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Maybe Software Patents Won't Kill FOSS After All
Roblimo writes "Lawrence Rosen, attorney for the Open Source Initiative, doesn't seem to be as worried about software patents' effects on open source development as some Slashdot readers. In this article he says, 'Don't be too paranoid about the patent problem. It's a real problem, but not a catastrophe. Any patent owner that tries to assert its patents against open source software has many hurdles to leap before the royalty checks start to arrive.'"
When the Great Patent War commences next year, it won't be about getting checks - it will be about scaring people away from Open Source solutions to problems previously solved by proprietary products. The companies that will asserting the patents don't need and don't want the money - they want the products dead and customers scared off.
So the main reason it's not likely that an open source project will get sued is simply because they don't have any money. Unfortunately what would likely happen if they did sue is that it would cripple or kill that project. Fortunately I'd suspect that if some open source project had a big company (say Sun or IBM) backing it, I doubt this whole thing would be a problem.
Any patent owner that tries to assert its patents against open source software has many hurdles to leap before the royalty checks start to arrive.
Except much of the concern is not only paying out royalties, but being dragged through useless court proceeding after court proceeding by companies that find it much more to their benefit to drag OSS through the mud, and strike fear of legal action into the hearts of OS proponents.
There comes a point where it doesn't really matter if you win in court, particular if one hsa gone through a costly multi-year court battle just to be proclaimed "innocent" of any wrongdoing.
Its the fear factor to stop adoption (stop market loss not profit). I dont think MS wants royalties from OpenOffice, they want people to be too afraid to use it.
Its the cease and desist letters that come along first...
You cant get blood out of a turnip, but you can make the turnip's life miserable...
---- Booth was a patriot ----
Perhaps the average patent-holder has many hurdles which may prevent it to sue OSS developers, but the real enemy (read, Micro$oft), has time and money and lawyers and the will to harm us.
While the points in the article show that patents aren't easy to use in order to scrub out OSS projects, I know plenty of people would simply fold when faced with the prospect of a long expensive legal battle with a team of lawyers who have funding that is, for all realistic purposes, limitless even if the leader of the open source project knew they were in the right.
If you write something that [big company] doesn't like, they sue and you have to either drop the project that's taking up time anyway or fight and risk a chunk of your own money then you are quite likely to pick the path that doesn't potentially leave you in the gutter, particularly if you have a family depending on your income and the program was just a little 'spare time' project.
The true legalities may not be too bad, but the big corporations have yet another way to threaten the little guy and I wish we could count on them to do the right thing and not abuse there cash reserves by draining people dry, but past experience shows that companies often don't have this kind of common decency.
You know, the US patent system doesn't really care if you have prior art. It has been seen plenty of times, with all these ridiculous patents getting through. Or perhaps they do care, but with companies filing huge amounts of patents (if Microsoft alone files 10 patents a day) they quite possibly don't have the time or resources to check every one of them.
I believe it would actually be possible to patent breathing - or perhaps "a way to gather oxygen from the air by using organs located in the chest" - if somebody actually decided to try that..
Indeed, it's hard to sue someone for money if they don't make any from the open source software they write. It would at most only halt the development until there's an alternative to that part that's patented.
But I think it's more likely there's more prior art to debunk the patent and drop any case in court.
home
There's a bug in the idea of doing patent searches.
To reproduce this bug, go through the following steps:
1. Look for patents in the area where you're working.
2. Find a patent which is related but not identical to what you're doing.
3. Continue what you're doing.
4. Get sued for infringement by the patent owner.
Expected:
Someone gives you credit for due diligence.
Actual:
Owner of related but not identical patent asks for triple damages for "willful infringement" using your knowledge of their patent as evidence. The threat of paying out three times as much forces you to settle unfavorably.
And as a seperate problem, no, you can't "just" claim prior art. You have to be dragged into court, comply with C&D letters for several months, and give huge amounts of money to lawyers. Individuals simply can't afford this - for any project smaller than Linux itself, the maintainers would likely give up for financial reasons. Our legal system is too bloated and ineffective to rely on it as a safety valve for the chilling effects of patents.
Mr. Rosen is a smart guy who knows about open source. (And I appreciate his "summary" at the end of the article, for those of us who never RTFA ;-). But I
find his recommendations a little hard to swallow.
1. Don't be too paranoid about the patent problem
The guys with the patents only have two hurdle to cross: writing the cease and desist letter, and writing the FUD press release ("Linux stole are technology"). This *first* step in patent litigition can kill an open source project, never mind the *last* step (getting the royalty checks).
Sure, maybe Mozilla and Apache will survive a patent attack. But what about a smaller open source project? The "guy in mom's basement". These guys will just pull their projects, regardless of the merits of the case.
2. Don't try to out-invent the big guys.
Don't try to out-code them either, right? Wrong!
If open source can produce a product that competes with a multi-billion dollar company's product, it can pool its resources to generate patents. We should find a way to achieve this goal.
I bet many clever open source programmers can find all kinds of stuff to patent in their code.. do you use a checksum to save some computation? Use a clever algorithm to distribute work among nodes? Transfer data out-of-order to exploit some optimizable properties of data? Look in your code, start thinking in terms of patents. Keep your bar LOW. Even the simplest thing is patentable, as we have seen time and time again.
Take software licenses as an example: before the GPL, software licenses were an afterthought.. you just wanted to make sure you got credit. But the GPL is a tactical weapon that opened people's eyes to the issue of software licensing and the world of draconian EULAs we now deal with. Even if you don't like the GPL you must agree that licensing is almost as important as the quality of the code itself.
We need to have the same eye-opener when it comes to patents. Maybe one of the big guys like FSF or Apache should take the first step and start applying for patents. Start a "patent fund" to research and file the patents.
3. Conduct a reasonably diligent search for patents we might infringe.
Why? What do we do when we find a patented technology that has no substitute (like "1-click ordering", the best you can do is make it "2 clicks")? Might as well ignore them until the C&D comes. Let *their* legal departments do the work.
Design around patented technology wherever possible.
What if it's not possible? What if the patent depends on, say, some part of a public spec? Either violate the patent, violate the spec, or go home. But generally this is good advice. If you know you are violating a patent, come up with something better, if you can..
5. Identify allies who can defend us with their patent shields.
This is good advice. Find a company with a "patent promise" that they won't litigate patents offensively.
6. Withhold our software from those who sue us for patent infringement.
Uh, okay, that'll show em. Hey microsoft! Your license to distribute Linux has just expired! TAKE THAT! And how will "the guy in the basement" enforce this anyway???
Make no mistake, the bigco's (microsoft in particular) are salivating at the thought of destroying open source and painting them as "IP theives" all in one blow.
If the sky isn't falling yet, it will be someday.
I would add a #7 to his list:
Make sure the business world understands the value proposition of open source and software freedom. It's not about altruism or people sitting at home saying "I'd like to write a content management system today, for free". It's about talented people solving real business problems for their own benefit. It works in the free market because it *is* the free market. It's not anti-competitive, it *is* competition: you're as good as your code, and no better.
When microsoft tr
The problem is, you might "invent" something as you write your code, but somebody already invented it and patented it.
Example: when I was a kid on the apple II I discovered that you could make animations by using XOR to erase and redraw. Did you know that's patented?
Part of Rosen's argument is based on the fact that patent suits are hard to win in court. The other part of Rosen's argument assumes that anyone using patents against open source is looking for money, i.e., royalty payments.
Both of those arguments fail when applied to Microsoft. Microsoft would never use its software patents to collect royalties. It would use them to make companies afraid to use open source and compel them to use Microsoft's products.
Thus, it does not matter if Microsoft's patents are valid or not, when a company gets sued, Microsoft will offer a deal similar to this: Stop using open source and buy our products.
The money monkeys in charge of the companies will fold because it will be more cost effective to simply buy Microsoft's products rather than risk losing at trial. After Micrsoft wins a few of these "settlements" open source will begin to look unattractive to anyone else considering it.
If someone says he and his monkey have nothing to hide, they almost certainly do.
Eli Whitney had a patent, but he couldn't sue the thousands who made their own. Also, lawyers will only go after the deep pockets, so if you are an infringer living in your parent's basement, they can't justify any action that loses them money.
The latest Slashdot meme.
simply don't look them up
don't care to know of them.
create your work, and enjoy it.
[my step]
if it steps on someone's toe (which is doubtful) then ignore him until you have positive proof presented that you did in fact do what you did with willful intent to violate his patent... in that case, he can't
What's wrong with that? In the software industry, the implementation is what costs money.
See - it's took me 30 seconds to prototype that. The actual investment would have been filling in that comment. And if someone else can do that part cheaper, then let them - everyone gets cheaper widgets, and the company's real investment, the implementation, remains protected by copyright law. This also gives them an incentive to improve their implementation, whereas if they patented it, not only would they not need to improve it, they could keep others from improving it.Although big corporations have very deep pockets, they also have something called a reputation that they value greatly. Attracting the wrath of IT managers throughout the world is no small matter to them. For this reason, their claws often remained sheathed.
Might I suggest that it's a new breed of company, small or mid-sized ones, whose very raison d'etre is to collect valuable intellectual property, that we have the most to fear from. They've got everything to win, little to lose, and they don't give rat's ass about their reputation.
One example - SCO. A near worthless organization (about $10 million in market capitalization) until they discovered they "owned" Linux. They have been accused of ties with Microsoft (there is some evidence through BlueStar), but I'm not convinced. The Justice Department is ever watchful these days.
A second example - Teleshuttle Technologies, subject of a recent post ( http://yro.slashdot.org/article.pl?sid=04/07/21/15 39205&tid=155 ).
Expect to see more of them as time goes by.
And slashdot posters by and large get it right. Now there's something that doesn't occur every day.
A few points both have missed so far, though. One is that a methodical patent search is impossible; patents use such opaque and obfuscatory language (often deliberately) that there's no way you can search for a patent on any given technique you've been using. Further, it may be a submarine patent.
Prior art is largely irrelevant because the patent system is broken; the patent office doesn't seem to check it, even when the prior art is other patents (see, e.g. the LZW patent mess). Part of this is because patents (as I mentioned above) are essentially unsearchable. Prior art works when you've got deep pockets and the lawyers to overcome the assumption of validity. When you're Joe Open Source Programmer, you're screwed as soon as they file a lawsuit (assuming you had the nerve to ignore the C&D), regardless of how much prior art there is.
So, on his recommendations --
1) is good. Not because the patent problem isn't serious, but because there's nothing you can actually do about it. Like Global Thermonuclear War, you just have to plan for it not coming.
2) is pointless. Our own prior art won't prevent the patents from being issued
3) is a mistake. Each patent you discover is more work you have to do to avoid it, if that's even possible, and more chance of getting nailed for willfull infringement. Doing a patent search under these circumstances is like searching for mines with a metal probe.
4) is good -- if you happen to know about the patent, you should avoid it.
5) is fine, if you have allies you can trust. You probably don't.
6) Pointless again. So you terminate their right to use their software. They're either a litigation company which does nothing, a single-product company which is trying to force the world to use their product, or a giant megacorporation. The first two won't use your software anyway, and the last has the lawyers to spit on your termination agreement -- not to mention the programmers to replace your software if necessary. Terminating the rights of patent-users is a feel-good measure only.
Don't get me wrong - I do agree with you on most points, but it does ask the qeustion - "If this was so simple and straight-forward, why didn't someone else patent it?" I sure wish I had.
Both fortunately and unfortunately, we live in a more-or-less capitalist society. I am definitely a caplitalist, although I see the socialist side of this, in a capitalist kind of way. While I do oppose the idea of "patenting ideas" (maybe I should patent that), I do see the benefit of patents, even in software (like a poster below says, protect the implementation, not the idea.) I think it's fair to patent the One-Click, even though it doesn't benefit the community. But it's OK to benefit the first person with enough balls to patent something that the rest of us think is stupid.
I suppose I'm playing devil's advocate more than anything, but if I came up with an interesting new idea (and put the work into implementing it), I don't want someone to come in, undercut me (you can't argue with free), and make off with my idea as their own.
On the other hand, I benefit from free software (and other ideas / products) every day, and I'm grateful for that. I think it's great to innovate, and release for the common good (the microchip, case in point). The point of patents is not to stifle innovation, but to prevent unfair competition. Do you think that a single person, or group of people undercutting a product that was innovated by another person is fair? I don't. We all had our chance to do it first.
In the end, I still have mixed feelings about patents. They require a level of objectivity that's hard to find in a beaurocratic position. On one hand, they're necessary to protect yourself, and on the other hand, the details can cause true innovation to suffer.
--
http://acostas.org
Clarification: They can make it illegal to use in certain countries where that patent is valid. Now you know one reason that some companies are pushing so hard for software patents in the EU. Without it, development and use continue in Europe and the rest of the world (and with users in the US who are willing to violate the patent).
Comment removed based on user account deletion
Rosen is over estimating the importance of Sourceforge as prior art. Most new algorithms are developed by CS researchers such as profs, grad students, and researchers in industry. The fundamental problem with software patents is the chilling effect they are having on the movement of new ideas from researchers to ordinary programmers.
Imagine I'm writing some program that uses sorting and I run across a paper by Dr. Smith explaining a new algorithm that is 10% faster than quicksort. If I use Smith's algorithm my program will be faster but how do I know if it is patented or not? I could ask Dr. Smith and he might answer that it is not, but perhaps he based his algorithm on work by Dr. Jones which was patented with Smith's knowledge. Or maybe Dr. Wong from IBM independently discovered and patented this algorithm a year earlier without Smith knowing it. I have no way of knowing this and so the safest thing to do is not to use it, resulting in inferior software.
Many fundamental algorithms used in CS today were developed years ago in the 60s, 70s and 80s. These were not generally covered by patents. There is a long lag time before ordinary software is using some of the more sophisticated techniques developed by researchers. We have yet to feel the full effects of the patent boom which started in the 90s. Give it another 10 years.
The fact is that I don't feel safe using any algorithm developed in the last 15 years without knowing with certainty if it is patented or not.
You're absolutely correct, however maintaining the pace of technological progress will simply involve all innovative development work being done in other countries. It's already happening: it began with our stupid encryption laws forcing development in that area to be done overseas. Now the Feds seem to have decided that since technology has advanced as far as it needs to here in the U.S., there's really no point in mollycoddling our technical people anymore. They may not think of it that way, but that is the net result of their actions. Our government doesn't seem to grasp the simple, inescapable fact that other nations have some pretty smart people too. Really damn smart in some cases. Limiting our own progress by hamstringing our best and brightest with software patents and extended copyright can have only one outcome: the complete and total loss of America's remaining technological competitiveness. What little is left after thirty-odd years of corporate malfeasance and general short-sightedness, so maybe it's not so great a loss after all.
... Congress isn't smart enough to have come up with such a detestable concept as "software patent" all on its own. No, some very influential individuals in the private sector pulled this off, with pretty much zero input from those who benefited most from the system the way it used to be. And the Congressional restructuring of the Patent Office's fee system and funding has resulted in such a flood of truly bad patents that I find it hard to believe that that is entirely accidental either. The very idea of requiring inventors to pay maintenance fees on their patents, or lose all rights to their inventions is just anathema to me. Such has the American Republic become.
But this is just symptomatic of undue corporate influence at the highest levels of government
The higher the technology, the sharper that two-edged sword.
Sun, being a UNIX house, is near the front of the line, but they won't be the last to lose with Linux. The best asset SUN has is its people. They need to leverage that into new solutions that are more than the common stuff we have today.
This is what Open Source is all about. We know how to build most of the software people need to use today. Why keep paying for that, when we could be advancing the art of computer science, or helping people make the most of exists now. Good OSS people can build complex, powerful solutions right off the net. They are worth paying for. Software companies can build new things that are worth paying for as well.
The fortunes of the big software houses were built on the general ignorance the rest of us had. Problem is they stopped innovating and began simply selling and locking in to keep their position. This benefits nobody really, including them, because the backlash from their overselling will tarnish their customer relations to a point where it might almost be better to let new companies, with a clue, step in and show how it should be done.
Linux and OSS will eventually force a new model. Open operating systems, standards, and applications will provide most of what people need. The software worth paying for will be new software that is tough to write, it will be new software that actually delivers its value in terms of its raw capability. Services will continue to be big as people understand they can pay for solutions that fit them, and perhaps only them, instead of boxed software stamped and sold by the billions. This is where IBM has it right, and also where SUN has some learning to do yet.
I will pay for software that is new, or that is difficult to write and maintain because those that do the work deserve it. Sadly, this does not fit most of what SUN and Microsoft and their partners package and sell today.
SUN still has a lot of very bright people capable of great things --they just need to buckle down now, while they have some position and cash in the market and really take things to the next level. They should do this on Linux and let the OSS community do the rest.
SGI, BTW is beginning to see some real success doing exactly this. Almost cost them the company because they were late to the party and had a very vulnerable position to begin with. SUN is in far better shape, they should have a good chance at keeping things that way, if they work at it...
Blogging because I can...
Nice idea. Explain it to Congress.