doing 'work for hire' that legally belongs to the U.S. Government, complete with NDAs & whiterooms.

They also have a secrecy == security mindset in many areas, so they may choose not to release their work. Even GPL software could dissapear into the system like this, since they would all be working under the umbrella of the U.S. Government and so therefore the work could be widely used in binary but never "distributed."

In that case, patent cases or other IP disputes would probably not be made public, as in order to make a case the military work would have to be published. And unless they publish their work (like SELinux), nobody else would really know enough about it to sue them. Given that Microsoft et.al. has already complained about the unfair competition provided by SELinux, I think publishing complete operating systems or adaptations of OSS operating systems would be rare.

Anyway - just a thought.

Re:Open Source Apocalypse

[saden1]

Leave Homer Simpson out of this! He is a comical genius if nothing else. As for Alexis de Tocqueville Institute, well they are just a laughingstock of an institute that wants to be taken seriously.

Re:Open Source Apocalypse

[Anonymous Coward]

You can't really compare this to the SCO case. The big difference is, someone holding a patent could actually have a valid case against an open source project, unless the patent could be invalidated. Sadly, even those patents that obviously never should've been granted in the first place are unlikely to be invalidated or reduced in scope.

Re:Open Source Apocalypse

[jrexilius]

Why would we list more babblings of ADTI as news? I personally had a run-in with them over their last "whitepaper" about the evils and perils of open source in use by the government.

They are unreasonably biased either because of the funding they receive from microsoft (which I beleive funded that last paper) or due to outdated views and limited understanding of competition and capatilism as it relates to software.

Sadly, this topic is pertinent but less from IBM and more from Microsoft and their slew of patents surrounding Longhorn. SCO's case will die but MS has figured out that they can beat OS through the legal system rather than through competition.

Re:Open Source Apocalypse

[Anonymous Coward]

For example, until Theo pi##ed them off, the Air Force and Darpa were sending money to OpenBSD. Who's to say that they haven't since forked it to "DarpaBSD" and moved on?

It wasn't that Theo pissed them off. What happened was the money was going to a university project (Penn State?), and the were in turn sending it off to other projects, including OpenBSD. What happened was someone discovered that OpenBSD was based in Canada, and the money was yanked because the project was Canandian and not US. Theo can spout off all he wants about the US govt. pulling the money because of his "outspoken criticism"; but I'd be your car note that the response from the Pentagon was more along the lines of "Theo who?"

Re:Open Source Apocalypse

[tedgyz]

Sadly, this topic is pertinent but less from IBM and more from Microsoft and their slew of patents surrounding Longhorn. SCO's case will die but MS has figured out that they can beat OS through the legal system rather than through competition.

That is what I fear. The current system rewards corporations for revealing patents after a technology has become pervasive. Who's to say Microsoft can't sit on some patents and then pull the rabbit out of the hat when they feel the time is right.

Re:Open Source Apocalypse

[SillyNickName4me]

> Who's to say Microsoft can't sit on some patents and then pull the rabbit out of the hat when they feel the time is right.

They will try, they kinda suggested it also in memos that were leaked (?)

In the end.. IBM and Novell seem to have more to gain from a freely developed Linux then one that is bogged down my MS and their IP. I'm pretty sure that among them they have enough material to make MS think twice before actually trying it themselves (as opposed as through a proxy as they are doing right now)

Re:Open Source Apocalypse

[iabervon]

The United States government is neither allowed to have intellectual property nor is it bound by intellectual property law. Of course, it may be indirectly affected by claims against contractors (thus preventing them from providing the services the government wanted), so they pay attention, and they like to arrange to have contractors create things, so that those things don't go into the public domain.

Re:Open Source Apocalypse

[4of12]

Even GPL software could dissapear into the system like this, since they would all be working under the umbrella of the U.S. Government and so therefore the work could be widely used in binary but never "distributed."

Is that really the case with the GPL?

I would have assumed that whenever a binary was distributed to anyone, anywhere that whatever changes were made to the corresponding GPL'd source would likewise have to be distributed.

It sets a dangerous precedent to allow "an organization" to remove GPL rights from individuals in the organization that receive binaries.

Next thing you know, some company will come out with a front "organization" to which you will agree to belong in order for them to distribute to you binaries that they derived from modified GPL code.

Re:Open Source Apocalypse

[Anonymous Coward]

Useage within an orgainization is not considered distribution.

Re:Open Source Apocalypse

[Anonymous Coward]

You can't be my car note, I already have one.

What's the difference between a duck?

Re:Open Source Apocalypse

[Smallpond]

The United States government is neither allowed to have intellectual property nor is it bound by intellectual property law.

Do you have a source for these assertions? Didn't the US Gov. sign an international copyright treaty? Doesn't NASA have an active patent licensing group?

Re:Open Source Apocalypse

[JWW]

Fantastic post! In the end IBM may be the only company that will be able to keep the Longhorn patents away from Linux.

Also the one looming question is: If Microsoft uses their patents against other operating systems, aren't they by default abusing their monopoly position? Remember, they were found guilty of being a monopoly, it was the settlement that was totally worthless. Could Linux companies counter sue from an anti-trust angle if Microsoft sued them over patents?

Re:Open Source Apocalypse

[ben_white]

I would have assumed that whenever a binary was distributed to anyone, anywhere that whatever changes were made to the corresponding GPL'd source would likewise have to be distributed.

No, you may use modified GPL binaries internally to your heart's content, and as long as you don't distribute it outside your organization.

Next thing you know, some company will come out with a front "organization" to which you will agree to belong in order for them to distribute to you binaries that they derived from modified GPL code.

Interesting thought. I should patent it! Really though, I think that would push the definition a bit. By paying to join an umbrella organization to get access to binaries, you are making it hard to argue that these binaries aren't distributions that fall under the GPL and require source code release, etc.

Bring in the lawyers!
Ben

Re:Open Source Apocalypse

[xmorg]

Impossible!

IBM is our friend, they would never EVER betray our cause!

Re:Open Source Apocalypse

[SillyNickName4me]

> Could Linux companies counter sue from an anti-trust angle if Microsoft sued them over patents?

I don't know, but the norm seems to be that you can always sue, no matter how outlandish your claim ;)

I guess that they might even have a case, but is it a usefull thing to do? I'd doubt it..

Seems that fighting that specific fight is gonna take 10 years of your life or company and is gonna make you end up with very little result and a lot of frustration.

As a defensive tactic it might be usefull tho, but I'd expect such a thing to end in enforced indiscriminate licencing once more, but now of any possible bit of technology they have or such.

Re:Open Source Apocalypse

[jrexilius]

This is the scary part. Whether true or not, is it becoming the accepted view that the only way any technology can survive in this system is with the backing of large, wealthy corporations and expert legal teams?

Why has the technology product space become that type of a commodity? In other areas a product cant do well without massive marketing budgets but legal budgets seem to be a smaller share of teh pie.

Re:Open Source Apocalypse

[Minna Kirai]

It sets a dangerous precedent to allow "an organization" to remove GPL rights from individuals in the organization that receive binaries.

It certainly does. That loophole would allow the GPL to be totally ignored. After all, "an organization" is an incredibly nebulous term. It doesn't have a limited legal definition like "corporation" does. Almost any group of people can be defined as an "organization" as long as there is a straightforward way to check for membership in the group.

For example, all of these things are organizations:

• Walmart
• The US Army
• The US Department of Defense
• The citizens of the USA
• People of Earth

If you allow one "organization" to internally ignore GPL, where do you draw the line? You can't...

Next thing you know, some company will come out with a front "organization" to which you will agree to belong in order for them to distribute to you binaries that they derived from modified GPL code.

This has happened. They were sued, they settled without making it to court. The organization was a "Quake playing club" that wanted to give their members modified copies of GPL Quake without the source code (they said it would reduce the incidence of cheating).

The GPL specifically disallows the scenario of many employees of a company recieving modified GPL programs, but being forbidden by their boss's order from redistributing those: "You may not impose any further restrictions on the recipients' exercise of the rights granted herein."

Nontheless, many people believe that the GPL contains an exception to allow "redistribution within an organization", although the license text itself says nothing like that. This belief is primarily butressed by a confusing and inconsistent entry in the GPL FAQ.

That entry states that "use within one organization is not distribution". But that is simply untrue. If I buy a case of Pepsi and send one to each employee, that is distribution. Handing stuff out to each member or placing stuff on each desk is distribution. Passing out 100 copies of a program is distribution, regardless of if I give them to customers or employees.

Re:Open Source Apocalypse

[Minna Kirai]

No, you may use modified GPL binaries internally to your heart's content, and as long as you don't distribute it outside your organization.

That's not what the GPL says. You just wrote "distribution outside your organzation", which implies that it is technically possible to "distribute inside your organization" instead. However, the GPL takes effect whenever any form of "distribution" occurs. The license has no qualifiers for "internal" vs "external" distribution.

you are making it hard to argue that these binaries aren't distributions that fall under the GPL and require source code release, etc.

"distribution" has nothing to do with if money changes hands. All the word means is that something is spread out to multiple different places.

If a multinational corporation wants to send software to each of its 1000s of employees, there is no way to accomplish that without distribution.

Re:Open Source Apocalypse

[hesiod]

> What's the difference between a duck?

The difference is that the duck exists.

Seems less likely

[not_a_product_id]

I thought the whole idea is that IBM are selling services for a product where the vast majority of the developers are NOT employed by IBM. Surely they wouldn't be stupid enough to piss about 95% of 'their' developers?

Re:Seems less likely

[Tri0de]

Correct. My understanding is that they were going to try to provide a 'talent agent' model; matching a developer with a client; building the hardware and supporting the OS would give them leverage and expertise to do so efficently. The goal (actually, the Holy Grail)of a lot of the smarter big companies is to co-opt the nimblness of small cos and individuals yet maintain the assets that go along with hugeness -capital and other resources.

Re:Seems less likely

[Bronster]

Surely they wouldn't be stupid enough to piss about 95% of 'their' developers?

Not to mention that if the patents cover anything they've distributed under the GPL then they're going to be in direct contridiction of:

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

So the only GPL products they could use their patents against are those that don't incorporate any source code from IBM - and even then the person distributing them could just link them against something IBM distributed to them and be safe.

Re:Seems less likely

[HBI]

It's very unlikely indeed. People who worry about this don't understand IBM very well. IBM makes money - they will continue to make money for time immemorial because their method of doing business is a time-tested and good one. They have little to no interest in Linux software as a product. They are interested in support and ancillary services for large corporate clients. They aren't going to change their focus because they know where the money is.

To them, OSS isn't a stick to beat Microsoft with. It's a means of ensuring their dominance in the delivery of computing power and corporate support. If everyone runs a generic OS, that benefits IBM, as long as that OS isn't proprietary.

Re:Seems less likely

[precize]

If you look at the open source IBM distributes, you notice that very little of it is under the GPL. Most of IBM's distribution is under the CPL, which states in paragraph 2b (bolding mine):

Subject to the terms of this Agreement, each Contributor hereby grants Recipient a non-exclusive, worldwide, royalty-free patent license under Licensed Patents to make, use, sell, offer to sell, import and otherwise transfer the Contribution of such Contributor, if any, in source code and object code form. This patent license shall apply to the combination of the Contribution and the Program if, at the time the Contribution is added by the Contributor, such addition of the Contribution causes such combination to be covered by the Licensed Patents. The patent license shall not apply to any other combinations which include the Contribution. No hardware per se is licensed hereunder.

Re:Seems less likely

[Anonymous Coward]

We thought Caldera was an open source ally once too.

Re:Seems less likely

[7-Vodka]

you are kidding?
IBM distributes just about EVERY GPL Free Software application there is. They distribute full gnu/linux operating systems. That includes the kernel, the libraries, the applications etc. Most gnu/linux distros try to package every GPL software that's out there and IBM distributes more than one distro.

If IBM had any patents which could be applicable to ANY GPL software, that's now in the past.

Re:Seems less likely

[drinkypoo]

IBM hasn't made money by ignoring reality - that is a behavior which we see plenty of here on slashdot, though. The fact is that the world is changing and proprietary legacy software becomes more and more distasteful as linux becomes more and more powerful and runs on more computers. Programers have long embraced portions of assorted BSDs, such as a fellow who I read a comment by not long ago who had yanked the TCP/IP stack from OpenBSD and used it in something he was writing - all very legitimate and desirable from the standpoint of the BSD folks of course. But, many of them never really got into BSD as a lifestyle (that particular poster may have , but I don't know) but Linux is becoming THE THING in all sorts of disparate markets. Can it be long before its portability surpasses netbsd's?

OSS is both carrot and stick and as such we must be careful while wielding it. IBM may be interested in selling services, but they are very interested on selling them on top of Linux.

If there is any reason why IBM might not decide to trample all over Open Source versions of their products which contain IBM patents, it is that they won't feel that the others are any kind of competition. IBM has traditionally not seemed to have spent a lot of time and/or effort on patent litigation except defensively, probably because they invent shit and move on. By the time someone else is capable of making a strong showing of infringing on their patent, they've developed the next big thing.

Re:Seems less likely

[RickHunter]

In short, IBM's not on top because they want to sell you ways to do what they want you to do. They're on top because they sell you ways to do what you want to do. Contrast this with Microsoft's products, which constantly try to be smarter than the user and dictate to him how he is to use his computer and what he is to do with it.

Re:Seems less likely

[SillyNickName4me]

Hmm, IBM pushed quite a fee onto SUN for entering the workstation market if I'm not mistaken.. I wouldn't call that defensive.

They do however limit such things to direct competition, and only when they have a decent chance of getting what they want.

Somewhere in the 80s, they decided it was undoable to go after a whole bunch of patents regarding the isa bus and pc hardware, and after a few futile attempts turned onto something else.

At any rate, they seem to want money for real inventions, not for silly stuff. I dare you to build and sell an elecrto tunneling microscope without licensing their IP :P Use DMA in your whatever oddball piece of hardware and unless you piss them off I doubt they are gonna bother at all (if that one didn't expire by now anyway)

If you are interested in IBM and iP, they and Phillips probably have the best IP management and leverage policies around... I know the later of the two more or less lives from it (and yeah, they do invent things, CD anyone? They are also pretty strict with their IP usually, with soemtimes rather good effects.. it took expiration of their CD patents for CD copyprotection to appear on a larger scale for example and their copiers still undo virtually all of it since those 'protected' cds are just malformatted ones that need correction in their eyes ;)

Re:Seems less likely

[agurkan]

are you kidding? patents are not lost if they are not enforced. if IBM wants to enforce a patent a) which is used in a product distributed by IBM or b) which is used in a product distributed by IBM as well as in other products not distributed by IBM. IBM can a) stop the distribution and enforce the patent b) enforce the patent for the product not distributed by itself. GPL is not stronger than copyright, as long as you stop distributing the product you are no longer bound by its rules. The past recipients of the product probably cannot be sued without the original author of the product claiming copyright infringement though.

Re:Seems less likely

[HiThere]

Patents definitely aren't lost if they aren't enforced, but if IBM has patents in GPL code that they've distributed, the I believe that the doctrine of "promissary estoppel"(sp?) would apply, and thus they wouldn't be able to enforce that patent against any derived work.

Basically what this means is that by distributing code as GPL, IBM has promissed to abide by the license, and people are legitimately allowed to claim the right to use the GPL conditions on their derived works. (I don't know the CPL, but similar conditions may apply. It does qualify as a free license.)

CAUTION: IANAL. Use the above opinion with caution.

Re:Seems less likely

[precize]

ummm....no....

There are two situations here. One is the case where IBM contributes their own code (possibly containing patented stuff) to GPL products/distributions, and redistributes it. In that case (which is extremely rare...pratically non-existant anymore), IBM would have lost the right to require extenders of that GPL'ed code to license their patents.

In a second situation, company XYZ infringes on an IBM patent, and contributes that infringing code to a GPL'ed project. If that project happens to be included on a RedHat CD which IBM ships, that does not mean that they have lost the right to enforce their patent. However, once IBM learns of the infringement, they must cease distribution of the infringing GPL'ed code if they wish to pursue patent infringement claims. That is where SCO screwed themselves. They claimed that GPL code was violating their rights, even as they continued to distribute it.

Re:Seems less likely

[7-Vodka]

Well, first off
"GPL is not stronger than copyright"

Actually, the GPL is as strong as copyright because it relies on copyright; hence the term copyleft. It states that certain freedoms are to apply to the GPL'd work and all of it's derrivatives for eternity. If you don't abide by the license, nothing else gives you the right to distribute GPL'd work ie. copyright STOPS you from distributing the GPL'd work.

"IBM can a) stop the distribution and enforce the patent b) enforce the patent for the product not distributed by itself."

a) Yes I think section 7 of the GPL needs to be re-written to clarify this point to not allow someone to stop distributing the program and start charging for patent licenses. However IBM would have to stop distributing all GPL programs which fell under each patent they tried this with. This is unlikely to happen unless they pull out of the open source/free software buisness completely.
b) Yes IBM can choose to enforce patents on GPL'd software it didn't distribute, however my point was that they distribute a whole heck of a lot under the GPL and any of those patents cannot be used against those projects.

Re:Seems less likely

[Jane_Dozey]

Caldera was. But then they became SCO and changed to a CEO who likes litigation.
Don't discard a companies history so easily. They changed a whole lot of things before starting down their current road.

Of course, saying that, if I were a lawyer in the OSS world I would be keeping an eye on IBM just incase they decide OSS isn't a good option for them any more.

IBM and its patents

[Compact Dick]

The day IBM uses its patent portfolio against the very community that helped it regain its status quo is the day when the U.S. patent system's foundation begins to crumble.

FOSS == obvious to skilled practitioner

[Futurepower(R)]

If it is in FOSS software, it is, by definition, obvious to someone who is skilled in the art. Therefore, it is not patentable.

Is this reasonable?

Re:FOSS == obvious to skilled practitioner

[kalidasa]

Nope. This is not reasonable. I don't think you have a very clear sense of what "obvious" means in this context.

Re:FOSS == obvious to skilled practitioner

[howlatthemoon]

The patent office is giving out these patents left and right. If each one needs to have a post-award prior art or other challenge, it will be like bailing the Titanic with a thimble. Eventually the group who is fighting the patent, thus usually has no real dollars at stake is likely to tire first.

I still wonder if preemptive patents or a register of prior art might not be a good idea to fight fire with fire.

Re:FOSS == obvious to skilled practitioner

[RAMMS EIN]

That won't help you very much. Either the FOSS had it first, which makes it prior art, or it had it later, which means they could have copied it from the inventor. In the first case, the patent should not have been granted in the first place, in the latter case, I doubt the FOSS project stands a chance against the (supposedly wealthy) patent holder.

Re:FOSS == obvious to skilled practitioner

[curator_thew]

> Is this reasonable?

No, it has nothing to do with obviousness: it's about novelty. Quite simply, if the (so called) patented invention is already disclosed to the public, then a patent cannot be obtained for it.

In other words, the mere fact of committing code to a CVS repository already discloses it and thus whether it is obvious or not (i.e. "inventive") is irrelevant: no one can now patent it.

There are further complexities once you did deeper, but that's the basic rule.

Re:FOSS == obvious to skilled practitioner

[Anonymous Coward]

I think he does have a clue what's obvious.

Just because the patent office has been screwed up for about 7 years is no reason to believe in the larger context they won't straighten out and become reasonable.

"Obvious" doesn't mean "obvious to a clueless patent examiner", it means "Obvious to someone skilled in the art".

Re:FOSS == obvious to skilled practitioner

[mrchaotica]

It has to be novel and non-obvious, not one or the other - so if it's already public (as your example, in CVS) it's not patentable, but even if it isn't, if it's "obvious", it's also not patentable even if it hasn't actually been "made public" yet.

[insert standard "IANAL" disclaimer here]

Re:FOSS == obvious to skilled practitioner

[Anonymous Coward]

"Obviousness" is, unfortunately, something of a subjective judgement call.

And obviousness after you've seen an idea is not the same as obviousness before you've seen it. It's pretty obvious that the earth goes around the sun, right?

Prior art is a much better defense. Its presence can at least be objectively established, though you'll still wind up in legal quibbles over how similar the ideas may be.

Re:FOSS == obvious to skilled practitioner

[Anonymous Coward]

Quite simply, if the patented invention is already disclosed to the public, then a patent cannot be obtained for it.

Close. You have one year from the date of disclosure to file for a patent. Even better, you can file a provisional application, which gives you an extra year beyond that to file. It's risky to publish your invention before you file for the patent, because any schmo who reads the publication might be able to file a patent faster than you, leaving you with the burden to prove that you were first.

Re:FOSS == obvious to skilled practitioner

[kalidasa]

This has nothing to do with whether or not the current patent examination process is flawed or not, it's about an ideal patent process. And even in an ideal process, independent invention is not an sufficient criterion of "obviousness." Two individuals can invent (and have invented) the same non-obvious invention at the same time. Think telephone. The idea of using electricity itself might have been obvious; the way to do it was not.

Re:FOSS == obvious to skilled practitioner

[curator_thew]

> Close. You have one year from the date of disclosure to file for a patent.

No, I was correct: didn't you read my "there are complexities"? The one year grace period is not applicable in all countries (US, Australia - 12 months; Japan - 6 months): if you disclose and rely upon a grace period in the US, you will defeat novelty in the EU and other countries, thus your invention will not be patentable in those latter countries.

Re:FOSS == obvious to skilled practitioner

[curator_thew]

> It has to be novel and non-obvious, not one or the other

That's what I meant, try 35 USC ss102 [particularly (a), (b)] and 103. Good luck!

Re:FOSS == obvious to skilled practitioner

[lothar97]

I'm an IP attorney, and would like to correct a misconception here. A patent application has to describe an invention that is "new, useful and nonobvious." "New" is often used in place of "novel." The hardest thing to explain (and understand) in patent law is how something is not obvious when the current art is considered. It's a catch-22: if something was invented, then it must be obvious. Patents being filed for Longhorn are for completely new things: new file systems, etc. I doubt we'll see this in OSS, since there would have to be a really large improvement in say how a disk is read/written to come up with a "novel" method. Potentially, you could get a patent on a totally new OSS project, say a great new rendering engine platform for a webbrowser.

Re:FOSS == obvious to skilled practitioner

[Findus Krispy]

Quite, but then it's impossible to have a reasonable discussion about patents since *they're not reasonable*, no matter which way you care to look at them; the fact that FOSS developers don't read patents speaks volumes. The way patents are being used nowadays is scandalous, and I think, rather than steeling the IP cosh, this farce will only cause the whole idea of intellectual property to be re-evaluted, with a sensible law as the outcome.

Unless a patent holder can proove (at their expense) that I used their patent to figure out how to achieve something, or was influenced by the unique knowledge introduced by their patent while achieving some goal, then they have no grounds for claiming part ownership of my work, since, by definition, they have had no hand in the creation of that work. Why is this so difficult to understand?

In criminal law we have the idea of 'beyond all reasonable doubt'. I believe the patent owner should be under a similar burden of proof. I think that with FOSS patent owners will have a dificult job shuting down patent infringed projects anyway, since, I for one, will be quite happy to ignore these ridiculous laws and re-distribute the software.

Re:FOSS == obvious to skilled practitioner

[servoled]

From the MPEP Section 2143:

A statement that modifications of the prior art to meet the claimed invention would have
been " well within the ordinary skill of the art at the time the claimed invention was made'
" because the references relied upon teach that all aspects of the claimed invention were
individually known in the art is not sufficient to establish a prima facie case of
obviousness without some objective reason to combine the teachings of the references.
Ex parte Levengood, 28USPQ2d 1300 (Bd. Pat. App. & Inter. 1993). See also In re
Kotzab, 217 F.3d 1365, 1371, 55 USPQ2d 1313, 1318 (Fed. Cir. 2000) (Court
reversed obviousness rejection involving technologically simple concept because there
was no finding as to the principle or specific understanding within the knowledge of a
skilled artisan that would have motivated the skilled artisan to make the claimed
invention); Al-Site Corp. v. VSI Int'l Inc., 174 F.3d 1308, 50 USPQ2d 1161 (Fed. Cir.
1999) (The level of skill in the art cannot be relied upon to provide the suggestion to
combine references.).

Re:FOSS == obvious to skilled practitioner

[Futurepower(R)]

Good reference.

I'm not sure I read about that case, but I did read one that may be like it.

I think my earlier comment #9117326 still applies.

The case you cited is one is which obviousness is being argued when there is no case of someone else making the same invention. Where FOSS has a special problem is when a FOSS author makes the same invention after an application has been filed with the patent office, but before it issues.

After a patent issues, the FOSS author would need to apply for a license.

Most software patents seem utterly obvious to me, so the whole issue is unfortunate.

Re:FOSS == obvious to skilled practitioner

[servoled]

The problem with the situation of your previous comment is that obviousness is determined at the time the invention was made (i.e. at the time of filing unless an affadavit or declaration is filed to prove an earlier invention date). To go back to the MPEP Section 2143 (a very good section to read if you are interested in how obviousness is determined under current US laws btw):

Whether an art is predictable or whether the proposed modification or combination of the
prior art has a reasonable expectation of success is determined at the time the invention
was made. Ex parte Erlich, 3USPQ2d 1011 (Bd. Pat. App. & Inter. 1986) (Although
an earlier case reversed a rejection because of unpredictability in the field of monoclonal
antibodies, the court found "in this case at the time this invention was made, one of
ordinary skill in the art would have been motivated to produce monoclonal antibodies
specific for human fibroplast interferon using the method of [the prior art] with a
reasonable expectation of success." 3 USPQ2d at 1016 (emphasis in original).).

Unless the OSS project was created prior to the filing date of the patent application, it can't be used as prior art or as proof of obviousness simply because of the dates invovled.

Re:FOSS == obvious to skilled practitioner

[rtb61]

The real strength of the open source system and any fears about software patents is prior art. The open source community has many minds to access, as such can reasearch prior art like no single corporate entity can. As software patents are ideas about implementation rather than the actual code they are subject to prior art expression of those ideas. The most unsual but likely effective resource for prior art would be science fiction novels and even science fiction comics as these were an area where a lot of the current uses of technology were first expressed i.e. think Dick Tracy communicator watch, whilst the hardware is still patentable the software "concept" would be subject to prior art as the concept has already been publicly expressed (hence the supposed patent holder would have stolen the idea). It makes you wonder how many software and business method patents marvel comics etc. might be entitled to.

IBM

[myom]

Just because IBM is on the "good" side for now, does not mean that Big Business will be the saviour and flag bearer for the Open Source movement for ever. Sooner or later O.S. will be screwed and we will see court cases vs IBM, HP etc will steamroll over smaller organisations and people in order to enforce software patents.

Re:IBM

[demachina]

I'd say you are jumping to a conclusion without much basis in reality. The companies that are embracing and endorsing Linux are NOT going to be the stupid enough to launch law suites against the open source community. They would destroy their software business in the same way SCO has. Geeks would stop buying their software and services just on principal. The only company that would do it is one currently embracing open source, has a management change, and then decides to try and milk it or kill it like SCO.

The company with the patent portfolio to fear is pretty obviously Microsoft who is filing about a patent an hour. They aren't dumb and they know that:

A. The patent office is a push over in granting software patents so they can patent all kinds of obvious things and will reach a point you wont be able to write software without infringing their patents or at least you wont be able to right software that has lots of cool features in new versions of Windows because they will be patented.

B. With patents in hand Microsoft can, at will start going after open source software. Presumably this will commence 4 or so years after they decided to kill open source using patents and at a point they've accumulated enough patents to successfully do it which you would figure is probably a year or two from now. SCO could probably be considered as just their first salvo since they didn't need to wait on patent awards to fire that one. They know they can't compete on price but they also know they can strangle open source in the court room in the U.S. and eventually Europe. Of course this will likely just further improve the economic and technology positions of countries like China who will probably accelerate their progress while the west is mired in frivolous law suits.

C. Microsoft knows that the open source community doesn't have the war chest to fight a long string of protracted law suits unless places like IBM or HP pony up money and lawyers. Even if some of Microsoft's patents are thrown out based on prior art, some will win and even the ones that don't will drain the open source community's resources, time and will.

All in all the U.S. especially and the western world in general is setting itself up to destroy its software industry thanks to software patents and the army of lawyers who are going to get rich litigating them while just about everyone else loses, except the countries with the sense to ban them.

Re:IBM

[AndroidCat]

The friend of my friend is my enemy?

It's not that they're evil, just that corporations are psychopaths. (Their conclusion is debatable, but worth thinking about.)

Re:IBM

[HiThere]

Corporations all definitely have MPD, to greater or lesser degrees. I'd call that psycopathic.

Re:IBM

[Tablizer]

The companies that are embracing and endorsing Linux are NOT going to be the stupid enough to launch law suites against the open source community. They would destroy their software business in the same way SCO has.

You are assuming companies are or will remain rational. It is not too farfetched to picture IBM getting a new CEO who suddenly has an urge to "leverage our intellectual property". If Linux spreads far and wide, the suits might start seeing a penguin stuffed with cash.

Re:IBM

[groot]

Just because IBM is on the "good" side for now, does not mean that Big Business will be the saviour and flag bearer for the Open Source movement for ever. Sooner or later O.S. will be screwed and we will see court cases vs IBM, HP etc will steamroll over smaller organisations and people in order to enforce software patents.


Just like RIAA has been able to stop most P2P and encryption-breaking? It's like a "whack-a-mole" game, hit one over the head here, two new ones pop up somewhere else.

++plus, unlike P2P and encryption-breaking, Linux and OSS is perfectly legal, some would even argue: viral; catch the fever.

--laz

Re:IBM

[akpoff]

You're absolutely right about this -- they've already begun. Remember till just recently when wxWidgets was known as wxWindows? From the "Name Change" page:

In September 2003, Microsoft approached Julian Smart to open discussions about the wxWindows name, in relation to the 'Windows' UK trademark owned by Microsoft. The result of these discussions can be summarised as follows.

After a polite request from Microsoft, and a lot of thought on our part, we have decided to change the project's name to wxWidgets.

Apologies to all wxWindows users, and developers of wxWindows-related projects, for the short-term discomfort caused by the name change.

I believe them that the request was made politely. I think Microsoft have learned that asking nicely at first goes a long way -- nicely being with a big smile and a check.

Despite whatever any of us may perceive or think about Microsoft it's not an evil corporate hell-bent on destroying GNU/Linux or Free Software. Microsoft does direct all their energy towards preserving themselves and building the Windows franchise. If the must destroy Linux en route then they will. It's very similar to Torvalds noting that the goal of Linux is not to destroy Windows but merely and unintended consequence. What we have are two ideologically driven organizations that just happen to be going in opposite directions on the same tracks. There may be a collision or one or both will branch to other tracks.

For now patents in general are a challenge and threat to Free Software and in the near future Microsoft may fire the first shot.

Re:IBM

[demachina]

Well I think I mentioned this possibility in my post. But I don't think its real productive to spurn all corporations, especially ones making contributions to open source, just because there is always a chance a dickhead management team will take power and turn them to the dark side. When it happens then you deal with it. Maybe it is a good idea to make make sure no corporation has you by the balls so that it will get ugly if they are turned. Mono being an example of a technology looking to pervade open source that could prove to be a disaster if it does indeed became pervasive and it proves to be patent encumbered by a company that already would prefer to see open source burn in hell.

Seems Unlikely

[supersnail]

IBM has publicly expressed its disapproval of software patents, citing, among other things the cost of litigation.
IBM is the owner of a vast number of patents which provide substantial revenue for the company, however, the vast majosrity of these are hardware patents, and, even here IBM has been reluctant to get involved in litigation except fot the most blatent violations.

Re:Seems Unlikely

[NighthawkFoo]

IBM allows anyone to license any and/or all of its patents. All you have to do is give them a call and they will be more than happy to work out an agreement with you. The large patent portfolio is more of a defensive measure - if IBM is sued, it's more than likely that they can countersue with a few choice patent violations.

Bottom line - don't sue IBM unless you are sure you haven't infringed on ANY of their IP.

Re:Seems Unlikely

[NineNine]

Normally, yes, a patent fight is an expensive one, but against most OSS projects? There's nobody to defend OSS! IBM's corporate lawyers could make swiss cheese out of OSS developers, if they wanted to, and it'd be one of their easiest legal battles, ever. Whether or not they decide to, I don't know. But if they do, it's all over before it even starts.

Re:Seems Unlikely

[khb]

Humm, a very different perspective can be found at http://www.forbes.com/asap/2002/0624/044.html Where Gary Reback, famed IP attorney, says:

My own introduction to the realities of the patent system came in the 1980s, when my client, Sun Microsystems--then a small company--was accused by IBM of patent infringement. Threatening a massive lawsuit, IBM demanded a meeting to present its claims. Fourteen IBM lawyers and their assistants, all clad in the requisite dark blue suits, crowded into the largest conference room Sun had.

The chief blue suit orchestrated the presentation of the seven patents IBM claimed were infringed, the most prominent of which was IBM's notorious "fat lines" patent: To turn a thin line on a computer screen into a broad line, you go up and down an equal distance from the ends of the thin line and then connect the four points. You probably learned this technique for turning a line into a rectangle in seventh-grade geometry, and, doubtless, you believe it was devised by Euclid or some such 3,000-year-old thinker. Not according to the examiners of the USPTO, who awarded IBM a patent on the process. After IBM's presentation, our turn came. As the Big Blue crew looked on (without a flicker of emotion), my colleagues--all of whom had both engineering and law degrees--took to the whiteboard with markers, methodically illustrating, dissecting, and demolishing IBM's claims. We used phrases like: "You must be kidding," and "You ought to be ashamed." But the IBM team showed no emotion, save outright indifference. Confidently, we proclaimed our conclusion: Only one of the seven IBM patents would be deemed valid by a court, and no rational court would find that Sun's technology infringed even that one.

An awkward silence ensued. The blue suits did not even confer among themselves. They just sat there, stonelike. Finally, the chief suit responded. "OK," he said, "maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"

... In corporate America, this type of shakedown is repeated weekly.

Re:Seems Unlikely

[Halo1]

IBM allows anyone to license any and/or all of its patents. All you have to do is give them a call and they will be more than happy to work out an agreement with you.

Indeed, they'll be very happy to take anywhere from 1% to 5% of the retail price of your product in exchange for a license.

The large patent portfolio is more of a defensive measure - if IBM is sued, it's more than likely that they can countersue with a few choice patent violations.

If that were the case, then why are they lobbying so hard to get software patents legalised in the EU, and not lobbying at all to get them banished from the US (and on the contrary, blocking studies that could show there is a problem with swpats)? You don't need defensive software patents if no-one can have any.

Re:Seems Unlikely

[Alsee]

Even better - check IBM Worldwide Patent Licensing Practices:

For products in the IT field that practice an IBM patent, the royalty rate follows the guideline of one percent of the selling price of that product. If more than one patent is practiced in a product, the maximum rate is five percent of the selling price of that product.

GPL software is generally downloadable for $0, thus $0 royalties. I guess IBM could demand a percentage of the price of boxed software sold in stores. Oooooo, vewy vewy scawy. Real wrath-of-God stuff here guys! Fire and brimstone falling from the sky, dogs and cats living together!

So the good-old Alexis de Tocqueville Institute has declared IBM is about to sue its Linux friends into oblivion. Riiiiiight.

Cry havoc and let slip the dogs of FUD!

-

Re:Seems Unlikely

[rmarll]

SCO was a fairly linux friendly operation until a few years ago. All it takes is one man to redirect an organization.

Re:Seems Unlikely

[Anonymous Coward]

"Patently Absurd" is right. Do you honestly expect us to believe that the statement inside quotes in that article was uttered by an IBM lawyer in a setting where it could be recorded? Hunh.

I've sat across the table from IBM patent licensing attorneys. They know the patents, they know the law, and they dictate the licensing terms. They don't make cowboy statements.

Don't burst my bubble!!

[WordODD]

Without the push IBM has given Linux into the marketplace, the number of Linux users would be nowhere near where it is today. The possibility of a patent war is a nessecary evil, but hopefully it will never come to this. Remember the majority of money IBM is making from its Linix department is coming from the support it offers and the hardware Linux runs on, neither of these areas will be a focal point of any patent war.

What about "the rest of the world"

[krunk7]

The power of open source lies in the fact that no one outside of western nations could give a rat's ass over who has what patents. If the west isn't careful they're going to sue themeselves into second place in the world economy......

Re:What about "the rest of the world"

[Anonymous Coward]

Intellectual property is a myth. You CANNOT and SHOULD not be able to own an idea. I am beginning to think that this may be a real turning point in civilization as we know it. Imagination and the associated innovation based off that imagination is what makes us able to do so many amazing things. Now, you can imagine building something to change the world, you can even imagine how to build it, but if someone has previously thought of it, you are in for a losing legal battle. This may be an extreme statment with regard to software patents, but the premise is frightening in either scenario. This is a legal restriction on free thought and development. Software patents are just one piece of the larger takeover.

Re:What about "the rest of the world"

[irgu]

no one outside of western nations

Who are actually in the "western nations" today (aka accepting software patents laws)? USA. Anybody else? Perhaps Canada, Japan?

Re:What about "the rest of the world"

[Anonymous Coward]

EU is about to accept software patents. Haven't you been reading?

Really, China is going to kick our butt because we're acting like IP will save us, and its really REALLY a case of the emperor's new clothes.

IP doesn't exist. Its a hand-waving exercise. Its saying "here's a great idea, but don't use it!"

If I'm china, I'd say "thanks for pointing out the most novel parts of your software; I'll copy those first".

If the West's pre-eminance can be broken by simply a billion chinamen ignoring our laws, then we've already lost.

Re:What about "the rest of the world"

[Anonymous Coward]

EU is about to accept software patents. Haven't you been reading?

That's not TODAY, but speculation. Anything can still happen. Haven't you been reading?

Really, China is going to kick our butt because we're acting like IP will save us, and its really REALLY a case of the emperor's new clothes.

Sure, you've being already kicked on your butt. Or you still has job?

Re:What about "the rest of the world"

[gnuLNX]

Not in your life time....besides your country will probably adopt our IP laws so that we give them business.

Re:What about "the rest of the world"

[Anonymous Coward]

"Intellectual property is a myth. You CANNOT and SHOULD not be able to own an idea."

The more I think about it, the more I agree with this statement. You can't own an idea, and you need powerful government coercion to enforce such a silly notion. It's not a natural thing.

Re:What about "the rest of the world"

[Anonymous Coward]

The economy's great. I know because His Majesty, president bush just told me so.

Re:What about "the rest of the world"

[Anonymous Coward]

It's precisely because you cannot physically guard an idea that you need government coercion to prevent people from stealing it. Protection is necessary to retain an incentive to create and release your secrets to the public, rather than carry them to your grave.

Similarly, it's entirely a "natural thing" to grab an club and beat up your neighbor so that you can have sole access to the water supply. We also have powerful government coercion to prevent this sort of thing from happening, despite the lack of "natural law" causing people to behave.

Just because a law isn't "natural" doesn't mean that it is wrong.

Re:What about "the rest of the world"

[krunk7]

I'm from the U.S. I think we've already adopted them last I checked.

I've already seen a lot of things happen in my lifetime. The collapse of the USSR, foes become friends and than foes again, a nerdy kid with an accute business sense become, arguably, the most powerful man in business, and a B actor become president.....it's not the things you expect to happen in your lifetime that come as a surprise, it's the ones you never thought were possible.

B. S.

[Doesn't_Comment_Code]

Alexis de Tocqueville was a jackass and the institute that bears his name doesn't seem much better.

IBM will be going head to head with Linux why? IBM makes money consulting and selling hardware. They say, "We have this great mainframe for $200,000 that runs Linux. It's fast, scalable and dependable." That is of great value to them. OS2 was no cash cow. That's why they've moved in the direction they have. That's why they're spending so much money to help develop Linux - it is GOOD for them.

Re:B. S.

[ClosedSource]

IBM recently acquired Rational which will not have any impact on selling mainframes. IBM "consulting" mostly consists of advising you to buy IBM stuff. It's not a viable business on its own.

Re:B. S.

[HiThere]

OK. They were bought. But the thing is, they didn't have to compromise their principles to produce this report. The Alexis de Tocqueville Institue is well known as a CONSERVATIVE think-tank. They will always reliably come to conclusions that favor big business. Union Carbide could have hired them to produce a report on why Bophal deserved to have the accident that wiped it off the map. And they would have done it cheap. (For Bophal to hire them on why it was Union Carbide's fault, though, would have been quite expensive, and would have produced a shoddy report.)

I.E., if you know that this group has produced a report, and you know the topic, you can predict the conclusion without the effort of reading the report.

How soon they forget....

[44BSD]

Non-partisan, you say? I think not.

Re:How soon they forget....

[harryjrsd]

Yeah, my first reaction to seeing "non-partisan" in reference to a human was "yeah, like one exists"

/babies maybe...

Re:How soon they forget....

[metalpet]

I suspect CmdrTaco forgot to put his tags.
Upon reading "Alexis de Tocqueville", most slashdot readers equipped with a working associative memory can't help but see the word "Microsoft" dancing in their head.

Come again?

[Cooper_007]

the non-partisan Alexis de Tocqueville Institute observes

Do you mean this very non-partisan intitute?

FUD, plain and simple.

Cooper
--
I don't need a pass to pass this pass!
- Groo The Wanderer -

Re:Come again?

[Doesn't_Comment_Code]

Best information from Wired:

A Microsoft spokesman confirmed that Microsoft provides funding to the Alexis de Tocqueville Institution.
...
Microsoft did not respond to requests for comment on whether the company directly sponsored the debate paper. De Tocqueville Institute president Ken Brown and chairman Gregory Fossedal refused to comment on whether Microsoft sponsored the report.


Just one more independant review - my ass.

Re:Come again?

[Tarantolato]

Half the links on the homepage are broken. The ones that do work lead you to a bunch of op-ed essays and recorded radio broadcasts, all attributed to about half a dozen names.

Re:Come again?

[Citizen of Earth]

Indeed, he's a paid Microsoft shill, but he does have a point. Not that IBM will start suing every Linux developer in a mad rage, but that Microsoft will. It will start when its core markets (desktop-Windows, Office) are eroded to a certain critical point. Fortunately enough, I have seen the future and they will fail. "When you flame gold, you only burn away the impurities."

Re:Come again?

[Cooper_007]

Now this is just typical.
I'm the first to post about this Tocqueville / Microsoft connection, but because other people respond with similar information in reply to earlier posts my +5 Informative gets metamoderated to being redundant.

Thanks guys. Appreciated.

Cooper
--
I don't need a pass to pass this pass!
- Groo The Wanderer -

Open Patents

[harrkev]

OSS people need to file for patents, and lots of them.

Then, call them "Open patents." They are free for ANYBODY to use AS LONG AS they do not file any patent suits against open-source projects. This would create an interesting arms race. "We will use yours, but then you get to use ours. If you start a fight, we take our ball and go home." Of course, for this to work, there has to be a substantial body of open patents...

Re:Open Patents

[molarmass192]

Fantastic idea ... one small problem ... it costs $10K on average to prepare and file a patent in the US alone, so where is the money going to come from??? Beyond that, defending even a single patent in court would make that $10K seem like milk money. The only practical solution from a FOSS perspective is to abolish software / business method patents altogether, and that's a little like taking a steak away from a Rottweiler as it's chowing down on it. The silver lining is that the patent system is becoming increasing cumbersome so there's a very slim chance it will choke the economy so much that the US government will have no other option other than to abolish / reduce the lifespan of these patents altogether. So, maybe we'd be better off creating an "Open Lobbyist" project.

Re:Open Patents

[mjh]

Of course, for this to work, there has to be a substantial body of open patents...

...and a substantial amount of money. Who's going to litigate the enforcement of "open patents"? How would that be financed?

Re:Open Patents

[grahamm]

OSS should not need to file patents. The objects of the patent system and OSS are quite similar - to put information on public view rather than kept as trade secrets (as the old guilds used to do). OSS publishes source code, so this should act as prior art and publication as far as patents are concerned. So that it should be impossible for anyone to obtain a patent on something that is already done by OSS. Therefore, there is no advantage (and as has already been noted, the cost of a patent is a disadvantage) in OSS obtaining any patents.

Re:Open Patents

[Anonymous Coward]

Do you know how this $10K breaks down? What is the actual filing fee? If it is small, someone could work on a fill inthe blanks boiler-plate application and away we go.

Even if the patents aren't granted, it may gum up the system, which may be a good thing. I have not thought of that too much. Any comments?

A Nony Mouse

Re:Open Patents

[molarmass192]

Found this on Google ... looks like lawyer eat the biggest chunk with the USPTO taking in only about $500 of that $10K.

Re:Open Patents

[servoled]

According to the FY2004 USPTO Fee Schedule it would cost $385 to file and then $665 at issuance assuming the patent issues. The filing and arguments could all be done pro se (i.e. without a lawyer) and the patent could be abandoned at the due date of the first issue fee. Grand total: $1050 per patent.

Defending against a lawsuit initiated by someone else would cost money no matter what, even if the OSS files for patents, but if they did it would give them more leverage. Defending your own patents is entirely optional.

Re:Open Patents

[harrkev]

There WOULD be an advantage! If some lawyers who love Linux would step up to the plate and do this, then the advantage would be if company X sues XFree (for example) for patent infringement, then company X would loose all rights to use any OSS patents. If OSS has enough patents, then it would be a big stick to use, expecially if company X was using this technology in one of their other products.

This would be sort of like the USA/USSR arms race. If you shoot me, I shoot back and we both die.

Re:Open Patents

[FattMattP]

Someone has already been working on this idea. See the Open Patents web site.

Re:Open Patents

[deck]

I disagree. If an invention is published and someone files a patent on the same in less than a year after it is published they can get a patent on it. Very often scientific researchers get the patent applied for before their papers are published just for this reason.

My conclusion therefore is that OSS developers should be applying for patents. These patents could be used in a defensive manner if challenged by a proprietary, closed source developer (company).

Re:Open Patents

[stealth.c]

Except, according to the home page, the Open Patents website was last updated back in 2002. Looks abandoned. Maybe presenting the topic to some folks at Groklaw will bring the idea back into action.

Re:Open Patents

[NineNine]

Prior art is all well and good, but a LAWYER needs to be pointing at it saying, "Look here, Mr. Judge. It's already been done!". In and of itself, "prior art" is useless. Very expensive lawyers would have to be hired to fight a very expensive legal battle.

Re:Open Patents

[FattMattP]

I know the guy that owns the site. He hasn't updated it in a while because he's been trying to get companies interested in the idea. Unfortunately, this is one of those chicken and the egg problems. No company wants to contribute patents until others have first. So getting the ball rolling is proving difficult for him. I point him to this thread. The Groklaw idea is a great one.

Re:Open Patents

[Anonymous Coward]

s/issue fee/renewal fee/

Re:Open Patents

[GPLDAN]

This would be sort of like the USA/USSR arms race. If you shoot me, I shoot back and we both die.

This term is known as Mutual Assured Destruction or MAD.

Here is the Wikepedia entry for it. It's a premise in most game theory decisions as well, in some respects the Prisoner's Dilemma can be said to be based on it.

this is what Patents have de-volved into. One files patents for the sole purpose of assuring destruction of litigating party. If I patent something insanely stupid, like the use of color in word processing, then I can always use it to bash you if you sue me for something of actual merit. I can tie the court system up long enough to make it completely destructive to you. Thus, you are deterred from doing anything about my wholesale intellectual property theft.

Welcome to your future.

Re:Open Patents

[fredrik70]

I believe Red Hat actually does that already

Re:Open Patents

[Angus Prune]

No one needs to enforce them. Thats the point. it just means the patent cannot be taken by someone else.

If someone sues OSS and happens to be using a one of these patents then it can be used against them (yes, it may cost money, but its likely to save on the total court costs).

Re:Open Patents

[Anonymous Coward]

if company X sues XFree (for example) for patent infringement, then company X would loose all rights to use any OSS patents I thought the point of open source was everybody could use it, not just the good guys.

Re:Open Patents

[maxwell demon]

But just to file them has a certain non-negligible cost.

One cheap way to get at least safety against patented code introduced by the patent holder would be to add to the license that everyone distributing derived code for which he holds a patent, has to allow use of that patent for any derived code at no cost, or otherwise may not redistribute at all.

With such a license clause there's at least defense against deliberately placed "patent bombs" in OSS.

Re:Open Patents

[maxwell demon]

Well, this chicken-egg problem might be solvable by contracts to contribute patents as soon as at least n other companies (with an appropriate choice of n) have contributed patents as well. This way he can show the later companies "those are the other companies who already agreed to commit as soon as it takes off", and tell all companies "well, as long as there are not enough other companies, the whole thing doesn't start off anyway, so you'll not risk to have a disadvantage if others don't join".

Re:Open Patents

[Anonymous Coward]

Who will wasye his time doing it when he can make money selling them?

Re:Open Patents

[Jane_Dozey]

What if company X is right to sue XFree (as in your example)? Then taking away their right to use OSS patents amounts to bullying. Also, lets say that company X sues me (and I have a little OSS project running). It's just an allegation with no real substance, but it still goes to court (al la SCO). I don't have the funds to fight it and so I will go under as a result. They might not even care about their rights to OSS patents but Ive still been put out of business. Where's my advantage? I have none and have no guarantee that company X even uses OSS patents in their own products.

This scenario is more like an execution: If you shoot me, I'll die and you can make money at my funeral.

Re:Open Patents

[Ogerman]

Completely wrong. "Open Source patents" would be a terrible waste of money and time and would be extremely hypocritical of community ethos.

The most reasonable approach to fighting this threat is to push as hard as possible in the next couple years to get OSS into the marketplace. That means: 1.) getting resources to projects that need them so they can rapidly improve 2.) thinking commercially 3.) more OSS-savvy consultants who can employ/sponsor/contribute to free software solutions. The more people who switch to OSS solutions, the more people that will be seriously peeved if abusive monopolists start trying to shake down the little guys with bogus legal claims. The more people who successfully switch away from proprietary products, the less money that will go into the war chests of those with a tendancy to abuse the system.

The other front is directly challenging the current, broken patent system. Simply put: the patenting of software needs to be thrown out altogether. There are two ways this basic problem can be attacked: 1.) A patent case that potentially goes all the way to the Supreme Court and gets software patents ruled unconstitutional. (which they reasonably should be) 2.) A massive grassroots campaign among software developers that can put enough pressure on legislators to affect change. There are surely a lot of small-medium corporations who would sign onto this campaign as well. Even some larger companies might, assuming they view their software patent portfolio as defensive. Ideally this should happen before the first legal volley is fired, but sadly it will probably take this to stir up enough dissent.

Re:Open Patents

[harrkev]

What if company X is right to sue XFree (as in your example)? Then taking away their right to use OSS patents amounts to bullying.

Nobody said anything about taking away their rights to use OSS software. They just can't use any Open Patents in THEIR products.

Also, lets say that company X sues me (and I have a little OSS project running). It's just an allegation with no real substance, but it still goes to court (al la SCO). I don't have the funds to fight it and so I will go under as a result. They might not even care about their rights to OSS patents but Ive still been put out of business. Where's my advantage? I have none and have no guarantee that company X even uses OSS patents in their own products.

True, but if Company X is then using Open Patents in their product portfolio, then they have to change that or face the posibility of a lawsuit. If they don't use any open patents, then they have nothing to loose.

I see the posibility of open patents as a kind of good neighbor idea. You can borrow my drill if you don't mind if I come in and borrow your ladder. But if you say "you can't borrow from me," then I have every right to say "you can't borrow my stuff either." Game theory has even proven that "tit for tat" is a wonderful strategy in some circumstances.

Re:Open Patents

[Jane_Dozey]

"Nobody said anything about taking away their rights to use OSS software. They just can't use any Open Patents in THEIR products."
And neither did I. I just said that taking away their rights to use OSS patents just because they're suing an OSS project (for good reason in my example) would be bullying.

Yes, "tit for tat" works in many situations but it is also open for abuse: "if you don't let me do what I want I'll cripple your project".
In theory it's a good idea but in practice people wouldn't play fairly (as is shown by current business practice) and would use the flaws to their own advantage.

Re:Open Patents

[Anonymous Coward]

Might be a bit hard for OSS people to file any patents.... as open source is generally about copying and reverse engineering existing technologies.

Not creating anything truly new or innovative.

Re:Open Patents

[Mark Shewmaker]

(Yes, I have put the project on the back burner for a bit, but there are certain important parts I've had to work on all this time--it's not in any sense of the word abandonded,)

I want to have provisions to allow people to exit out of the license in some ways within some initial startup time period. Adding in a critical-mass of patents before that time period starts ticking is a good idea. Thanks!

Of course I can't really ask people to commit to submitting patents until the license is finalized though, and the license is still in its beginning stages. But I had been attempting to do something else, similar to what you suggest: In talking with people about the notion of so licensing their patents, I tried to persuade interested parties to allow their interest to be public knowledge, once a certain number of companies so similarly agreed, and that number reached some critical mass.

The closed-source companies I talked with were not so interested in their interest being known, publicly or privately, not until many other closed-source companies were known to be interested--so stalemate. (I was aiming to be able to publicize a set of closed and open source companies interested in such a license--not just one or the other, and concentrated on the "harder" side of things first. Perhaps I was wrong in that and should just talk with the Open Source folks first.)

(In a breath of fresh air, on asking him about this, Raph Levien quite nonchalantly said I could publicize his interest in considering something like the Open Patent License once it became solid. I'm guessing the more Open Source companies may respond similarly--again, I was probably wrong in my thoughts about the order of doing things, and should possibly go ahead and contact them.)

In any event, the license still needs a lot of work. If you're willing to put some time in helping there, that would be great! And if you're a lawyer, that's even better! :-)

We can still get people to publicize their interest independently of the license state, but it should go considerably faster as the license becomes more solid.

Is this some kind of joke?

[tooloftheoligarchy]

What the hell kind of half-ass "think tank" publishes a paper with two flagrant spelling errors ("hobbiest", presumably meaning "most hobby", and "eying") in the first two paragraphs?! Microsoft needs to invest in higher quality FUD.

Re:Is this some kind of joke?

[VanWEric]

Corrrrect Spelling was patented by Clippy in '98. Using akurate spellering wood give a dirrect link between the FUD and the FUDders.

Re:Is this some kind of joke?

[danknight]

What the hell kind of half-ass "moderator" mods this comment troll ?!

Re:Is this some kind of joke?

[groot]

--PUBLIC NOTICE--
I have copyrighted all mispelled words, and those who mispell words in the future will be charged. However being the nice guy I am I will only charge $0.99 per mispelled word.

Those of you who mispell words, will be receiving your lsingle-use license grant bills in the mail.

Rats I have to bill myself again!

The bad company

[PhuckH34D]

Well, IBM used to be the evil company before Microsoft, so... I think it is a good chance that IBM will do something like that.

This assertion is pretty stupid because of the GPL

[Anonymous Coward]

If they would have read the GPL it says that you license *all* your patents with that software for that software. So if IBM is distributing Linux it would have a pretty hard time suing any other Linux distributor or user over code that IBM has distributed under the GPL. It's pretty easy actually and one of the beauties of the designed in features of the GPL.

IIRC this wonderful institute has written some very controversial studies and analysis for Microsoft and other proprietary interest before. They can hardly be called neutral or non-partisan.

--
Andre

Remember Caldera

[MonkeyDluffy]

It was only a few years ago that many of us were cheering for Caldera in its DR DOS lawsuit against Microsoft. Hopefully, IBM would not do anything as stupid as Caldera/TSG has done since then.

-MDL

It would be stupid

[MrRuslan]

for IBM to do that because that would alianate the entire linux community and turn alot of important people against them it's not gonna work no matter how big they are...Linux is ment to be open and dirty tricks will make things bad for them...look at SCO...

Homer can't see this...

[e5z8652]

"Even Homer Simpson can see this coming.

Homer Simpson CANNOT see this coming. However, given a half hour, he could accidentally trap the entire IBM legal department in some underground cave (or perhaps Moe's), find an old patent in his attic registered by his great grandfather* in 1901 for a "computing device", show up to court and take IBM to the cleaners for, oh let's just say $3 Billion, and then sign over the check to Mr. Burns in return for a week off and a couple of donuts.

*OK, we all know Lisa forged the 1901 patent, but as long as it works in court we're fine.

Re:Homer can't see this...

[elwell642]

"I see Esc, K'tarl, and pig-up... where's the any key?"

I'm still wondering how Homer got his name mentioned in this article. Article -1, Offtopic

Re:Homer can't see this...

[Anonymous Coward]

Hey, I saw that episode!

Re:Homer can't see this...

[NaugaHunter]

Worst. Episode. Ever.

Sorry, had to be said. It's actually way more coherent than many of this season's episodes so far.

Re:Homer can't see this...

[Paul32_829]

"the 1901 patent"

However, a patent is not valid forever...

You are on crack.

[superpulpsicle]

The REAL conspiracy is IBM pushing linux forward half ass, just so they can preserve AIX.

They are going to sell a linux box here and there and make the linux world a go-go. Then confused marketing, law suits and tech drama will follow.

Re:You are on crack.

[WordODD]

Half assed? Accorinding to News.com.com IBM raked in $159.9 million in Linux-related sales, up from $75.6 million a year ago. The next closest compitition was HP with about $80M and then Dell with around $72M. Source Article I would say their interest is fairly well vested and considering that the sales numbers are only the tip of the iceberg of the Linux related revenue, IBM is in this for more then just preserving AIX.

Last card in the deck

[akaina]

Patents are the last card in the deck. Consider the fact that SCO was looking to generate revenue having exhausted all of its other streams. Everyone knows SCO had nothing to offer, and that's where part of their disdain came from.

On the flip side there are small companies making a name - but most grass roots efforts can defeat them.

IBM is no where near as close to closing its doors as Sun, so I don't know why everybody is worried about IBM.

Re:Last card in the deck

[bersl2]

Perhaps IBM truly has "mellowed out" in its middle age...

I'm willing to give them support for now. Nevertheless, you know what they say about the price of freedom...

IBM gets it, so far

[Anonymous Coward]

I think IBM recognizes that it's getting free labor from the community. I don't think they'll flex their patent muscles over that w/r/t Linux, unless some corporate goomer tries to prevent them from getting their free labor and goodwill (coughSCOugh). Other software that competes with stuff they sell? That's another matter.

Microsoft, reportedly, is patenting everything in sight. As the IBM portfolio begins to expire they may begin to rival IBM in active software and process patents. The real concern is in the application layer and interoperability protocols. This area is infinitely variable and still offers some hope for profitability, if a company can get a lock on a needed software function. Expect to see hostile action and possible barratry against security protocols, multimedia projects, groupware, web application interfaces and maybe even virtual machine systems. These are all areas where research is done and new ideas are being tried, and probably areas where MS and IBM are filing new software patents. They are certainly areas where MS and IBM hope to make money on software or delivery of unique services. Patents are a way to keep their offerings (legally) unique.

Re:IBM gets it, so far

[bwcbwc]

"As the IBM portfolio begins to expire ..."?

IBM continues to lead all other companies in US patents granted each year. And hundreds of these are for business processes and software. The GPL protects for licensing of patented code that IBM provides, but if a 3rd party contributes code that violates an IBM patent, IBM can legally enforce its patent against the 3rd party.

While IBM's current business model of providing services provides good cover and support for OSS, remember that up until the 1980's IBM was a hardware company. EDS was the computer services leader. If IBM's business model is forced to change again (for example due to competition from Asian outsourcing companies), OSS could become a target.

Another scenario is If an Open Source project becomes a meaningful competitor that impacts a strategic piece of IBM's business, that project will be targeted as described by Anonymous.

is it just me?

[Anonymous Coward]

Is it just me or does this look like just a hate story against the big blue? Okay, IBM is not the saint that is portaired by some hardcore fans of its recent linux 'friendliness' since it has showed clear signs of greediness in the past. I've heard of IBM 'solutions' being sold in the late 20th century to 'support' the 'employment' of colored people in africa but.. that's all in the past. And if the IBM is going to do such a bad thing to linux, fight its distributions we'd like to see the proof.

Where's the proof? Is this thread just a speculation?

1, 2, 3 Plan

[Famatra]

The plan should be:

1) Like you said, F/OSS organizations should file for their own patents that are freely available for all to use. I am unsure how this will be sponsored though since filing for a patent is nontrivially expensive.

2) Support PubPat in looking for prior art for the worse offending patents against free / open source software, and other patents that are harmful to society. A story from Groklaw about PubPat.

3) Try to get patent reform done including disallowing software patents, and have more patent examiners hired with actual experience so they can sniff out bogus claims.

Re:1, 2, 3 Plan

[sparcnut]

The plan should be:

1) Like you said, F/OSS organizations should file for their own patents that are freely available for all to use. I am unsure how this will be sponsored though since filing for a patent is nontrivially expensive.

2) Support PubPat in looking for prior art for the worse offending patents against free / open source software, and other patents that are harmful to society. A story from Groklaw about PubPat.

3) Try to get patent reform done including disallowing software patents, and have more patent examiners hired with actual experience so they can sniff out bogus claims.

You seem to have missed one.

4) Profit!

Re:1, 2, 3 Plan

[Citizen of Earth]

Support PubPat in looking for prior art for the worse offending patents against free / open source software, and other patents that are harmful to society.

Of course, I'm too lazy to check the site, but in addition to searching for prior art, they should also accept post-art for any invention that might be patented in the future and publish it on their site.

Is ignorance an excuse?

[CodeMonkey4Hire]

IANAP[atent]L[awyer], but surely there is some protection for a person/organization that unknowingly infringes. Could they not cease the infringing practice from the time of disclosure and/or come to an agreement. Otherwise, it seems like the party that accidentally infringes could be subject to some serious demands/damages.

The cost of a sufficient patent search would be prohibitive to many OSS teams.

Choice?

[SavedLinuXgeeK]

Patents ensure money for the creator, for a given period of time, so that they work they put into their product, is returned. Normally monitarily. With Open Source, they do not really create for $$ but just so they can use their software when they are done. I understand now as F/OSS is hitting mainstream there are going to be come conflicts between the two ideals of closed and open. But honestly, the open source community is full of people unhappy with current programs, and creating their own. If people start patenting their products, it will kill the ability to create different choices, and choice is the power of OSS. I am not sure how this will affect the situation, but I cannot see it as being good at all. Throwing money into F/OSS is only grounds for making more conflict, not helping the open source development model.

Non-partisan?

[Tarantolato]

The Alexis de Tocqueville Institute may officially be non-partisan, but it's basically a jobs program for second-tier Neoconservatives.

Re:This assertion is pretty stupid because of the

[mr i want to go home]

You know, I never realised this.

You are totally right. This article is a non-issue.

Only the GPL and LGPL so-called "viral" licenses effectively grants all downstream users the right to freely use the software.

This is one of those times I wish we could moderate a topic as "troll". It's complete FUD.

Funded by Microsoft

[Anonymous Coward]

Is this the same "non-partisan Alexis de Tocqueville Institute" which is funded by Microsoft? That suggested "Open Source Software allows terrorists an easy time hacking into our systems"? Or did people forget this already?

http://slashdot.org/article.pl?sid=02/06/04/228240 &mode=thread&tid=109

sigh...spelling error in first sentence.

[stealth.c]

In the quote by Russel McOrmond, the writer quotes him as saying "This isn't hobbiest stuff."

Now, if "hobby" were an adjective (even in a term like "hobby market," "hobby" is still not an adjective--it's a modifying noun), then "hobbiest" would mean the object you're describing is hobbier than anything else. But hobby is not an adjective. It is a noun. The word the author was looking for is a word for a person who engages in a hobby: "hobbyist."

Second, even if the quoted party (Mr. McOrmond) spelled it that way, it's important for the quoter to put a [sic] after the word to signify that yes, it's spelled wrong but it's not a typo. You do this instead of correcting the spelling in the name of journalistic integrity. Leaving it the way it is tells me either 1: the author doesn't know how to spell "hobbyist" or 2: the author is a sloppy typist.

Re:sigh...spelling error in first sentence.

[Anonymous Coward]

It's a sign of the times. Most people have piss-poor written grammar and have no more idea about word choice than a 3rd grader. Example:


We'll, looks like they're softwares got a bug. What do you suggest we do about it.


A spell checker won't complain about any of the text above, but it's obviously wrong. Bunch of damn hobbiests!

Re:sigh...spelling error in first sentence.

[the chao goes mu]

You missed the most popular use of 'sic'... showing off that the reviewer is much more clever than the writer being reviewed. Why else would reviewers so often directly quote bad syntax rather than paraphrasing?

Re:sigh...spelling error in first sentence.

[bwcbwc]

Actually, this means "most hobbled". "Hobbliest" was just too awkward.

Example: The hobbiest competitor was forced to drag a large ball and chain all the way around the track.

So McOrmond was probably just saying that it isn't crippleware.

Or maybe not ;-)

Re:sigh...spelling error in first sentence.

[Anonymous Coward]

This is particularly ironic when you consider how Daniel Webster put together his first dictionary. He would peruse the newspapers of the time and, whenever he ran across a word that wasn't included in his dictionary list, he would first approach the author for a definition and spelling. I guess this was when journalists were learned people and before they became the butchers of the English language that passes for journalists nowadays. You cannot read a major newspaper anymore without running across a dozen spelling and/or grammatical errors that should embarass a 4th or 5th grader!

Re:sigh...spelling error in first sentence.

[stealth.c]

Also, an American dictionary didn't really exist when Webster went around collecting words. Journalists then were butchering English just as much as they do now. Why do you think the USA obnoxiously spells things differently from the UK and Canada? He was collecting misspelled words!

Patents, Penguin and Daemons too!

[modipodio]

Don't forget that software patents are a big issue for software developers that use the BSD licence as well and that the BSD community has seen its fair share of litigation. This isnt just a Linux/GPL issue.

Solution: sue the patent office

[Sebby]

1. sue the patent office for not doing their job when we find plenty of prior art for all the trivial patents

2. force them to open up their approval process to the public so that these trivial patents won't even get approved as a condition of winning #1.

3. Freedom!

Re:Solution: sue the patent office

[space77pup]

" Only Americans would moderate the truth as 'Troll' or 'Flamebait' " -Anonymous

That's because there's no ratings for 'Naive' or 'Ignorant'

IBM is in the hardware business

[Thangodin]

IBM's only interest in software is to have a free code base to run on their actual product--the hardware. They don't want to sell an OS, and they don't want to buy one either. Their interest is in keeping it free in order to limit their overhead. IBM got sick of having to shell out cash to Microsoft on every box they sold. The other hardware manufacturers have the same motivation. The point of Linux, for all of them, has always been that it is free and open. Anything else just doesn't fit their business model.

Re:IBM is in the hardware business

[browncs]

Well, no.

First, IBM is in the hardware business, yes, but it's not just a hardware vendor by a long shot. Check out the IBM annual report off of ibm.com for starters.

Second, IBM's interest in Linux isn't to "limit overhead". It's because IBM sees the IT industry as needing to have standards and openness (among other things) in order to grow. If the industry as a whole grows, IBM can compete and win in that growing space. Linux is just a part of this strategy. The fact that it's free isn't a key part of that -- the fact that it's open and standard is much more relevant.

Third... what "other hardware manufacturers" are there who have fully embraced Linux? Sun? HP/Compaq? Dell? I don't think so.

signed... an IBMer

Indeed

[Anonymous Coward]

Mod parent up

How does this junk make the front page?

[augustz]

This group has a long history of being microsoft funded and packed with neocons. Non-partisan? I had to laugh when I saw CmdrTaco put that there.

On the IBM point, IBM already has a giant patent portfolio. GIANT.

The difference with IBM is while they'll make money on their portfolio, they are not a dying company who'es only source of revenue are patents. They've played exceeding well with the linux world, have expressed their dislike of patents in the past, and distribute Linux so have agreed to the GPL.

Even Home Simpson could see this is a bunch of BS.

Re:How does this junk make the front page?

[CandyMan]

> have expressed their dislike of patents
> in the past

Got URLs to back up that statement? Would love to read them!

Non Partisan? Really??

[maroberts]

A rummage of Slashdot shows that they did an earlier FUD article on associating Terrorism with the GPL. It was suspected that it the institute was inflenced or funded by Microsoft

Re:Non Partisan? Really??

[GPLDAN]

This "non-partisan" bunch of wankers next project paper:

1. Why Longhorn promotes goodness in the world.
2. Why the Linux penguin is a symbol of a secret cult.
3. Hitler's Diaries, the hidden chapter on why open source is good for fascism.
4. Linus Torvalds spelled backwards means "Horrible Disease" in Swahili.
5. Why only a pinko commie who hates America and freedom would use Linux.
6. The Finnish conspiracy.
7. How the Olympics banned Linux.
8. How Al-Queda can strike all the companies in the world you run Linux.
9. How Darl mcBride will go down as a hero in the revised history books of the future.
10. Why apache causes AIDS in the third world.


These will be, of course, unbiased factual reports.

The Homer?

[_iris]

Homer Simpson!? Is that guy still around?

Misleading article: Editors asleep at the wheel

[LibrePensador]

What a sham and what a same it is to describe The Alexis de Tocqueville Institute as being non-partisan.

Not in a hundred years. Read the previous fud that they published about Linux. You particulary want to read the articles by Kenneth P. Brown.

In fact, I see this as nothing but an attempt to divide the Linux community. Linux is not a zero-sum game. It has already proven that we can all win, some may win more than others, but both users and companies are better off because of its existence.

IBM disapproves software patients ????

[modipodio]

" IBM's patent department is actively lobbying Europe to legalise software patents. They have invested millions in fighting example cases to leading European lawcourts such as the EPO's Technical Boards of Appeal and the German Federal Court in order to soften and eventually remove European restrictions on patenting software. They have also threatened European politicians that IBM might close down local facilities if software patents are not legalised in Europe. IBM has also prevented the US government from conducting studies on the value of software patents for the national economy. In the wake of the Opensource hype, IBM's rhetoric has become relatively moderate, but nonetheless it is supported by real pressure. IBM has acquired approximately 1000 European software patents whose legal status is currently unclear. Given the great number of software patents in IBM's hands, IBM is one of the few software companies who may have a genuine interest in software patentability. Once software patents become assertable in Europe, an IBM tax of several billion EUR per year may be levied on European software companies."

For further reading go here : http://swpat.ffii.org/players/ibm/index.en.html

Obligatory Jerky Boys Reference

[List of FAILURES]

Lawyer: Sue who?
Sol: Sue you people for punitive damages that you're giving me.
Lawyer: You want to sue me?
Sol: Sure. Sue everyone!!

Maybe

[Anonymous Coward]

I'll have to stay AC on this one. I got into an interesting situation specifically in regard to this, but I can't talk about it which is too bad because I wonder if others have run into this situation also.

What I can say is that the typical head stuck in the sand (or some other unmentionable place) attiude of the open source community does not help here. Lessig has complained about this on occasion.

That said, there is this saying "the enemy of my enemy is my friend". Linux's survival depends on it being an enemy to the right enemy and being essential in that regard.

Could IBM possibly mandate a proprietary component

[CompSci101]

Everyone is discounting IBM's ability to derail and/or subsume F/OSS by virtue of the GPL (that is, they won't be able to because the GPL requires that they provide the source for their contributions to the kernel). The problem I see with this is that they have the ability, due to their market presence, to incorporate a proprietary component into their distributions -- possibly protected by patents -- that is subsequently shoved down the throats of businesses they service.

In other words, they definitely have the potential/capability to "pull a Microsoft" and steer people in the direction of building their enterprises around a proprietary solution that sits on top of an open standard (in Microsoft's case, it was the open x86 ISA -- make no mistake that it's the *main* reason they succeeded against Apple and the Mac).

Imagine that IBM creates "Super-indispensable-wonder-widget-for-business" 1.0 and incorporates it into their distributions for the low, low price of $0.00 (think "Internet Explorer"). Meanwhile, they file a patent for said widget, ensuring that nobody, anywhere will be able to implement the same concept without getting sued. Businesses that are now reliant on the formerly free widget are now shocked to learn that buying the widget along with the support for their otherwise free distribution costs a staggering $gajillion.00.

Their position will be cemented, and there will be no recourse to an open-source alternative. Simply implementing the idea would require paying IBM a licensing fee.

Software patents are evil. Plain and simple.

C

IBM DOES sue over patents

[Anonymous Coward]

Anyone who thinks IBM doesn't sue over patents doesn't know anything. The company I work for was recently sued by IBM over a software patent. We have been using the same technique for quite some time (15 years). It was only shortly after the company reached a certain market size that IBM came after the company claiming that we had violated several of their patents.

This wasn't a defensive move. It was a blatant example of IBM wanting to make money.

Fortunatley enough for us, our methods were dissimilar enough to satisfy them.

The next time anyone says that "its a defensive measure" for IBM patenting everything under the sun, you can freely call them an idiot.

You underestimate the power...

[Anonymous Coward]

of the (Big) Blue side.

Counterquestions???

[Anonymous Coward]

When you think of opensource as a single product made by a single entity (like this paper does, where it says opensource it "thinks" linux) then ofcourse a succesfull patent "problem" (not just lawsuits, simply publicly "thinking" about non-free licencing condition will do) means problems for allmost anyone involved in anyway in the project... But in opensource anyone can solve a problem (that goes for legal ones as well as technical ones). And ofcourse there is always more then one way to do it. Plenty of alternatives for almost any idea *and* any implementation.

So where should a big IP boy strike to make a real diffrence in the open-source world? Is there anything for which there is no alternative? Is there anything covered by a patent that cant be done without implementing it in patented way?

Also the paper has a big mistake, it says: "Another problem is that the open source community is heavily relying upon companies in the Linux community to patent software to keep them safe from would-be villains that would go after them or their companies." Sure, redhat has "promised" to defensivly use its patents to protect open-source and this is no protection against all posible patent and patent trouble makers. *but* a patent covers all systems implementing its idea, *including propriaitairy ones*. Once a company big or small starts making any kind of patent trouble it will be picked up on the raders of the legal departments of all big players, propriatairy or otherwise. Afterall these are the people ones who will end up paying for licences if a patent trouble maker is allowed to succeed for to long and a patend stand. This is especially the case of open standards with patents in them.

The headline of this story could have been: "Is open-source in big trouble if all of the following patent protection tactics fail?", and as in most cases of a question in a headline the answer is: No And as in all these cases from tabloids to this, this is admitted in fine print at then end of the article...

1. fud
2. ....
3. money?

OSS Patent Orginization

[stumbler]

I believe it would be in the community's best interest to establish a foundation solely dedicated to creating, holding and managing OSS patents.

Without such a foundation, it will be hard --- if not impossible --- to protect the IP created by OSS projects. The patents created can be licenses (to commercial companies) for the sole purpose of creating a warchest to defend against patent suits and to fund submissions to the patent process.

Obviously, the current patent system is forcing the community in this direction.

It's imparative that we do not fall behind and lose the ability to create.

Turing and (!) embryology

[dpbsmith]

Turing was quite a guy. When I was a grad student in zoology, I was casually interested for a while in differentiation--the process by which a bunch of seemingly similar cells decide that some of them should become a liver, some lungs, etc. I ran across a 1950s paper, I think it was in Transactions of the Royal Academy of Science that touched on the subject in some depth--and my jaw dropped when I discovered it was by Alan Turing. I had to blink twice and double check to confirm that it really was the Turing-machine Turing and not other Alan Turing. (Google search on "turing embryology" for more).

Re:Turing and (!) embryology

[dpbsmith]

Sorry, posted to wrong discussion...

Re:Could IBM possibly mandate a proprietary compon

[stevedc2000]

WFIW, I agree..

And Personally, I feel that any large corporation, be it IBM, HP or Microsoft, will do whatever it feels is necessary to protect it's own position.

IBM may be the 'hero of the hour' right now, but I have a nasty feeling that this may be a very insideous form of 'Embrace and Extend'...a practice that may on slashdot accuse Microsoft of carrying out, and yet it may be happening even now, right under our noses.

In the end companies are in business to make money, not friends...

Prevention is Obvious

[SEWilco]

An idea which is obvious to someone who works in the field can not be patented.

When you announce your latest addition to Linux, don't say "I had a great new idea!". Say "It certainly is obvious that this was needed."

"Conservative think tank"

[dpbsmith]

The Alexis de Tocqueville Institution may be nominally "non-partisan," but it is usually described as a "conservative think tank."

I personally read the article as an attack on the Open Source community on the basis of its being sort of leftish or socialistic--much like Darl McBride's claim that the GPL is unconstitutional--but a much cleverer, well-reasoned, subtle attack than Darl's.

I have met the enemy...

[Ann Elk]

...and his name is Microsoft.

I cannot imagine IBM going after Open Source developers for patent infringement. Like other people on this thread have mentioned, it's just not in IBM's best interest, doesn't fit with their business model, etc. But Microsoft...

Microsoft has claimed repeatedly that their patent portfolio is "purely defensive". This is also the message spread internally to get uncooperative engineers to contribute to patent applications. At least, that was my experience.

The real question is: At what point will Microsoft feel the need to respond "defensively" to the Linux threat?

Re:I have met the enemy...

[NineNine]

Well, the fact is, we haven't seen MS do this any more than IBM. On top of that, everybody says that they need to defend their patents. VA Linux (the owner of /., OSDN, Sourceforge, etc.) say that repeatedly in their SEC filings, too. That doesn't mean they're going to do it.

Actually, I think there's enough money at stake that IBM will start doing this eventually. They're not going to lose any developer support. There's always a fresh batch of naive kids in college willing to code for free.

Re:I have met the enemy...

[Ann Elk]

There's a huge difference. IBM is (currently) trying to "play nice" with the Open Source community, and would probably prefer to not piss them off. Microsoft does not play nicely and apparently doesn't care who they piss off.

Predicting a "patent battle" between Microsoft and the Open Source development community is like predicting terrorist attacks. It's not a matter of "if", it's a matter of "when".

Re:I have met the enemy...

[NineNine]

But the thing is, IBM doesn't have to play nice. They can anally rape OSS, and still sell it. MS hasn't done anything "against" OSS other than simple marketing. MS is a much larger software company than IBM: they're not stupid. MS will probably fight OSS with direct competition, and IBM will probably "embrace and extend" OSS.

A few questions..

[Ckwop]

Call my stupid.. but how exactly do you sue an open source project? I can understand suing Redhat or Suse.. but what about non-commericial distributions?
How could a judge award damages for lost revenue when you didn't make any money out of their idea anyway?

Simon.

Re:A few questions..

[Anonymous Coward]

"How could a judge award damages for lost revenue when you didn't make any money out of their idea anyway?"

the same way that the RIAA plans to sue people that have copies of albums that they didn't buy

Re:A few questions..

[Condor7]

How could a judge award damages for lost revenue when you didn't make any money out of their idea anyway?

1) Claim that the Open Source project uses your copyrighted/patented material
2) Claim that they are giving away what you are trying to sell
3) Send out John Doe subpoenas ala RIAA
4) Sue

Re:A few questions..

[Anonymous Coward]

What about the core developers? Every project has leader (like Linus) and few core developers who decide what gets in. Can't they sue them?

AL

Re:A few questions..

[gravyfaucet]

Its kind of like McDonalds firing you for eating/taking leftover food at the end of the night. You give their product away, you dissolve a potential sale.

Too bad miguel can't.

[sproketboy]

nt

Non partisan my ASS!

[SirLanse]

This group has been on M$ payroll for many years. To call them non-partisan is the same as saying Move-On.org is not paid for by Heinz money. They may have valid points, but it is because they have an axe to grind.

Patent searches?

[Svartalf]

Since when does ANY software vendor do a Patent search unless they're filing for a Patent themselves? For that matter, does anyone do such a thing before implementing things unless they're filing for a Patent.

Yet another "think tank" with it's head up their collective arse.

How the hell did no one have this linked?

[El_Ge_Ex]

This is a site _EVERY_ developer should have bookmarked.

Search for software patents, or prior art.

-B

The Simpsons?

[Anonymous Coward]

What does Homer Simpson have to do with all this??

Source Collection

[nurb432]

This is the main reason i collect source code to everything i can.

Never know when it might dissapear due to a lawsuit..

Start off by softening the defenses

[Anonymous Coward]

Microsoft is scared to death of Linux.

IBM is embracing linux, and their huge storehouse of patents make IBM a dangerous foe to oppose.

When Linux starts *really* eating Microsoft's lunch, the Great Software Patent War will begin.

Microsoft sees this in the future so it is funding reports that weaken the view of IBM's patents in the Linux community.

This is nothing but Microsoft trying to soften Linux's defenses, so to speak. Happy to say though... it just wont work.

And honestly, IBM's software patents will help Linux more than it will ever hurt it.

Your .sig

[hostyle]

Maybe you meant "When the vice president and I are alone, it's Colon and Dick," Colon Powell on relationship with VP Cheney. ?

Unusually well written, but echoes SCOlogic

[badger.foo]

The piece is certainly one of the more well written of its kind, but it is very far from being an unbiased, fact-based article.

Quite a bit of the article seems to be based on the SCO style of reasoning, essentially that anyone who receives and uses code which was originally taken from somewhere without the owner's permission risks being sued for copyright infringement in the SCO case, patent infringement in the hypothetical case put forward by this article. The article then goes on to stress how incredibly costly patent searches are and how this makes open source software very expensive to use.

Their web site did not offer any obvious references to who funded the piece. It's a bit sad they feel the need to smear by proxy.

What if ...

[slushbat]

Say an open source company (e.g. Red Hat) with a portfolio of friendly patents gets in trouble financially. Somebody unfriendly could then snap them up (Baystar?) and decide to defend their patents.

Yep, pure a Microsoft confusion of issues.

[twitter]

The same group has another far worse article that tries to shift the bitterness and folly of outsourcing onto free software. They imply that free software will eliminate 85% of the worth of US business assets. Only Microsoft would equate a downturn of it's business with the complete destruction of the United States. Witness this foggy hyperbole:

In a widely quoted study, Baruch Lev of the Brookings Institution reported that in 1982, 62% of the market value of companies in the S & P 500 Index could be attributed to tangible assets, and only 38% to intangibles. By 1992, Lev noted, the ratio had essentially reversed: 32% of the assets for S & P companies were tangible, while 68% were intangible. A follow-up study by Brookings in 1998 reported that the asset ratio had shifted even more, with 85% of assets intangible, and only 15% tangible.

Followed by this:

Many U.S. firms are not only devaluing intellectual property via outsourcing, but are also embracing business strategies to devalue (and if necessary, eradicate) their competitor's intellectual property. Open source software, also described as free software, is the neutron bomb of IP. The strategy basically is this: businesses that make money selling hardware, selling programming services, selling hardware integration, etc. do not like being beholden to the software companies. In addition, they can increase products sales if accompanying or required software is free. So, major U.S. corporations are heavily investing in developing a widely available "free software inventory" that is open to anyone to use or customize at will. If customers only want to use free software, they will buy more hardware and services because there is no additional cost for software. Moreover, with no software costs, even hardware development, etc. becomes even cheaper. Active international campaigns (many sponsored by U.S. companies) have skyrocketed free software adoption around the world.

Let's start with the basics. In the 1990's the US stock market increased it's value by a factor of five in a speculative boom without any rational basis. It peaked out at about 1998 and a change in accounting made a scandal, with many big dumb companies listing "good will" as a multi-billion dollar asset. I defy the institute to give a numerical value to US patents and copyright instead of simple "intangibles". The stock market, which has taken considerable corrections in the last six years may still be overvalued due to the folly of outsourcing but the issues should not be confused.

Yes, having people in other countries do all your brain work is a massive mistake given the current IP insanity. It's bad in a free market with reasonable and temporary protections for real inventions with merit because foreigners will soon know your business better than you do. It's suicidal in the current US legal framework which is designed to hamper competition and has devalued real IP by elevating nonsense. If we live by our own laws, we will soon be excluded from many markets because our brains will quit working for us. Capitalism forces employers to train their future competition. Only government intervention could turn that force into something as suicidal as it is.

Now let's look at the mess that is software IP. Big dumb companies have been abusing software "IP" for a long time. Incidents of "fat line" patents, which describe no more than drawing a rectangle are notorious. As the institute gleefully notices, IP now includes business processes, algorithms and prohibitions of code that interacts with other patented code. It's a system only a big software company could love. The problem is not that free software is "stealing" well known algorithms from textbooks, the problem is that US IP laws are insane. The same laws, if enacted 100 years ago, would have given someone a patent on alphabetizing files.

Free software it the market place's desperate attempt to escape the nightmare Bill Gates helped create. Microsoft has created some value

Re:Yep, pure a Microsoft confusion of issues.

[Anonymous Coward]

Moderators: Please note that "twitter" is a known fanatical psycophant whose obnoxious offtopic rants are legend here on Slashdot. It doesn't matter what the topic is, he'll find a way to scrape in some pointless Microsoft bashing. While nobody expects us to love Microsoft in any way, his particularly tepid style of calling anyone he replies to "troll" or "liar" because he happens to disagree with whatever they're saying is well documented and should not be rewarded. If anything, twitter is the type of person that should not be part of the open source/free software community. He is an anathema to all that is good about free software.

I'm posting this so that you (the moderator) have some context to consider twitter and not mod him up whenever he posts his filler preformatted rants about installing Knoppix or whatever that unfortunately get him karma every single time and allow him to continue posting his trademark toxic crap (read on) day in and day out. You may consider this a troll - I consider it community service. And I ain't kidding.

If you're a /. subscriber, I invite you to look through some of his posting history. I guarantee that you'll be hard pressed to find someone that is more "out there" than twitter. You'll also probably notice he's got quite an AC following. Don't just read his posts, make sure you go through the replies.

For example, in this recent post twitter not only calls the OP a troll but attempts to "tell it like it is" while making some vague argument about "GNU". Yes, if you're confused, you're not alone. The reply (modded +4) proceeds to simply destroy his bogus argument. You will notice he did not reply. This is what some people call "drive-by advocacy". A sort of I'll just leave you with my thoughts here and move on to the next flamebait kind of deal. In fact, he almost never replies because he knows that his fanatical arguments simply do not hold up to any sort of discussion. It's not that he's chosen the wrong cause - he's just going at it in a completely wrong way.

More? Just read though this post and the subsequent replies. I guess this stands on its own.

More? Bad spelling in astounding conspiracy theories, more offtopic FUD and uninformed "I'm right, look at me" rants, promptly proven wrong. Worse even, twitter wants to be RMS, apparently (that first one is a winner). I mean, really. You think?

FUD, FUD, FUD, FUD, offtopic FUD, and more FUD. This guy is like the Monty Python SPAM skit, but with FUD and more FUD instead of canned meat. Amazed

Let's See If I'm Reading This Right

[Bob9113]

it can be expected that IBM will be going head-to-head with its "friends" in the Linux community.

So if I'm reading this correctly, AdTI (AKA: Microsoft) is saying IBM is going to wind up turning on the Open Source community. Hmmm, let's see, which is more likely:

1. AdTI sent their empty-headed mouthpieces to the showers, actually hired some economy, psychology, an legal theory research people, did a complete workup on IBM, and have found that IBM's psychological and business strategy makeup is such that it will eventually grow deranged and attempt to kill off its fastest growing consulting division.

2. AdTI (AKA: Microsoft) thought to themselves, "hmmm, if we... er, I mean, Microsoft (wink, wink) try to use our... er, their patents against Linux, we're going to get slapped with an antitrust suit so big it'll make our last series of losses look like a traffic ticket . . . Patents are the only thing that can stop Linux now . . . I know what we'll do, we'll foment conflict. We'll say IBM is going to turn on the Linux community; those hotheaded hackers will turn on IBM just like they've turned on Sun. Then IBM will get all pissed off and go to the patent pimp-hand to try to bring those evil hackers in line. The resulting infighting may or may not kill Linux, but it will at least keep Linux and IBM distracted while we steal a few more years of monopoly profits from the world's businesses and private citizens, and we can use it in the media to claim noone who is using Linux is safe from the scourge of IBM."

Which one do you think is a more realistic scenario?

Even Homer Simpson can see this coming.

Only Homer Simpson would allow himself to be shined on by such a transparent seduction.

Alexis de Tocqueville ... AGAIN

[Bilbo]

Once again, we find a paper from the Alexis de Tocqueville Institute which brings up real issues, and then blows them completely out of proportion. They have brought up lame anti-FLOSS articles in the past (funded by MS), and they will no doubt continue to bring them up.

The issue if patents and FLOSS software is real, and the way things are going these days, I think we're headed for some real problems in the not too distant future. However, I strongly suspect the problem is not going to come from IBM or other Open Source "friends". (They have no interest in "crushing" open source as a competitor.) It's going to come from either deep pockets like MS, with an ax to grind, or from more small-operators like SCO or other "Intellectual Property Houses", looking to cash in on the Wave.

Software patents are a real issue, but the problem is not isolated in any way to the FLOSS development model. Nor should it be a reason to shy away from using, or developing FLOSS software.

Re:Alexis de Tocqueville ... AGAIN

[Anonymous Coward]

You are exactly correct. Expect MS to be the big guns in the patents vs OSS scenario. MS has hired the man who "monetized" IBM's patent portfolio so that he can do the same for MS. Recent slashdot rhetoric has claimed that MS is filing patents at a rate of 10 per day which is the highest rate of filings of any organization, even IBM.

The up side for OSS in such a fight will be IBM. IBM currently has the largest patent portfolio in the world and they lead by a huge margin. It is common for companies to make cross-licensing agreements that cover each licensee's entire patent pool.

Shooting from the hip, we should be so lucky as to find that MS has cross-licensed all their patents with IBM. In such a case, we may be so lucky as to find that as long as IBM distributes an OSS project, that their cross-licensing agreement will cover the OSS project, thus nullifying any chance MS has of shutting down that OSS project. But again, that's just shooting from the hip and reality is sure to be messier than that.

Think of it as analgous to one of the x86 cloners like (the now defunct Cyrix) not having a license to implement the 80386 but using IBM's fabs to make the chips and coincidentally fall under the protection of IBM's cross-licensing agreement with Intel.

how similar

[kardar]

GNU/Linux could sort of be considered a Unix "clone", so to speak, and it is very closely related to BSD. Hanging very close to something that already has existed since 1969, the problems might occur in newer, additional functionality.

A patent would not just affect one person, so the whole thing about not being able to afford to litigate when there are millions of people around the globe that would also be paying license fees doesn't really get down to the heart of the matter.

This is why I think that it's good to have larger organizations involved, at least to some extent; even though a small organization might get hit up or targeted, larger organizations will be affected; this will act as a natural deterrent, discouraging the "targeting the weak" strategy.

Open source is for everyone, so everyone gets to defend it. Right? So if you attack open source, you attack everyone. Not a very good idea, if you asked me. I'm not saying it won't happen, but I do think that there are some people who like being paranoid; and there are some people who are just determined to smell that veritable blue cheese on their moustache, being convinced that the entire world smells very awful for some reason.

Is there really anything that can be done about the problem? Perhaps there is, but I know for a fact that there will be people who will make the whole thing seem a lot worse than it really is, there will be people who will exaggerate and point fingers for political purposes. I think that a lot of the percieved problem is coming from the very people who are proclaiming that there is a problem.

We need to look at what can be done, and then do it. POSIX compliance is a good thing. Complying with the Open Group's specs are a good thing. Stick with the tried and true, don't get too fancy. Cooperation, cooperation and faith are the most important things. Keep a positive attitude, and do everything you can to prevent, and solve the problem. I don't see how whining, moaning, complaining, or pontificating are going to do anything to make the situation any better. Speaking of which...

defensive patents

[mhamel]

That idea about defensive patent is all wrong. It should be clear that prior art is the best possible defence against patents. You don't patent something so that you won't be sued about the fonctionnality you are patenting.

There was a slashdot discussion last week where a Microsoft director was just explaining on his blog what Microsoft meant by defensive patent. He compared it with cold war. He stocked an awfull lot of patents and traitened everybody that if they use patents against Microsoft, they will use their portfolio against them. IBM did just that with SCO. Among they contersuits that were filled, they contersued on some unrelated patents infrigements.

Maybe someone can find what it was.. I don't remember it on the top of my head.

THANK YOU!

[Anonymous Coward]

I amazed this wasn't mentioned earlier.

they can ..

[Anonymous Coward]

.. for just the same reason they sue users of a p2p network that didn't earn a penny for sharing their files.

How is this different than the USPTO database?

[Anonymous Coward]

My criteria for something is if they cannot articulate in 25 words or less why I should bother with it, then I won't.

Software Patents are NOT productive

[Anonymous Coward]

This whole issue of software patents gives me a pain.

I write software for a living. My goal is to accomplish something in a product that is useful to my customers. Now, if I independently develop a technique that someone else has patented, does that make me liable for patent infringement?

I do know something of the current state of thinking in the legal system and it rather supports the stance of Linus and the OSS community: ignore software patents. The reason is quite simple: if it can be shown that you were aware of the patent, whether or not you actually had input from it while developing infringing code, it is quite likely that you will be found against in court (disclaimer: IANAL [thank GOD!]). Therefore, the worst thing you can do is to actively look for any patents that you might infringe upon. In fact, the more knowledgable you are about software patents, the less code you can actually write because of the off-chance that you might accidentally re-develop an idea that has already been patented!

This whole thing stinks! Patents were originally proposed as a idea to promote innovation. Instead, they are now stifling it. Where would we be if the creators of the FFT algorithm (Cooley-Tukey, I believe?) had been able to patent it when it was developed? Not only that, IIRC there was quite a bit of discussion about prior art even when they published, so the entire mess could have been tied up in court for 10's of years rather than being used as extensively as it was.

As for this particular article about IBM being a threat with their patent portfolio: pure FUD! IBM has primarily used their patent portfolio as a defensive tool.

I think Linux has far more to fear from Microsoft, who recently has been patenting everything in site. As has been brought up elsewhere here, Alexis de Tocqueville Institute has a history with Microsoft. This looks like yet one more attempt to attack the legitimacy of Linux while ignoring the shady parts of Windows' and Offices' pasts! Microsoft's stand on IP has a rather hypocritical ring to it when measured against their shenanigans with Stac, Burst, et al. They respect nobody else's IP, but proclaim loudly how their's must be respected!

Statutory Invention Registration already available

[Jayfar]

Statutory Invention Registration already exists at the USPTO with fees somewhat less than for a full-fledged patent.

Consider the issue more carefully.

[Futurepower(R)]

Suppose a company applies for a patent. Before it is issued, a FOSS author independently begins using the idea in the patent. The fact that the FOSS author found the same idea in routine programming is a defense against the patent's claim of invention.

They already have!

[xyote]

It's called RCU. Linus made sure that Linux had a permanent license for the specific GPL'ed contribution before he would allow it in.

Flawed article

[Performer Guy]

Companies do not perform patent searches on their R&D, the very idea is utterly ludicrous. Infact they studiously avoid it. Adobe for example bans engineers from searching the uspto.gov patent database because if they know about it they are aware of any infringement it tripples damages.

Typically you perform patent searches on stuff you intend to file and that is often after the R&D has been done. This is where due diligence kicks in to make sure you are claiming a novel invention.

I can't emphasize enough how utterly insane it would be to expect engineers to search for patent prior art before writing their own creative code. It's hard enough to do this w.r.t. a specific invention for exampel looking for prior art as it relates to LZW or the latest JPEG claims. However with the scope of things your average engineer touches to produce anything of reasonable complexity it would be impossible to perform a thorough search or even know all the areas you should be searching in.

Let's not let these ignorant fools dictate or change the expectation of what engineering is about and lets not allow them to redefine what due dilligence is.

Author Clueless or a Troll

[Anonymous Coward]

. . . but whether open source firms will be tremendously successful- to rival even the likes of a Microsoft or IBM.

Compared to:

. . . how much longer can we expect to see hardware companies such as Hewlett Packard or even IBM stay friendly with the open source community? How long will it be before these relationships go from cooperative to predatory?

At best, this Ken Brown is clueless. At worst he's a troll for Microsoft, trying to stir up trouble between IBM and the open source community.

The top quote is the only time Brown's article mentions Microsoft and it does so only in the context of Microsoft being "tremendously successful." No mention is made of its predatory monopoly behavior. No mention is made of internal documents that make clear Microsoft regards Linux as a foe to be crushed by any and all means.

Given Microsoft's covert backing of SCO's copyright lawsuit against IBM/Linux, and Microsoft's recent move into patenting everything it can (10 applications a week), it is clear that Microsoft intends to use patents to attack open source and Linux. That's a fact. What IBM may or may not do is idle speculation. Yet Ken Brown says nothing about the first and makes much about the second. Very suspicious to say the least.

Perhaps someone should see if this Alexis de Tocqueville Institution (or Ken Brown personally) has gotten or is waiting, cap in hand, to get money from Microsoft. As the 'good book' warns, money lies at the root of all sorts of evil.

Mike Perry, Inkling Blog, Seattle

For all those who shun "intellectual property"

[paroneayea]

It may be interesting for you to note that IBM prides itself on being the head of the intellectual property world.

Ask the obvious question:

[OmniGeek]

First, note that Linux and OSS *will* be the dominant market paradigm in software very soon; arguably we're almost there already. Those who stand in its way, be they companies or nation states, will fall behind the rest.

OK, why do I make that absurd, starry-eyed visionary statement? 'Cause China, India, Brazil and others will continue OSS development as their escape from American/Microsoft domination, and software patents be damned. There *will* be lots of people developing OSS even if the US and EU suffer patent constipation. Our loss, their gain if we don't keep up.

Back to our story: IBM has apparently recognized the oncoming OSS locomotive, and is using it to their advantage. This rests to a significant degree on their being trusted by the the OSS community -- all those grunting golden geese out there building this wonderful stuff. IBM gets great benefit from being a respected OSS player and user. There's *no way* IBM can benefit from bucking this trend and trying to damage OSS, or by attacking OSS projects and thereby losing the trust of the community. The SCO example should show them this if they haven't already learned it, which I think they have.

Ergo, I believe that IBM, for purely self-interested reasons, will continue to be an important friend of OSS, or at minimum a friendly neutral party. If anything, I think we can expect IBM to use their patent portfolio to defend OSS efforts, not to attack them, again for purely self-interested reasons that just happen to benefit the OSS community at large.

Help to keep part of the world free of patents

[Anonymous Coward]

The struggle in Europe is not over yet, the EU parliament decided already AGAINST software patents but the EU council wants to push them through regardless - so please support the FFII, it is important: http://www.ffii.org

- Sign the petition
- Sign the Call for Action II
- write your MEP, MP, government, media,...

The Only Way This Could Happen ...

[StormyMonday]

... is if an open source developer used a patented idea in a piece of sorfware. IBM or whoever is presumed to be familiar enough with their own patents to avoid doing this accidentally. If a develper came up with the idea independantly, it could get nasty if the patent holder was greedy. Wait until everybody's using it and then yank the chain.

As far as I'm concerned, independant development is prima facie proof that the idea was obvious, and therefore the patent is invalid. The Patent Office doesn't agree with me, however. More BMWs for lawyers.

Way off base

[Anonymous Coward]

"IBM will be competing with large Linux-based developers and distributors themselves. As the deployment of Linux increases, it can be expected that IBM will be going head-to-head with its "friends" in the Linux community. It is unquestionable that the biggest irony of all will be when Big Blue resorts to using its war chest of patents against a "friend" in the Linux community."

IBM doesn't really care who's providing the software, as long as it's running on IBM hardware.

Re:Statutory Invention Registration already availa

[HiThere]

I note your link doesn't indicate the fee. I've never heard the fee for such a filing given.

OTOH, the real cost of filing a patent is the lawyer time to write the bloody thing, and I doubt that a reduced filing fee would make much of a dent in that. (Or is there a simplified method for that?)

Re:You sir, are an asshat

[Anonymous Coward]

How about if I had used the term "cock-knuckle?" Maybe "turd burglar?" Does "pus-infected cum bubble" suit your delicate palate?

Even Homer Simpson can see this coming.

[iminplaya]

Even I could see this coming.

See my posts
See my posts
Made from real gorilla....uuuhhh...errr...that doexn't work...Nevermind

Statutory Invention Registration (SIR)

[Specter]

We need a non-profit that will work with Open Source developers to file Statutory Invention Registrations (SIR) than can be used to prevent some of the patently silly behavior that's been going on recently.

I understand the process is cheaper than doing a full blown patent so it may not be as unreachable as it seems.

See:

Types of Patents

Myth of intellectual property

[swerk]

You're right, it's complete nonsense to "own an idea". It's like claiming to own math, or own musical notes.

Unfortunately, those in power in the aforementioned "western" countries today can be pried away from common-sense, grounded-in-reality thinking by fancy doublespeak coming from the same sources as their campaign funding, and from lobbyists hired by corporations who would like to do something as ridiculous as own ideas and math.

Patents, copyrights, all the stuff that folks try to lump under the term "intellectual property", were created in the first place to keep inventors inventing, to give positive feedback to those who came up with innovative ideas. One way to provide such positive feedback would be a short-term monopoly on the new idea.

Unfortunately, even creative people can be greedy and/or lazy. Or sell-outs. Copyright life was lengthened many times. Patents were granted for all kinds of ridiculous and obvious concepts. Laws against infringement became more strict. Politicians heard plenty from lobbyists and campaign-funding corporations about how valuable such things are and how greatly they need protection in order for there to be any progress. It was bullshit, but the politicians heard very little to the contrary.

It got pretty ridiculous before I even became aware of these matters, and I think the same goes for a lot of people, given the amount of it-just-hit-me type alarm being expressed over these subjects. We're now on the defensive, with organizations like the EFF scrambling to get enough people to contact their senators and representatives in opposition to further "intellectual property" laws being bolstered. It's all we can do to create a little resistance, let alone propose disassembling some of the damaging legislation that's already in place.

Already happened... SCO Anyone?

[mr_zorg]

By contrast, open source developers and distributors do not engage in patent searches, thus, there is a real possibility we will see a major patent fight involving open source, sooner than later.

Um, can anyone say SCO? It's already happened! And here I thought /. had the exclusive rights to restate what's already happened...

Re:This assertion is pretty stupid because of the

[AnotherBlackHat]

If they would have read the GPL it says that you license *all* your patents with that software for that software.

Well, to play SCOs advocate for a moment, that would only mean that by refusing to license their patents they aren't able to legally distribute the software.

They could claim they've been illegally distributing the software, and their patents are still in force.

-- not a .sig

Patents vs. Copyright?

[pluvia]

That's an interesting point, especially as it applies to patents and not copyright. I think my sibling posters were mostly alluding to the NET act, which only applies to copyright. Here's a quick summary:

The 'No Electronic Theft' Act

On December 16, 1997, President Clinton signed HR 2265 -- the 'No Electronic Theft' Act -- into law. The act, sponsored by Representative Goodlatte (R-Virginia), was passed in the House on 11/4/97 and in the Senate on 11/13/97.

HR 2265 was viewed as "closing a loophole" in the criminal law. Under the old statutory scheme, people who intentionally distributed copied software over the Internet did not face criminal penalties if they did not profit from their actions.

The act was strongly backed by the software and entertainment industries but opposed by science and academic groups.

Of course, anyone can sue over anything civilly, which is apparently the course of action with these patent lawsuits. Perhaps a lawyer can chime in on the boundaries of patents -- e.g. is it illegal for me to build and use a mechanism which incidently infringes a patent? Can my family (or friends) then use that mechanism? Can I then give that mechanism away for free?

Public Domain

[Audacious]

All Patents and Copyrights, once their lives are over, fall into the Public Domain. However, you don't have to get a Patent or Copyright to put something into the PD. You can just put things into it. Further, once something is in the PD - it doesn't mean you can't still make and sell the item. It is just, like the GPL, anyone can use the item in the PD so anyone can make money off of it. (Many companies got their start in just this manner. Like Ben & Jerry's Ice Cream. They didn't invent Ice Cream but they also did not have to pay anyone to start selling it either.)

So remember that the next time you pick up a cold drink. It is very likely that whatever Patent or Copyright was on that cold drink is now in the PD. (Not that that means that they are going to rush out and post exactly what is in their drink or how they make it. Nor does it mean that you can call it "Coke". Because that term is a Trademark - which follows a different set of rules. But the original patents, if any, are retired to the PD.)

So if you want to defeat the rush of software patents - file your patents into the PD. Then if the companies want to say anything they have to first get it back out of the PD. Which is just as hard to do as it is to defend their patents.

On IBM:

I do not think that it would be in IBM's best interest to sue anyone over a patent issue. First, there would be the backlash of everyone else who holds a patent who would then turn around and sue IBM. Second, IBM just got out from under the last of the government's scrutiny from the antitrust case. Last, it would cause a rise in anti-IBM sentiment which would cause software to be written with clauses which states anyone but IBM could use the software. Just like some software used to have the anti-Microsoft clause in it.

non-partisan????

[Anonymous Coward]

AdTI may want to be non-partisan - however all of the opinions and warnings, that I have seen, coming from AdTI are nothing else but the more expensive version of the daily over-the-counter Microsoft FUD.

2 Reasons to Counter Their Argument

[the_REAL_sam]

The scenario described by the original post sounds like nothing more than unfounded hypothetical doomspeak. So I'll counter with well founded hypothetical hopespeak. :)

Having an army of lawyers and the opportunity to sue does not imply that a lawsuit will occur. Here are two general reasons why such lawsuits might NOT occur:

(1) From the hardware seller's perspective, linux could be viewed as a $100-200 [=cost of windows?] customer incentive coupon towards purchase of a PC. As linux grows in popularity, so does that "incentive value," from their perspective.
(a) A patent lawsuit probably wouldn't gain them that much.
(b) "Killing" linux might lose them that $100-200 incentive.

(2) Why take the piano from an orphanage?
(a) Linux is a public benefit. Consider the PR ramifications. For example, has SCO's recent legal gambit made you MORE, or LESS likely to buy their products? [assuming linux isn't one - hehe]
(b) Consider the "i'm happy with my life" factor. Corporations are run by decent people, I presume. And most people dont want to be Eboneezer Scrooge.

Re:Already happened... SCO Anyone?

[Jane_Dozey]

No, SCO arn't arguing a patent, they're arguing about copyright (or contract law, I seem to remember them changing their mind one way or the other).
The SCO Vs IBM case isn't anything to do with patents.

Wrong read on IBM...

[rdean400]

I could see IBM taking legal action against another Linux distro using their patents if they had their own Linux distro. However, they don't, so suing any of their friends in the Linux community would be counterproductive and stupid. That may have been true of 80s/early 90s IBM, but it's certainly not true of today's IBM.

Not entirely FUD

[Trogre]

Whatever we think of this institute and where they get their funding, they do have a point.

People, this is a storm cloud on the horizon. We need to be ready. I don't think any open-source developer hasn't really seen this one coming.

Many many open source products could be hauled over the coals tomorrow for violating any number of patents, usually in a corrupt US court of law, but shortly it looks like such projects won't be safe in Europe or Australasia either.

What can we do? I'm not sure, but there must be some senators/MPs who haven't been bought out who can be shown how trivial/absurd most of these patents are.

IBM?

[Anonymous Coward]

It is unquestionable that the biggest irony of all will be when Big Blue resorts to using its war chest of patents against a "friend" in the Linux community."

Hmm... I wonder what effect that will have on IBM's sales. Will IBM cut its own throat?

There is a very important rule in this world, and it goes something like this:

"The toes you step on today may be connected to the butt you'll have to kiss tomorrow."

Re:IBM psychos (OT)

[Anonymous Coward]

Very offtopic but maybe someone will find it informative:

Psychopathy: a personality disorder that makes a person cold, fearless and manipulative. It is not a disease, rather a functional error.

Multiple personality disorder: A symptom occurring during some kinds of psychosis (eg schizophrenia).

I agree that big corps can have both though.

If you program for a living

[Anonymous Coward]

then prepare to kiss your career good-bye!

Alexis de Tocqueville Institute, as noted elsewhere in this thread, has a long history with Microsoft. Knowing this, it is easy to predict exactly what Microsoft, not IBM, is planning. And it isn't a coincidence that Microsoft has been filing for patents at the rate of 10 a day recently.

It looks as though Microsoft intends to make it impossible for anything without $billions to be able to write software unless it is proprietary. Think about it; unless the source code is a deep dark secret, Microsoft will be able to examine the code and find something, anything that will infringe on a patent they hold. As they have done in the past, they don't even have to have a case; $billions in their war chest is enough to guarantee that even a frivolous lawsuit will bankrupt any individual or company (hell, probably some countries) long before the case is decided.

And how do you protect against that? Why, only one way: no one sees the source! And, given the recent legislation that Microsoft recently bought, errr, lobbied tirelessly for, it will be illegal to reverse engineer the bianries to prove that a proprietary solution might infringe on a patent.

But Open Source? Why, the code is right there! And the merits of any case will have no bearing on whether an opponent will prevail. Just look at the farce SCO has been able to get away with over the last year.

Make no mistake; this is a calculated long-term strategy that Microsoft fully intends to put into practice. Right now they accuse IBM. But very soon we will see exactly these actions from Microsoft. They will bury not only Linux, but any Open Source software and any small startup with the audacity to share source code withoput $billions in the bank. Soon, the only way software will be developed is if it is done for a very large company, proprietary, and owned by the company, not by any individual. And programmers will do it at the rates they want, otherwise they will be sued out of existence for writing any code whatsoever!

Time to train for another career or accept and obey your new software overlords.

Will happen? Yes, Honnest mistake? No

[Anonymous Coward]

I do believe this will happen eventually but I don't believe it will be the result of an honnest misunderstanding.

Patents are filed based on what is likely to be created instead of what has already been created.
Invetors had to have a working prototype before getting a patent once apon a time. Today invetors get patents out of pure speculation.
The problem is that the patent insures the inventor will make money on the idea reguardless of who actually builds it.

"There is nothing new under the sun"
Chances are any patented item was forseen at least 5 years prior in some "Technology of tomarow" artical.
(Everybody dose one every year)

Also there is usually chatter by people who use the technology about the "next logical step".

Everyone in E-Commerce was waiting for the day when "one click shopping" would be safe before implementing it. Security conserns were keeping it from happening.
Once security was reliable enough it would be the next logical step. But Amazon patented it BEFORE it was safe. No prior are not becouse it was a new novile idea or even that Amazon jumped some technological barreor but becouse it wasn't safe and Amazon didn't change that.

TiVO: The hard disk design was a novile and unique invention that deserves a patent.
The only issue here for me is that this dosen't mean TiVO should have a patent on the idea of a PVR but simply the WAY they do it in the TiVO. Everyone else will need to do it a diffrent way.

That is how it will happen in open source.
Remeber the race to get a jurnaling file system into Linux? What if one of those projects filed a patent on the idea? And what if that was one of the projects that never produced any results?
They have the rights to it for no other reason that they clammed it first.

Patents are the "First Post" of intelectal property. It's not the first person with a new idea or the first person with a new way to do something but the first person to stake a clame.

programming Blogs?

[mabhatter654]

What about a programmer's idea blog section on Sourceforge. A place where users or programmers can post their crazy ideas publicly? At that point the "idea" would be considered public domain and not patentable. Once there was enough of a body of work built up, it would be relitively easy to disprove patents in a court of law. Given enough shot down patents, the PTO would HAVE to change it's practices or have it's credibility laughed out.

the other reform we could ask for is a competition-styled patent system. Rather than issuing a great many poorly thought out ones, just issue a limited number per year and make companies compete to win those spots. You'd give them 3 tries to win then tell them time's up! It would cause more attention to be paid to fewer applications making the burden of proof much higher than in the past.

IBM Europe position on software patents (2001)

[JPMH]

IBM has publicly expressed its disapproval of software patents, citing, among other things the cost of litigation.

No.

IBM Europe make it quite clear in its official response to consultations on the patentability of software in the EU, that it supports the patentability of software, and wants to see the software patents upheld, that have been controversially granted by the European Patent Office:

Patents abound in all areas of technology regardless of whether the technology is implemented using computer programs or not. Innovation in technology cannot be differentiated on the basis of whether computer programs form part of the invention. To adopt a more restrictive approach to patenting would prove a disincentive to innovation in almost all fields of technology to the detriment of research and development in Europe.

But IBM Europe thinks that things have gone too far in the United States, particularly as regards the patenting of business methods:

We argue that to require no more than a "useful, concrete and tangible result" in the broad sense currently being applied in the USA invites the patenting of ideas that may have been visualised as desirable but have no foundation in terms of the research or development to turn them into practical reality. IBM spends very substantial sums to develop products for the marketplace and must ensure the supply of products that are reliable, cost effective and meet the needs of the customer.

The quid pro quo in the grant of patents is the disclosure of technology that rests on the research and development activity generating the inventions. The rationale that applies for protecting technological innovation by patents is therefore absent for those business methods where no such technical contribution is made. It is important that the level of protection granted by a patent is commensurate with the technical contribution the inventor has made to the art. The danger of opening the door to the unrestricted patenting of business methods is that patents may be granted that foreclose business ideas with no requirement to disclose the technology that makes them practicable. Thus, whilst IBM supports the patenting of computer program implemented inventions based on technical innovation, we see no benefit to commercial activity in Europe from the patenting of commerce itself.

I can see now that you are correct.

[Futurepower(R)]

I can see now that you are correct.

Perhaps the underlying problem could be solved by creating a registry database of disclosures of patentable ideas. Anyone having an idea that he or she doesn't want to patent could contribute. If there were 10 million entries, software patents might be seen to be of less value because of the possibility there was prior art in the database, that was not found with a search engine.

For proof of prior art, the original contributor could come forward, and would then have a complete defense against the patent.

Re:I can see now that you are correct.

[servoled]

The main problem with software patents now is that there is no good unified database of what has already been done. There have been countless projects which have been started up, developed for a while and then abandoned after the developer got sick of working with it. If there was a database of all these projects from over the years it would make the examiners job a lot easier and there would be a lot more relevant prior art found.

As far as the threat that prior art may be found based on the number of entries in a database I don't think that would have to much of an effect of the perceived validity of an issued patent. A patent is assumed valid in court simply because it issued, it would be up to the defendant to prove otherwise. Although such a database might make it easier to find that proof.