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

[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)

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

[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

[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.

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

[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.

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

[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

[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

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

[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!

-

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"

[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.

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.

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...

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.

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

[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

[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.

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

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.

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: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.

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.

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.

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.

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

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!

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.

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.

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?

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!!

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

You underestimate the power...

[Anonymous Coward]

of the (Big) Blue side.

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.

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."

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

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.

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".

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.

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...

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.

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.

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.

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.