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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.
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?
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We spoke for about a half an hour. I don't recall a thing we said. - Colorblind James Experience
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.
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......
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.
Slashdot Syndrome: the sudden, extreme urge to correct someone in order to validate one's self.
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...
"-1 Troll" is the apparently the same as "-1 I disagree with you."
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.
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Andre
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.
Remembering that you are going to die is the best way I know to avoid the trap of thinking you have something to lose.
Nope. This is not reasonable. I don't think you have a very clear sense of what "obvious" means in this context.
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.
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.
null sig
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.
> 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.
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
The Sun is proof that we can't even do fire properly.
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.
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.
"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
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.
Your Servant, B. Baggins
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.
"No matter where you go, there you are." -- Buckaroo Banzai
.. for just the same reason they sue users of a p2p network that didn't earn a penny for sharing their files.
> 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)
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.
"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.
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.