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

[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

[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

[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.

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.

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!

-

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......

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.

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

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.

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.

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.

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

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: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: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.

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.

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.