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Linux Violates 283 Patents, says Insurance Company
Apro+im writes "According to this article over at ZDNet:
'Linux potentially infringes 283 patents, including 27 held by Microsoft but none that have been validated by court judgments, according to a group that sells insurance to protect those using or selling Linux against intellectual-property litigation.'
Dan Ravicher, founder and executive director of the Public Patent Foundation, conducted the analysis for Open Source Risk Management. OSRM is like an insurance company, selling legal protection against Linux copyright-infringement claims. It plans to expand the program to patent protections."
I can see potential patent violations in at least the following things a kernel does:
It looks they are patents that haven't been litigated yet. I RTFA, I read the report. I have yet to see which patents they're referring to. Seems like a bunch of crap to me.
2 04.pdf
http://www.osriskmanagement.com/press_release_080
Check this out.
OSRM is the company PJ (you know, of Groklaw) joined a few months back to provide indemnification for Linux users. This organization isn't the enemy, folks.
[I thought that name (OSRM) sounded familiar.]
"Lawyers are for sucks."
- Doug McKenzie
And how many patents does Windows (or DID windows) violate of Apple? (Before Microsoft either changed it, or bought the patent, etc) This happens all the time!
stuff |
>Starting to sound like Open Source Fear Mongering to me.
The article is fairly well balanced.
>I don't know of any product that doesn't "potentially infringe" on other patents.
The article mentions that.
"That number isn't unusually high for a package comparable to Linux, he added. Microsoft, for example, faces several patent suits, he said."
>Certainly for every software product I've worked on, when we did a patent search,
Its not a case of Linux people not doing a patent search or not caring, its that they are better off not doing one.
From the article:
>"If you have knowledge and are found to infringe, a court can punish you," tripling financial penalties, Ravicher said. "If you say you didn't know and didn't see it, a court can't punish you. It's a screwed-up rule."
One way is to be proactive, as your companies were. Another is to remain ignorant, but still take responsible action if informed of an infringment. Sounds legally ok either way.
The surprise isn't how often we make bad choices; the surprise is how seldom they defeat us.
No, they expect lawsuits to happen, they have calculated their premium rates to expect to collect more than they will spend defending or paying in settlements. All insurance works this way. They also have limits ($5 million) to avoid being bankrupted by an unanticipated award.
Ben
cheers, ben
Never miss a good chance to shut up -- Will Rogers
IIRC, it turned out that the reverse memory mapping system the kernel uses is patented by someone. Don't remember any more detail than that, though.
tasks(723) drafts(105) languages(484) examples(29106)
Well, the law doesn't work like that.
Apparently, it does for patents:
"If you have knowledge and are found to infringe, a court can punish you," tripling financial penalties, Ravicher said. "If you say you didn't know and didn't see it, a court can't punish you. It's a screwed-up rule."
-- ZDNet article linked to in story.
This is incorrect. When it comes to US copyright and patent law, ignorance is a VALID defense. It's called the "innocent infringer" defense. If you have no knowlege of the patent/copyright then you are held to be less liable, or not at all (especially if you made a good faith effort to search and didn't find anything).
It is up to the plantiff to prove that you had knowledge of the copyright/patent and that you willfully avoided compliance. It is also up to the copyright/patent holder to enforce their OWN patent/copyright, period.
If you do not search, then your product might be stopped from shipping until the situation is fixed, but it is HIGHLY unlikely that you'll receive damages.
--sea
Remember that anything already presented to the public cannot be patented. You have to file before presentation. For example, if you present your concepts to a conference before filing a patent, you're screwed.
That is only for international patents. US Patents are valid if filed within one year of public disclosure. A US Patent is all you need in most cases, due to the size of the market. Also note that 50% of patents that make it to a court ruling are found to be invalid. A much larger percentage of patents would be held invalid if they were brought to trial. My guess is that 99.999% of software patents would be held invalid after a well funded defence. The risk is not that someone with a valid patent sues you, the risk is that someone deep pocketed sues you based on one of their many invalid patents. The cost of invalidating a patent is huge in both time and legal fees.
They are NOT releasing the list of patents. They just state there are 283 patent infrigements.
They will show you the patents if you insist, but they recommend strongly that you not look, since if you know about the patents you are infringing, then in the US the infringement becomes wilful, and renders you liable to triple damages.
This is one of the reasons that people such as Linus recommend that engineers should not do prior patent research before coding anything.
Call me old fashioned, but I like a dump to be as memorable as it is devastating - Bender
Ravicher found that about a third of the 283 issued patents are owned by large
corporations that are friendly to Linux - ones with some current financial interest in broad Linux
adoption, including: Cisco, HP, IBM, Intel, Novell, Oracle, Red Hat, Sony, and others However, to date,
no Linux vendor has [...] entered into an explicit agreement promising never to use its own patents against Linux users.
How about this one?
Each time you redistribute the Program [...]. You may not impose any further restrictions on the recipients' exercise of the rights granted herein.
I think threatening patent infringement action against any user of a Linux distribution that you had provided them with would be placing a further restriction on usage, hence a violation of this term that a Linux distributor must have agreed to in order to distribute Linux.
Ex Post Facto only applies to criminality.
See "The Happy Birthday Song" legal fiasco, as well as all the things that had entered the public domain by the late 1920s but then were re-applied copyright retroactively when the terms of copyright law were extended.
--TheOrangeSquid Is it any wonder things seem so awry? We swim in a sea of confusion and don't have to think to survive
Here is an article where Bruce Perens is quoted...
But the patent problem is really scary, not just for Free Software but for any small-to-medium sized software manufacturer. It should not be discounted.
Bruce
Bruce Perens.
Bruce
Bruce Perens.
GrokLine, brought to you by the folks at GrokLaw of SCO v. IBM fame, is PART of what you are looking for. They focus on Unix-related prior art. However, they probably don't cover things like device drivers.
Here's a blurb from their web site:
2004-05-23
Grokline's Launch
Welcome to the launch of Grokline. We are ready for you to start to help by contributing what you know about UNIX.
We hope with this living UNIX history project to be able to identify any conceivable legal problems that those wishing to block or hobble GNU/Linux may try to use in future assaults on the community. If there are litigation risks, even just from nuisance lawsuits, particularly with respect to patents, we want to find those risks, hopefully before they do, and mitigate or resolve them now. Also, if we can carefully document prior art, we may find it comes in very handy one of these days. I am personally convinced, as you no doubt are too, that the next wave of attacks on GNU/Linux and the GPL will involve patents.
I hope this helps.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Bruce
Bruce Perens.
There is no such thing as an "international patent".
There is a procedure called an "International Patent Application", governed by a treaty called the Patent Cooperation Treaty, but it's just a way of applying for a bunch of national patents at once. The national patent offices still apply their own rules, both to the application and to what they grant (Article 27 para 5 of the treaty says: "Nothing in this Treaty and the Regulations is intended to be construed as prescribing anything that would limit the freedom of each Contracting State to prescribe such substantive conditions of patentability as it desires.").
Regarding how much I expect to make, I have helped create several companies so far without making anything. Maybe someday Progeny will be worth something, I don't know. So, I am not expecting anything. Nor do I see that my rep is suffering among those who take the time to examine the issue. The main reason I am participating in this is so that there will be a force able to defend Linux while being independent of hardware vendors and distributions, with their proprietary agendas. I am also working hard to fix the system, but politics takes years or decades to change. What else do you suggest?
Thanks
Bruce
Bruce Perens.
Also, it's not a strict loser pays system, but rather there is a discretion for judges. While the default is that the loser pays "party/party costs" (normally ends up being about 80% of the loser's costs), it's entirely possible for a judge to order both parties pay their own costs, or that the winner pay the loser's costs in particularly extreme cases. In particularly blatant abuses of process, the judge can also order "indemnity costs", in which case the loser pays basically the full costs of the winner. Again, it works here, so I don't see why it wouldn't work for the US.