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

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

[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

[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!

-

How soon they forget....

[44BSD]

Non-partisan, you say? I think not.

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.

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: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.

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

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

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

[FattMattP]

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

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: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

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

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.