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."

Comments

What a shame....

[DrStrangeLug]

That most of the code was written in Europe BEFORE we had software patents.

Re:What a shame....

[Anonymous Coward]

dare i say the words "prior art"
hopefully this will lead to the courts regarding software patents with the same contempt that I do.
An idea doesn't belong to a person, nor does it belong to a company... ideas belong to us all; it's society that inspires an idea, it should be scoiety that reaps the benifits!

Re:What a shame....

[Halo1]

That's irrelevant, unfortunately. The software patents are already here (30,000+ of them), they're just not yet enforceable. If the software patent directive comes through like the Commission/Council wants it, it will suddenly become quite easy to enforce them in courts.

Re:What a shame....

[kcbrown]

Prior art doesn't mean shit in the U.S. anymore, even in the courts, and especially to the patent office (who see fit to issue new patents even against things which have been patented in the past!).

And this won't change, either, since it benefits large corporations at the expense of smaller entities, and large corporations are the only entities the U.S. government responds to anymore.

Re:What a shame....

[write_with_numbers]

I just want one judge to understand that most of these cases are the equivalent of one musician suing another over using the word 'love' in a song. I think the world would be a better place if software patents focused on the overall purpose and function that the code adds up to, as opposed to certain individual lines of code that add up to basic functions like a double click.

This is all in addition to the point that the good
Dr. made before me that any lawyer is going to have a fun time trying to prove that Linus didn't write it first.

The patent office will one day be a forgotten entity, just like the Bee-Gees.

Re:What a shame....

[DunbarTheInept]

If you cannot respect other people's life, liberty, and property:

Then you're a corporation.

Re:What a shame....

[Rasta Prefect]

Curious. How does society inspire an idea? Do a group of people suddenly gasp with the collective creation of a new idea? Or is it a single individual who comes up with a new idea, and then shares it?

Most major ideas are basically bound to happen once a certain point of technological and intellectual advancement are reached. We celebrate the people who invented this or that, but the reality is in most cases of "major" inventions, there are actually several people who can lay claim to the invention and we just remember the one who happened to market it or get the patent. Radio,
Telephones, these are major inventions, but many people arrived at the same point more or less simultaneously.

In the distant past, things tended to get invented by one person at a time because few were educated and had the advantage of our species collective knowledge. Now with printing presses and near instant communication we've all got that benefit. Quite a lot of things get invented in several places at once.

Now, I'm not opposed to patents for real inventions. However, I think our patent system has gotten ridiculous. Business method patents are a mistake, as are in my opinion patents on software methods which should fall under the category of mathematical algorithms which are not patentable. In other words, lets start inforcing the provision about not patenting things that are obvious to people in the field and start requiring that you actually _invent_ something worth mentioning to get it patented.


I worked my ass off earning $8/hour, in a manufacturing job (wood products), in middle of f*cking August with no a/c to pay for my application. I did not get any 'help' from 'Society'; in fact, I was impeded by you idiots. "For the children" and "For the good of the people" bullsh*t. Get off your fat ass, quit complaining about your life, and actually do something.

As for this little rant: If you to sell your idea with government protection, you have to pay for the application. If you've really invented something unique, good for you. Go reap the fruits of your effort. On the other hand, if you've come up with the stunningly original idea of say, having a "buy it now at this price" button on an online auction, your sweating in a factory doesn't really justify my having to pay you to do that.

Re:What a shame....

[Ohreally_factor]

This is because 'Society' deemed in necessary to transfer operational money from the USPTO to Social Security.

Huh? I'm not following you on this. When did Social Security raid the USPTO budget?

Re:What a shame....

[sjames]

How does society inspire an idea?

You're confusing Society and Government.

While in the U.S. theoretically government represents society, many are of the opinion that bit does a fairly shoddy job of it.

As for how society inspires ideas, consider how you came up with yours. Would you have had your idea had you lived in a pre-agriculture society? Could your idea have even worked then? Did/do you need tools (that is, other people's inventions) to produce it?

Invention generally comes from the novel use of knowledge and ideas generally held by society. The level of that novelty varies considerably. That's why there are so many examples of parallel invention. While our history books tend to present a very cut and dried version of invention in the industrial revolution to the present, even the most cursory research will show that the question of who invented what is much hazier than that.

Under the current patent system one inventor 'wins' and the rest are effectively denied the fruits of their labor.

Consider, two inventors who have never heard of each other. Each spends a few years reducing the same general idea to practice. Since they both had access to the same body of knowledge and (of course) were constrained by the same natural laws, their inventions are significantly similar. Each believes that their invention is unique since they haven't heard from anyone else working on it.

According to patent law, one and only one of them is the 'original inventor' and the other is assUmed to have copied the invention. It may have taken 5 years to reduce the idea to practice, but whoever gets their application in first (even if the difference is minutes or hours) is the 'inventor' and the other is the 'copy cat'. No provision exists to issue a joint patent.

That is a fundamental flaw in the system. Even if the USPTO's implementation of patents perfectly matched the law, that flaw would exist.

To make matters worse, there is no decent system to search patents for similarity. That would require a search system that actually UNDERSTANDS the concepts behind the patent text and the query. So, the person who has a thought and says to himself 'I'll bet a zillion people have thought of that, but nobody did anything about it' and happens to be in a position to go into production does just that. A month later he is sued for patent infringement. The law pretends that he could have found the one patent out of millions that applied and avoided the infringement.

Unless or until we have a sufficiently sophisticated AI, that will remain as an intrinsic flaw in the implementation of patents.

Unfortunatly, there are many other flaws in the implementation that ARE correctable, but I see no signs of effort to correct them. The best example is the way that vague or frankly bizarre descriptions of ideas are being accepted. They are so vague and bizarre that a person of average skill in the art would have no idea that the patent even applied to their field. This is clearly a failure of the USPTO to perform it's legally mandated duty. The USPTO also seems to be in the habit of ignoring prior art. When it's actually possible to get a patent on using a laser pointer to tease a cat, it's time to rethink the system.

So, good luck on your patent. I hope for your sake that nobody renders the (literal) sweat of your brow meaningless by applying 5 minutes before you do.

Microsoft's patent strategy

[glinden]

There is some question about whether Microsoft has an explicit strategy of using patents as a weapon against open source.

Re:Microsoft's patent strategy

[smackjer]

Why limit it to open source? Their patents are a weapon against COMPETITION.

Re:Microsoft's patent strategy

[LuxFX]

...whether Microsoft has an explicit strategy of using patents as a weapon against open source.

And the US is worried about other countries having weapons of mass destruction. What about weapons like this, that harm the whole of society, and even Progress itself?

must...stop...rant....

Re:Microsoft's patent strategy

[OverlordQ]

Because Weapons of Mass Destruction kill people and patents dont?

Re:Microsoft's patent strategy

[Bruce Perens]

Take a good look at the pharmecutical industry and the cost of drugs in the third world, and you will be convinced that patents do kill people. Doctors Without Borders has a good case on this, search them on the web.

Bruce

Re:Microsoft's patent strategy

[Bruce Perens]

I think we need to move more drug development into the academic model and support it publicly. It's getting our dollars anyway.

Bruce

Re:Microsoft's patent strategy

[cpeterso]

If drugs are vastly overpriced and drug companies truly spend more on marketing than R&D, then why doesn't some group of concerned scientists start their own (private) non-profit drug company?

Re:Microsoft's patent strategy

[zogger]

and the big pharmcos will ignore any promising drugs that can't be patented (see the book "green medicine"), and will actually lobby against drugs and techniques that are cheap. All they want is the control and the profits, peoples health is tertiary (or lower) to them in their rankings of what is important. They will actually go so far as to de-legitimize useful products like nutrional supplements-vitamins and whatnot, and try to get legislation to make them "prescription only". They have tried that scam several times now.

The keyword is "potentially"

[NiceGuyUK]

Until someone jumps up and down in court with their army of lawyers, we'll keep it at "potentially"....

Re:The keyword is "potentially"

[Maestro4k]

• Until someone jumps up and down in court with their army of lawyers, we'll keep it at "potentially"....

Shhh, SCO might hear you and get ideas...

Re:The keyword is "potentially"

[robochan]

Seem to me that this is no more than just some "terra-fying marketing" campagin, no different than Symantec's Vincent Steckler saying "If 90 percent [of software] was open source there would be just as many attacks, only worse. Imagine smart hackers with [access to] source code". OSRM, like Symantec, is trying to use scare tactics to try and CREATE A DEMAND WHERE THERE IS NO MARKET for their products and services - only a "potential" market.

Shooting self in foot?

[philbowman]

Surely if your business is in insuring against something, it's not in your interest to do the research to show exactly how that thing can be brought about, even if in the first instance it improves your sales?

Kind of like an auto insurer producing a report on which car locks are least secure, and how to pick them.

Re:Shooting self in foot?

[Maestro4k]

• Surely if your business is in insuring against something, it's not in your interest to do the research to show exactly how that thing can be brought about, even if in the first instance it improves your sales?

Except in this case they're planning to expand insurance coverage to cover patent claims too. This is sort of a "hey, if you're using Linux without our insurance you may get your asses sued off, better sign up now!" Of course it's largely FUD (since none of this has stood up in court) and the insurance company may never have to fight a single suit. They might end up fighting a lot as well, that's the nature of insurance.

So as odd as it may seem this is a pretty standard way to promote buying their insurance.

Re:Shooting self in foot?

[jamesoutlaw]

I am not so sure that this would be considered "shooting yourself in the foot". It's actually in the best interest of the Insurance company as well as the Client to know the potential risks involved with purchasing a policy. It helps the Insurance company set rates as well as gives them the ability to guess at whether or not they will have to ever pay out a claim. It also gives the client the ability to determine whether or not they think the cost for the insurance policy is worth the benefits.

To follow along with your car insurance analogy... for the same driver an insurance company will have different rates for a brand new sports car than they would for an older station wagon because of the perceived risks involved.

Re:Shooting self in foot?

[Anonymous Coward]

They are NOT releasing the list of patents. They just state there are 283 patent infrigements.

It's up to you to decide to believe this or not, knowing they sell insurance against Linux-related intellectual-property litigation, or do your own search.

Re:Shooting self in foot?

[jpetts]

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.

Re:Shooting self in foot?

[Moirke]

The situation that it could come back to "shoot them in the foot" is when they attempt to defend their customer against a patent infringement suit. The plaintiff's will point to their own in house documents that admin Linux is violating patents. Of course there is no risk if the insurance company knows it is BS!

Re:Shooting self in foot?

[Alsee]

does it mean [] you can get off a lawsuit by simply saying you didn't know?

No, you just avoid the TRIPLE damages for willful infringment. If you innocently violate a patent you only get hit with single damages.

-

Re:Shooting self in foot?

[Bruce Perens]

The most interesting part of OSRM is that they will maintain a standing legal defense force to protect Linux and GNU. Essentially, they pool the risk of deep-pockets defendants to support that force. Simply by existing and having customers, OSRM tells software patent holders that we will defend Open Source software from software patents asserted against it. The effect is to reduce nuisance suits.

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

Re:Shooting self in foot?

[Bruce Perens]

I am on the board of this thing and would not allow them to goad patent holders into suing. Indeed, the entire thing is calculated to prevent people from suing, because a big insurance company with a $100M fund will defend against suits instead of a little customer.

Bruce

Re:Shooting self in foot?

[Hatta]

If you accidentially code something that violates a patent, that should automatically invalidate the patent as being obvious. And marshmallows should grow on trees too.

Broken knees

[dacarr]

It *almost* sounds like an act prior to offering "broken knees" insurance.

Almost.

Re:Broken knees

[SQL Error]

Nice operating system you have here. Wouldn't want anything to happen to it...

Re:Broken knees

[JPelorat]

You've got a lot of RAM, there, Colonel. Be a shame if someone was to set fire to it.

What kind of patents can a kernel have?

[byolinux]

Seriously - can anyone think of the kind of thing that anyone could have patented? Disk I/O? Threading?

Re:What kind of patents can a kernel have?

[tepples]

I can see potential patent violations in at least the following things a kernel does:

• Memory management methods
• Filesystem methods
• Interrupt handling methods
• Modulation methods in winmodem drivers

Re:What kind of patents can a kernel have?

[Profane MuthaFucka]

No, and don't go looking for anything either. If we know about infringement and do nothing, we can be punished. If we don't look, don't care, and don't know, all we have to do is change the code when someone else points out a problem.

It's not our responsibility to enforce the property rights of other people.

Re:What kind of patents can a kernel have?

[Quickfry]

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.

http://www.osriskmanagement.com/press_release_0802 04.pdf

Re:What kind of patents can a kernel have?

[cynic10508]

Seriously - can anyone think of the kind of thing that anyone could have patented? Disk I/O? Threading?

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. I'm wondering how many of these "patents" were filed after Linux was released with the incorporated code? Granted, the USPTO is back-logged and can't do prior art searches.

Re:What kind of patents can a kernel have?

[Scarblac]

If there's copyright infringing code that you're using, you're liable, period.

We're talking about patents.

Re:What kind of patents can a kernel have?

[Short Circuit]

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.

Re:What kind of patents can a kernel have?

[elleomea]

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.

Re:What kind of patents can a kernel have?

[Short Circuit]

At what point does it become overly burdensome to comb through the last 20 years of patents filed?

I think that at some point a court will rule that e.g. an individual coder is not liable, if the patent search is beyond his practical means.

Re:What kind of patents can a kernel have?

[bssea]

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

Re:What kind of patents can a kernel have?

[rwebb]

Ignorance is not a defense in any kind of law. If there's copyright infringing code that you're using, you're liable, period.

Bzzt... Copyright, maybe (although white-room development may be a defense). Patents, no.

It is possible for me to know whether I'm doing line-for-line copying (or derivative work, or ...) but it's not possible for me to examine and judge every claim for every software patent.

Re:What kind of patents can a kernel have?

[Hognoxious]

Ignorance is not a defense in any kind of law.

Ignorance of the law is not. Ignorance of the facts, however, may be (at least in the UK).

Re:What kind of patents can a kernel have?

[zenyu]

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.

Re:What kind of patents can a kernel have?

[njdj]

That is only for international patents.

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.").

This insurance doesn't make any sense.

[vi (editor)]

Well if these are big issues then OSRM will go bankrupt at the first patent attack of doom. And all your money paid to them will be useless.
On the other hand if the patent claims are bogus then your investment will be useless, too, as there is nothing to defend.
The money would be better invested in a real legal insurance which covers being sued by teh mad discrimination laywers of NAL-p'ThUK-NZer-RaK etc.

Re:This insurance doesn't make any sense.

[Zocalo]

Actually, it does make some sense, although I don't think it's necessary just at the moment and hope that it never will be. I'm assuming that it will function in the same way as car/home insurance if you have cause to make a claim, and also that OSRM itself will be under-written to protect its clients against OSRM going bust.

So, when Foo Corp claims that by using Linux you are infringing their patents you simply remain noncommittal (just as you should never accept blame at a car accident) and call OSRM. If OSRM is as good as my car insurer that's pretty much the end of the matter as far as you are concerned. They deal with Foo Corp and their lawyers and resolve the issue as best they can, whether that be getting the case dismissed or negotiating and paying your license fees. You'll probably get a letter every now and then letting you know of any developments, requesting information they might need and so on, but that's all. For many CTOs paying a company like OSRM some money each year might just be worth the removal of one less thing to fret and loose sleep over.

Gee...

[Fnkmaster]

Starting to sound like Open Source Fear Mongering to me. I don't know of any product that doesn't "potentially infringe" on other patents. Certainly for every software product I've worked on, when we did a patent search, we turned up several patents we potentially might be infringing on. Of course, our solution was to file a few of our own defensively so if any of our competitors came after us, we'd be able to go back after them too.

The problem with Linux is that there is no one organization with sufficient stake to specifically pursue such a strategy. Though I'm sure if push came to shove, IBM would be willing to use its patent arsenal in defense of its Linux-using customers, given how much they've invested in Linux deployments and Linux-based services work. Anyway, of course it's in this insurance company's interest to point out every possibly infringing instance.

Re:Gee...

[GoofyBoy]

>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.

Re:Gee...

[Otter]

Starting to sound like Open Source Fear Mongering to me.

Uh, no kidding? It's interesting how the one time the OSRM guy doesn't get Bruce Perens and PJ Groklaw to be the company's public face, all the comments are suddenly about what a scam this is. Tomorrow there'll be an interview with Perens where he talks about what a noble, altruistic venture it is and the mob will instantly fall back in line again.

Re:Gee...

[Fnkmaster]

Because before they were singing the tune "we don't believe Linux infringes on copyrights, and we're so sure of it, we'll sell you insurance". Now they are singing the tune "Linux might infringe on up to 283 patents, don't you think you want insurance?".

That is the difference between noble altruism and fear-mongering. I understand the fear can be an effective sales tool, but that doesn't mean I can't call it like I see it. As for Bruce and PJ, they are well respected, so the company initially obtained the benefits of their reputation. If the company's management stops acting in a way that people respect, they will eventually lose that goodwill. I don't think this means everybody is a mindless Slashbot.

Re:Gee...

[VP]

Here is an article where Bruce Perens is quoted...

Re:Gee...

[Idarubicin]

Because before they were singing the tune "we don't believe Linux infringes on copyrights, and we're so sure of it, we'll sell you insurance". Now they are singing the tune "Linux might infringe on up to 283 patents, don't you think you want insurance?".

That is the difference between noble altruism and fear-mongering.

I thought it was the difference between copyrights and patents. The statements above are not mutually exclusive....

Re:Gee...

[Bruce Perens]

That's really cynical. I did speak to Dan Lyons, and didn't manage to change his opinion. Indeed, I don't always manage to change the opinion of folks here. Go back and read my comments to this story.

Bruce

skeptical

[Datasage]

Im a little skeptical when the news comes from selling protection against the same problem. Hey look, there is a problem here, but guess what I will sell you protection agasint it.

Interestingly enough, at least one person works for both orginizations, Daniel B. Ravicher.

What does everyone else thing? is it something to be concerned about or is it a ploy to sell insurance and drive up the cost of linux adoption?

Sounds fishy

[nurb432]

Since its the same company that is selling insurance saying there 'might' be a problem... Sounds like they are just trying to scare up some business for themselves..

Either that, or OSS is screwed, and the other shoe is about to drop. ( don't think it would stop with the Linux kernel, much more is vunerable if its taken that far.. )

Re:Sounds fishy

[jevin12283]

Those that are in power in this world hate anything that they cannot control. Especially if it was made by the uncertified masses and beats the crap out of the best commerial offering out there.

I'd say OSS does all of that hands down.

Re:Sounds fishy

[Anonymous Coward]

Either that, or OSS is screwed

correction

Either that, or OSS in America is screwed

Re:Yuck.

[mzkhadir]

Yes, they should get sued like Microsoft get sued for everything else that they do. Infringing on 200+ patents and thats not a joke.

Won't happen

[morcego]

If they are selling insurances againt it, then they won't believe it would be a problem. Otherwise, they would loose money. Simple as that.

Anyone believe that is they really thought this could happen, they would sell insurances against it ?

Re:Won't happen

[Anonymous Coward]

To be fair, companies sell auto insurance with certainty that there will be accidents. Life insurance is sold with a certain payoff -- the gamble then, of course is when, but a few will die early.

Insurance is about balancing risks...

Re:Won't happen

[ben_white]

If they are selling insurances againt it, then they won't believe it would be a problem. Otherwise, they would loose money. Simple as that.

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

I'd hate to see something happen to your nice OS..

[twd]

Sounds like a protection racket, to me.

419

[pyro101]

So this is the new 419 scam coming out of Nigeria. Seems inventive.

Re:Yuck.

[lukewarmfusion]

Of course it's a publicity stunt. Their whole business is dependent upon anti-Linux FUD. If PHBs believe this crap, as well as the junk they see in the press from SCO, they start thinking about who'll take the fall when they get sued for using Linux. Nevermind that it won't happen. If that particular PHB is the one that might get fired, he just might start trying to convince his own PHB that thy need Linux insurance.

It's like selling earthquake insurance to a farmer in Indiana.

at least 237 of which are probably ridiculous

[Anonymous Coward]

Considering the four patents that IBM pulled out against SCO (not that I feel sorry for them), I'm surprised the Linux kernel doesn't infringe more patents.

You have to remember that for just about every significant traditional programming task, there are several conflicting patents out there somewhere. None of which whould ever have been granted, and all of which pretty clearly cover the way everyone builds their software now.

The "insurance" might be a good thing.

[Anonymous Coward]

This whole thing might be a nice way for companies to pool together for a legal fight.

If someone does sue the OSRM insured companies, the insurance company's best interest is fighting the battle with its resources (insurance money) pooled together instead of each companies having to fight on their own.

It might not be that bad of thing.

Before you all go and get your panties in a bunch

[Asprin]

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.]

Patent violation is rampant

[192939495969798999]

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!

Not a prob in many other countries.

[TheLink]

So if things get really bad, maybe one should do the development elsewhere.

Which came first, OSS or the patent?

[Anonymous Coward]

Sure, Linux may have some features that are listed in several registered patents, but to me the question is: Who has prior art?

My guess is that very few companies will persue any litigation in this area because of the possibility that the OSS community came up with the concept first, thereby invalidating the patent they claim to be protecting.

Sad commentary on our society

[Shivantrill]

Does anyone else find this a troubling and sad trend in our society?

The purpose of patents is to encourage innovation by protecting the income for the developer/innovator to recoup the cost of innovating/developing, not to discourage innovation.
If Linux truly violates patents, why are they only bringing it up now that Linux is becoming a viable alternative for mainstream america?
Besides, the whole thing is suspect simply because it comes from a company selling insurance for patent suits.

Re: Sad commentary on our society

[tsg]

It's probably not possible to write a set of laws that isn't subject to abusive exploitation by people who want to leech off the system.

But it is possible to write the laws so they don't actively encourage leeching off the system.

This violates my Patent.

[Kenja]

This violates my patent on FUD.

283? That's it?

[Luveno]

Heck, I accidentally violated more than that in the last 2-tier app I wrote.

Kernel-land or User-land?

[bsd4me]

The article didn't mention it, but are the potential violations in kernel-land, or do they also entend into user-land and ``Linux'' is being used in the broad sense of the term?

I don't get it...

[lofi-rev]

Normally insurance companies offer a large population indemnification against certain things. The likelyhood of a large number of, say auto drivers, needed to cash in on their policy is low. But it seems that if you are insuring people who use the Linux kernel and there is a patent infringement in the kernel, then you could be faced with paying out to ever single one of your customers. Plus - couldn't it be a strategy for patent holders to go after those with insurance because they have a certain dedicated portion of money set aside specifically for that possibility?

Re:I don't get it...

[underpar]

They know that the majority of cases will be invalid and won't make it to court. The only thing they need is fear just like other insurance compaines need the fear of death/illness/fire/accident....

If they blow up a few figures to create that fear they may get more business.

Re:Before you all go and get your panties in a bun

[Anonymous Coward]

Yes, they are. They're running a protection racket, and what they're protecting is Linux. As has been pointed out:

(1) They know Linux doesn't violate any patents. If this were not the case, providing such insurance would be a terrible idea (hey, look at us! Come take our money!).

(2) Their attempt to get the public worked up about this is pure PR (Hey, there's a problem. And guess what? For a mere ($$$) we have the solution!).

(3) One person working at a company does not make that company "good" or "bad." This company's business plan is ethically bankrupt and nothing like "real" insurance (normal insurance covers random happenings, this insurance covers something predictable and researchable). As much as companies are not "good" or "evil" (they're just groups of humans), I wouldn't associate with this one.

A subtle version of the Scott McCollum gambit

[BitwizeGHC]

Namely, insinuate that Linux is somehow more "unsafe" because it is not controlled by a good old American-as-apple-pie capitalistic company whose sole reason for existing is profit motive. If it isn't made to make money, it isn't legitimate (and, if you're Scott McCollum, is probably an Al-Qaeda plot against the nation). Nevertheless, the idea is to engender an attitude of danger and trepidation toward the decision to move away from proprietary software.

This also underlies the whole "indemnification" dog-and-pony show. Why does only Linux need to be indemnified against copyright infringement? Why is there no one calling for people to indemnify Windows, even though Windows can potentially have more untraceable copyright-violating code? The answer: Windows is assumed to ipso facto contain no such code because it is made by Microsoft, a trusted company which is believed to only employ legitimate business practices also ipso facto.

I'm not sure who benefits here. I get the vibe that it's just an aura of "perceived safety by following the procedures".

Re:A subtle version of the Scott McCollum gambit

[Wateshay]

Well, since Bruce Perens and PJ of Groklaw are involved in this, I somehow doubt the point of the patent search/announcement was to set up a case that Linux is illegitimate because it's not backed by a company.

Just because we'd all like there to be no patent violations in Linux, the odds are that there are some, just as there are patent violations in almost every major piece of software, simply due to the fact that the patent system is completely screwed up when it comes to software. The reason people don't sell insurance to indemnify people against Windows patent suits is because patent violations found in Windows are going to result in a lawsuit against Microsoft, not a Windows end-user. Since there is no single company backing Linux, though, there is the potential that someone will sue a large end-user instead (also, I wouldn't be surprised if major Linux distributers like RedHat and Novell buy this insurance).

As a final note, I'd be very surprised if Microsoft doesn't have some sort of insurance against patent suits, too.

m$ patenting spree

[l3v1]

Seeing how m$ gets every and more both obvious and non-obvious patents granted, soon everyody and everywhere will infringe some m$ patents when writing more then 2 lines of code.

Re:m$ patenting spree

[0123456]

You obviously missed the new Microsoft patent: 'A method of writing a program such that it is written in two lines of code or less'.

yup.. .and here's a more critical analysis

[Anonymous Coward]

Forbes has a rather more critical article about this.

Re:yup.. .and here's a more critical analysis

[msuzio]

This article is a piece of crap. It even includes the obligatory quote from Robert Enderle (who has left Gartner now and runs his own spewtank of market-trend quips).

I mean, come on... here are a few choice quotes:

Some corporate customers have viewed Linux as risky to use because the program is written by thousands of volunteers from around the globe, and nobody knows where the code comes from.

Yeah, the code just sort of suddenly appears on Linus's hard drive. *rolls eyes* Good god, this is unforgivable at this point -- by now, everyone should understand this open-source thing, it's been high-profile for long enough that these sorts of total fuck-ups should be a thing of the past.

I suspect some sort of program is automatically writing this stuff. A neural net filled with old articles that they just feed some new pieces of FUD into and then it spits out a new article in the same vein.

I did like this, though

Linux creator Linus Torvalds says he isn't worried by suggestions that Linux may infringe on patents. "Hey, there 'may' be life on Mars. What does 'may' mean?" he says via e-mail, adding that if Linux really does infringe on a patent, he'll just rewrite the code to sidestep the problem.

Re:yup.. .and here's a more critical analysis

[Mastoid]

Thanks for that link. Thanks very much. This is the most interesting part about it:

OSRM's team includes "director of legal research" Pamela Jones, a paralegal who runs a SCO-bashing Web site called Groklaw

Hm...

Re:yup.. .and here's a more critical analysis

[Anonymous Coward]

"Yeah, the code just sort of suddenly appears on Linus's hard drive. *rolls eyes* Good god, this is unforgivable at this point -- by now, everyone should understand this open-source thing, it's been high-profile for long enough that these sorts of total fuck-ups should be a thing of the past."

We know who submitted the code (PGP signed or such), we know who committed the code (audit trail), but we still are not possitive where the code came from, we assume the submitter wrote it and did not break patent laws, copyright laws or non compete NDA's. You take it literally and miss the forest for the trees.

Many Linux supporters like to pretend that if they just get rid of the code, all will be forgotten and forgiven. If you rewrite the code you still have initial damages to pay for and you have to get that code out of commission (or at least make a best effort to do so). Depending on the circumstances (eg. copyright infringement) other parties may have contributed to the infringement. How many parties (especially the mirrors of opensource repositories) could be hit? How would that affect the open-source world? Now multiply this by many different jurisdictions and this is a nightmare senario at best unless the whole shebang can somehow be disproved. Just rewriting the code or making jokes about code creating itself fails to really think and prepare for the possibility.

Re:yup.. .and here's a more critical analysis

[EzInKy]

17 USC 506
"(a)Criminal Infringement-- Any person who infringes a copyright willfully...for purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement."

Re:slashdot

[Bull999999]

I'm not sure but I have patents on tinfoil hats. For a mere payment of $699.00, you can wear as many tinfoil hats as you want without the worry of lawsuit.

I also sell alien abduction insurance to go along with the Linux insurance for a well arounded protection.

A thought...

[Short Circuit]

Since source code has been ruled as expressive speech, do software patents mean speech is patentable? Or will the stack collapse from that end?

Re:A thought...

[Bruce Perens]

I don't think you could really get from A to B in court. It would only be necessary to distinguish code as speech from its application in a device. No doubt an attorney could explain this better.

Bruce

Among those patents

[ackthpt]

May be embedded in devices other than plastic toys found in breakfast cereals and happymeals

May be built without bloat (a prohibitive patent owned by Microsoft)

Able to run for months, or years, without reboot (another prohibitive patent)

Uses letters of the alphabet

Uses arabic numbers

Multitasking

May be networked with multiple other computers

Enables a spoon to stick to admins nose during boot

WTO

[nurb432]

The wonderful WTO will bring our grief to your shores soon..

Re:That's nothing

[abb3w]

Well, there's certainly a lot of prior art...

Re:Before you all go and get your panties in a bun

[Clovert Agent]

And because PJ works for them, the entire company is comprised of saints?

For all I respect PJ and Groklaw, this does look like a pretty grimy attempt by OSRM to stir up business. Just the headline gives it away: "Results of First-Ever Linux Patent Review Announced, Patent Insurance Offered"

I mean yes, there may be patent issues with OSS. Yes, it's good that someone did the research. And yes, it is important that someone have answers ready for when the CIO raises the issue. But there are obvious vested-interest questions about OSRM's research.

I'd like to see it replicated outside OSRM. Or at least some disclosure, with right-of-reply to OSS developers. Spill the beans OSRM: what are those 283 patents?

Proverbs

[Hognoxious]

'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.

Never trust a barber who says you need a haircut.

Re:Before you all go and get your panties in a bun

[Xepo]

Dude...you're living in a dream world if you think linux doesn't violate any patents. How long have you been reading slashdot? There's been all sorts of articles about "Microsoft granted patent on double click" or that sorta thing. I'm quite confident that linux violates quite a few patents, though I've never done a search myself. I'm also quite confident that MS Windows violates quite a few patents (they're in some law suits now about it).

"They know Linux doesn't violate any patents. If this were not the case, providing such insurance would be a terrible idea "
Do you think car insurance companies provide insurance knowing that people don't get into accidents? No, the idea is that the majority of people who are paying for the insurance will not need it, but having that insurance will help them secure support within the company for migrating to linux. Both companies benefit from linux insurance. This is especially true considering that, if I get sued over patents for using a commercial product, such as windows or oracle or something, you can bet that the creator of those products would step forward and help me defend myself. With linux there is no one to do that, unless you're subscribing to a particular distribution that might or might not have the money for it. This is why larger companies don't need insurance for running commercial software, but it's quite helpful when running open source software.

I welcome the option of getting insurance for running open source software, as the major effect it'll have is to encourage big business to switch.

This is a solution, not a problem.

[Ignignot]

Starting to sound like Open Source Fear Mongering to me.

You have to look at it from an insurance company's perspective. They provide insurance for things that go wrong. Sometimes the product is something commonly asked for (hey, can you insure my boat that runs on nitroglycerine?). Sometimes insurance companies come up with a product on their own and market it (hey, we'll sell you meteor impact insurance). In either case before they can tell if the product is viable is to set a good price for it. To set a good price for it, they have to study the market - find out what risks there are. Once they decide what chance the bad outcomes have, and how much they would cost, they can come up with a price for the insurance. After that they add a little onto the top for their own pockets and some fudge factor. Finally they can come around and say, "look, we see you have this problem with patent suits and we can insure it for 38 dollars a month" or whatever. So just because they come to the table with this does not automatically mean that it is a bad idea - in fact I think it can be used to cheaply get out of the bind of software lawsuits by big companies against little guy developers. They probably think the same thing, along with other markets as well. Sure you need to shell out some money. Sure, if everyone got together and just paid for lawsuit costs together it would be slightly cheaper. But since other people giving you money out of the goodness of their heart isn't a sure way to foot legal bills, a small premium isn't so bad. This article is a solution not a problem.

Argh! Insurance!

[suso]

My wife and I are currently trying to move our web hosting and Linux support business into an office, and getting cheap insurance is proving to be a pain in the rump. Mainly because most insurance companies won't cover Internet Services companies and the ones that do charge as much as 7 times more than they charge other businesses. Yet they don't cover anything that would be a threat to those businesses.

Now this. What is a person to do who wants to offer state of the art services and technologies? I'm sure I'm preaching the choir here, but patents are hindering cutting edge technology rather than helping it these days.

OSRM: Friend or Foe?

[Saeed al-Sahaf]

What is a shame is that an organization that is purportedly pro-OSS (they are the owners of Groklaw.net) is pushing the idea that there is an unacceptable level of liability in using Linux, for the purpose of selling their insurance product (which is of negligible value due to the extremely small coverage amounts). It's FUD, and surprisingly it's coming from "our side". PHB THINK: If a large enterprise is considering Windows vs. Linux, but wait! Linux requires user insurance because of its questionable pedigree, and Windows does not, the choice is obvious. Lot's of people have suggested that SCO and the various M$ toadies are trying to deep-six Linux. I think ORSM is doing quite well at this also.

One interesting approach in America

[ShatteredDream]

If the code was written before software patents were officially acceptable, then Linux coders could argue that extending patent protection now to companies like Microsoft would be in violation of the Constitution's anti-ex post facto clause.

Re:One interesting approach in America

[jc42]

Probably true, but remember that Microsoft's strategy isn't based on winning lawsuits. Their behavior is based on the understanding that they can drag the case out for a decade or more, so the legal fees will bankrupt you long before you win.

Re:One interesting approach in America

[orangesquid]

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.

Re:One interesting approach in America

[Minna Kirai]

but then were re-applied copyright retroactively when the terms of copyright law were extended

Those things are illegal not because of ex-post-facto, but because it violates the 5th Amendment: private property was taken without compensation.

Copyrights which had been scheduled (since their inception) to be turned over to the public were seized by the government, and then handed over to the copyright registrants. This is flagrantly illegal, and if Lawrence Lessig were a better litigator, he could've proved so in the Eldered case.

Re:One interesting approach in America

[DunbarTheInept]

"Loser pays" needs to have a reasonable cap or it just ends up making the "my lawyer is more expensive than your lawyer" argument even more effective than it already is. If you think you have a good case, and only a 20% chance of losing, are you willing to take that risk if that 20% chance will result in losing a few thousand dollars? Probably - but what if it's a 20% chance that you'll have to pay for a team of Microsoft's Lawyers salaries for a year? Not so ignorable a risk anymore...

The "loser pays" plan is usually implemented in countries where Lawyers don't command nearly as large a salary as they do here.

And on Kerry vs Ashcroft: Compare apples to apples - potential presidents to potential presidents, or potential cabinet members to potential cabinet members.

If you have problems with Ashcroft's civil liberties record, don't vote for his group just because Kerry is even worse - go third party.

Re:One interesting approach in America

[iamplasma]

Here in Australia we have a loser pays system, and it works fine. Only reasonable costs may be reclaimed, so it's not like Microsoft could say "we hired 500 lawyers for your minor case, so you owe us $20 million". While I don't know the exact figures, lawyers aren't exactly cheap here either, so I don't think the cost of lawyers in the US would be so much more that it would break the system.

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.

everybody does it -- just more visible in OSS

[jdkane]

There are plenty of copyright infringements in proprietary code ... you just can't see them if you don't have the source.

Patents are another story. Given right now the patent system seems to suck (even though it's supposed to serve a valid purpose) -- is patent infringement truly patent infringement in many cases? I would argue a lot of the patent cases will be thrown out because of prior art, no merit, etc. I'm not advocating patent infringement, but just saying that a lot of the existing problems are most likely not really problems at all. Only some will be huge problems.

Not a problem.

[Jaywalk]

Big companies trade patent rights like baseball cards, and IBM has more baseball cards than anyone. There are only 200 "potentially infringing" copyrights that are not owned by Linux allies and any copyright holder can make the problem go away by granting Linux royalty free use of the patent. If the allies release their patents, those remaining have two choices:

• Try to enforce the patent. Doing this risks having the patent invalidated, losing one of their trading cards. And the best they could hope for is to collect a little money until a workaround is found.
• Follow suit and release the patent for uses in Linux. Sure you won't make money off this, but you could still trade the patent with other companies for use of their patents.

The one fly in the ointment is any company (*cough*Microsoft*cough) that has a vested interest in seeing Linux fail. They might be willing to sacrifice some of their patent portfolio in order to make that happen. It also makes them number one on the patent examination hit parade.

Re:Not a problem.

[rewt66]

Yeah, I kind of see open source as a bunch of people that you do not want to get into a patent fight with. They care passionately, they have way too many people that remember lots of things that could be prior art, and they know how to network with each other. (See Groklaw for an example.) In a serious patent fight against open source, the patent holder would stand to see patents (or individual claims of patents) ruled invalid due to prior art, and the software swiftly re-written to not infringe on the rest. Best to attack open source only with patents that you don't care about losing.

Not to say that it wouldn't be a pain in the Tux...

Inaccuracies in press release

[julesh]

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.

Re:Inaccuracies in press release

[Tim C]

True - but that doesn't stop a Linux distributor from taking infringement action against users of GPLed software that they do not distribute.

Say, for example, if IBM had a patent that MPlayer was infringing on, they could sue to their heart's content as long as they do not themselves distribute MPlayer. The fact that they distribute other GPLed software has no bearing on that.

Also, even if they were distributing a GPLed program that was then the subject of an infringement suit, surely they'd go after the authors, not the end users?

Insurance for Linux ?

[ganhawk]

I thought BSD required it more ...you know in case it dies or something

Daniel Lyons is a wild-eyed nutjob

[mefus]

Forbes has a rather more critical article about this.

that Forbe$ article is by the very same rabid anti-Linux pro-Micro$oft zealot Daniel Lyons, who obviously is too confused about the issues to know what he really wants and resorts to badmouthing anything about Linux even when he contradicts himself.

This is the same guy that was badmouthing IBM last year for not indemnifying users for Linux. Hello Daniel, IBM doesn't indemnify its Windows users either! But I think it does indemnify AIX users, because it actually develops that OS. Ya dink.

And now (when lots of companies have weighed in with indemnification for Linux and you are silent) and this is extended to patent insanity... you freak again. What's wrong now, ya nutjob?

It's how insurance works, dammit!

[Agar]

I'm tired of all these "+5 Insightful" comments about how this is a protection racket.*

Look, insurance is not some crapshoot. It's highly dependent on using statistical analysis to mitigate risks. Stats require data. Insurance companies are ALWAYS trying to get more data to understand the risks they need to hedge against.

Why does the insurance industry fund Underwriter's Laboratory (you know how everything under the sun is "UL Approved"?)? So they understand (and, by engaging in the process, can minimize) the risks associated with using electrical appliances (electrocution, fires, loss or damage). They then price insurance accordingly.

Ideally, an insurance company will contract (or fund) a third-party company to do the analysis. The insurer gets the stats and determines their rates, while the 3rd party works to minimize the risks. The UL label program has dramatically reduced house fires, for example.

This is exactly what's going on here -- OSRM engaged PubPat, a group dedicated to FIGHTING bad patents, to do the analysis. They get their data, while PubPat can work to get those patents invalidated.

There's another benefit here to the Linux community: companies should feel more free to adopt Linux now that the risk is known and there's a way to minimize it (i.e., insurance). Which is more likely to keep you in the house, knowing that if you go outside you can be violently murdered, or that there's a less than 1% chance of being murdered that can be made to almost zero if you avoid certain behaviors?

Put another way: Companies don't mind taking risks (it's what they do), provided that they're identified and can be hedged. Unknown risks that can take down a company, however, are untenable.

Everyone knew that patent suits were a huge risk to Linux, but it was an amorphous big deal that was unquantified. Now it's known. I'm surprised that people who so violently disagree with "security through obscurity" are against the public release of risk information around patents. Understand the problem, make it public, then address it quickly. It's the same situation, just a legal one and not a programming one.

As an aside, this is not to say insurance companies can't be evil -- dropping people after genetic testing shows a proclivity for a disease is just wrong, IMHO. But, economics dictates that if everyone knew exactly what chance they had of contracting diseases, there would be "genetic protection insurance", since no one knows /who/ would get what, when (it's like life insurance -- everyone will die, but no one knows how much money will be paid into insurance before that date. But, statistically you can get a good idea and charge people accordingly. That's where actuarial tables and increasing rates come in. But I digress).

In short, what you're seeing is a responsible insurance company going about their business.

* Full disclosure -- I only read the comments on this article at +5 before writing, so sorry if this is redundant.

Burying our heads in the sand...

[moojin]

I see a lot of posts saying that these 280+ patents are invalid or ridiculous. Are we burying our heads in the sand? It only takes one well placed patent lawsuit to disrupt Linux development. Look at the SCO case, they used the scatter shot method and it has distracted Linux development and adoption. Not severely, but enough for the FUD machines to have companies and persons re-evaluate their Linux adoption. The enemies of Linux and Open Source will use patenets against us. Have we all forgotten what happened to the companies that stood in Microsoft's way? Once they do find a weakness, they won't hesitate to exploit it.

What can we do to counter act software patents? Can we create some sort of "prior art" / "idea" database online that holds instances of prior art or ideas for software programs that the community could build up and use as a weapon in defense of the open source software development? If we create a resource for prior art then it may be easier for the USPTO to deny some software patent applications...

Just my two cents...

GrokLine is a prior art database of Unix history

[davidwr]

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.

coding anyting violates patents

[dh003i]

It is almost certain that for any random 10 lines of code you pick -- in any software program -- there is going to be some sort of patent-violation, because there's so many patents in software, the vast majority of them for ridiculous things.

How many patent violations are there in proprietary code, violations that no-one can see, due to the closed nature of the code?

Patent law subverts the very purpose for patents

[dmeranda]

No, the "purpose" of patents was to encourge the disclosure of knowledge. The "means" by which it does this is to grant a limited monopoly to those who publically disclose information.

Never do patents protect or grant the right for someone to make money, nor do they even grant the right to use/manufacture the idea that was patented. Patents only restrict anybody else from making money or otherwise using the idea.

This is why the "don't look, don't know" advice is so indicative of a really messed up system. In order to minimize your legal liability, you have to not look at patents...which means the primary purpose of patents (the disclosure and distribution of knowledge) is directly subverted by the very law establishing them.

Re:Really? There's no grandfather clause?

[Halo1]

There is no "the EU". The Council and the Commission are (or were at least, since we just got a new Commission and we don't know how they think about it yet) proponents of the effect you describe, but they explain it completely differently.

According to them, those patents should already be enforceable today, but the law is not interpreted the same everywhere. So they want to harmonise it and make sure that software patents are enforceable everywhere in Europe, except pretty much only in the UK as it is until now (they never mention this last part obviously).

Of course, our (FFII's) position is that until now, those patents are generally not enforceable, in the UK they interpret the European Patent Convention in a completely ass-backwards way (just like the Commission/Council) and when you force all of Europe to accept the UK's case law then this is not just some formal "harmonisation".

Yes, Linux infringes. Like other software.

[0x0d0a]

Linux almost *certainly* infringes on software patents. This is true of almost any large software product these days, including Windows. It is no longer possible to legally write a significant piece of software without infringing on software patents. I'm sure every major piece of Internet-using software I have infringes on some patents.

This is not a sign of "Linux is broken", this is a sign of "software patents are broken and it's fucking insane that the US allows them".

I'd love to see IBM lobby against them, but IBM, like all large tech companies, has their own healthy patent portfolio to keep competitors from entering their markets.

Very depressing. Every day that we continue to allow software patents is another day worth of patents that must be grandfathered in if any fix occurs -- the US legislature will never, *ever*, *ever*, even if they eliminate software patents, not grandfather in old ones. Lots of comopanies put a ton of money into getting them, and they won't yank assets from under their feet.

If we stopped allowing software patents today, we'd still have a two-decade-long software patent minefield to deal with. If you're fifteen today, you'll be thirty-five before the industry is free of software patents. If you're twenty-five today, you'll be middle-aged when the industry is patent-free again, and if you're forty-five today, you'll be retired when the industry is patent-free. Assuming software patents stopped today, which isn't going to happen.

Cart's before the horse

[dfenstrate]

Take a good look at the pharmecutical industry and the cost of drugs in the third world, and you will be convinced that patents do kill people. Doctors Without Borders has a good case on this, search them on the web.

The drugs protected by patents wouldn't even exist to save anyone if the pharmaceutical companies didn't think they could profit from developing them.

Do you think that brilliant research doctors and investors decide to develop drugs because they'll get a warm, fuzzy feeling in their hearts?

Do you think that a geneticist is going to work his tail off to develop some vaccine to save some people in sub-saharan africa, who can't pay for it, or work for a profitible company that will reward him so he can live comfortably and maybe even send his kids to college?

I certainly appluad companies that decide to play nice and sell drugs cheap to third world countries. I hold no ill will against those who do not. Either way, nothing would get developed without the profit motive, and no one, rich or poor, would benefit from the non-existent drugs.

And if you're going to bring up 'public funding', at least show me an instance where a government lab in the same field as dozens of private companies has managed to hold even a candle to private enterprise. I'm not saying such an example doesn't exist, but they will be few and far between.

Re:Cart's before the horse

[LMCBoy]

The drugs protected by patents wouldn't even exist to save anyone if the pharmaceutical companies didn't think they could profit from developing them.

Perhaps. But should we not question the fact that the pharmaceutical industry is the most profitable industry in existence? Profit motive, okay. But at some point, they are fleecing people and unethically manufacturing a false scarcity of something that could save people's lives. Besides, buried in the industry's inflated cost estimates is their hugely aggresive advertising campaigns. Personally, I think it should be illegal to market prescription drugs, and the "payola" that goes on between pharmaceuticals and doctors is totally unethical, IMHO.

And I am going to bring up public funding. The companies' research is heavily assisted by university researchers who use NIH grants. NIH research consistently plays a critical role in developing important drugs, which are then given over to pharmaceutical companies to "bring to market". This is one of the worst exampes of corporate welfare.

Re:Cart's before the horse

[Anonymous Coward]

These same arguments come everytime...

"The drugs protected by patents wouldn't even exist to save anyone if the pharmaceutical companies didn't think they could profit from developing them."

Funny, this doesn't prevent someone from making and selling a jacket, even though they can't own the idea or concept of a jacket. If there is a market, it would have been made, it just wouldn't be as lucrative.

"Do you think that brilliant research doctors and investors decide to develop drugs because they'll get a warm, fuzzy feeling in their hearts?"

Here you get close to a straw man by lumping investors and scientists together. Many scientists are in their field because they are interested or enjoy their work. Even now they don't get paid much, it is the investors that reap most of the rewards. Given that most research is done at universities under government research grants I think the research would continue. Although there would be more incentive to develop cures rather then lifelong treatment plans.

And the more life threatening diseases would be looked at first, rather then cosmetic type research (weight reduction, etc).

"Do you think that a geneticist is going to work his tail off to develop some vaccine to save some people in sub-saharan africa, who can't pay for it,"

Yes. I'm all for discouraging workers that are only in it for the money. That way we may see more ethics in research.

"or work for a profitible company that will reward him so he can live comfortably and maybe even send his kids to college?"

Why must this be mutually exclusive?

"Either way, nothing would get developed without the profit motive."

Funny how it hasn't worked that way historically. And don't bring up Edison, most of "his" inventions have proven other inventors.

"And if you're going to bring up 'public funding', at least show me an instance where a government lab in the same field as dozens of private companies has managed to hold even a candle to private enterprise."

Bull. Much of the "private enterprise" funding is conducted using government grants, they are then allowed to patent this work. The number of publically funded discoveries are too numerous, and besides you are arguing from the weaker position. How about you provide an example of solely privately funded research that didn't amount to a lifetime treatment plan.

Re:Cart's before the horse

[luisdom]

I certainly appluad companies that decide to play nice and sell drugs cheap to third world countries. I hold no ill will against those who do not.
So, you approve murder... Because being able to sell drugs cheap in the 3rd world and not doing it is murder, you know?

Either way, nothing would get developed without the profit motive, and no one, rich or poor, would benefit from the non-existent drugs.
Yeah, well, drugs are for the rich, fuck the rest of the world (you hold no ill will against those who do not, remember?).

The production costs of drugs are just zero, compared to the costs of investigation and testing, and knowing that no one can afford the "normal" fare in the 3rd world, why not sell it at a lower fare? Because that will impress some people, but not shareholders, which this is all about, not healing people, right?

Do you think that a geneticist is going to work his tail off to develop some vaccine to save some people in sub-saharan africa, who can't pay for it, or work for a profitible company that will reward him so he can live comfortably and maybe even send his kids to college?
Beleive it or not, this paragraph is the most disappointing thing I've read in slashdot. Yes, I do think that. Yes, there are. And yes, there are people who would even die (and they do) to save some people in sub-saharan africa. But now I know your society is not able to understand that.

Re:Cart's before the horse

[shadow169]

So, you approve murder... Because being able to sell drugs cheap in the 3rd world and not doing it is murder, you know?

Following that logic, then it is also murder for the developed countries to not build advanced hospitals in every African village that needs one. There are people dying in those villages, hospitals could save their lives, is it murder to not build them?

Re:Argh! Insurance!

[BCW2]

No insurance company in history has ever hired a claims adjustor to take care of the policy holders. They are hired to deny everything they can possibly get away with and give the board members and shareholders big checks.

Once you understand this, everything about insurance becomes clear.

They won't point a single line of code

[famazza]

Of course they won't point a single line of code. They'll wait more then a year and try to show something. And, of course, it will be so insane that it nobody will care.

The point here is that OSRM can't just point out every line of code that has copyright issues because they will have to pay if companies get sued. They need to show that it has copyright issues so they can capt clients, but can't show too much or the issues.

Re:Before you all go and get your panties in a bun

[Reteo Varala]

I saw one article where she was quoted several times, and made it apparent she agreed with this "evil" organization.

Besides, when you see a risk, you take precautions against it happening. That is known as risk management and it is well-known as a cost of doing business.

I don't want to hear any BS about Linux not infringing on any patents; there's so many ridiculous patents out there (see the icon of this story for an appropriate analog) that it would be good to have a buffer against another SCO coming along with a patent suit, specifically to give strategic partners (read: Microsoft) a weapon against Linux.

For many companies, it's worth the money for the ability to say to some submariner "Here's the information for my insurer. Take your case to them."

Re:What tasks require high-speed interconnects?

[Bruce Perens]

No, I am not just being among extortionists. We have a seriously broken patent system, and there is no doubt whatsoever that anything as big as the kernel would have 300 or so patents that might apply to it. OSRM is a band-aid. In the two press tours I have done for them so far, my main point has been that the system needs fixing. Please also see my CNET editorial about them in which I explained that most people don't need the insurance.

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

Windows, AIX, Solaris and other infringe as well..

[borgheron]

They just haven't done the research yet. Patents are often used in a defensive manner in the industry.

GJC

Double edged sword

[newhoggy]

Open source insurance can help enterprises reduce their exposure to the risks of using open source software thereby encouraging the adoption of open source software.

One the other hand insurance companies have the conflict of interest in that exaggerating the risks of open source software has a positive effect on their bottom line thereby discouraging the adoption of open source software.

Same nonsense

[MarkusQ]

This line of "reasoning" has gotten repeated so many times, people are starting to accept it as true without questioning it. So let's stop a moment to question it here.

The drugs protected by patents wouldn't even exist to save anyone if the pharmaceutical companies didn't think they could profit from developing them.

Yeah. And no one whould write an operating system from scratch if they weren't assured of making a fortune. Or, for that matter, a novel.

And, by the same logic, nobody ever makes food or thinks up new foods because you can't patent or copyright them.

Do you think that brilliant research doctors and investors decide to develop drugs because they'll get a warm, fuzzy feeling in their hearts?

No, the brilliant ones do it because they are obsessed. It's the dedicated ones that do it because they care.

Oh, and (in my experience) the ones that only do it for the money are the hacks that we'd be better of without. Pretty much the same as in any field.

Do you think that a geneticist is going to work his tail off to develop some vaccine to save some people in sub-saharan africa, who can't pay for it, or work for a profitible company that will reward him so he can live comfortably and maybe even send his kids to college?

Well, given the fact that they always seem to talk about the choice (again, in my experience) in terms like "selling out" vs. "doing what I love" the fact that many of them "sell out" doesn't mean they like it.

There are actually many logical steps here, all highly questionable if you stop to think about them:

1. Nothing ever gets created without the creator being reasonably assured of a profit
2. The more talented and creative people are, the more they are obsessed with money
3. You can't make a profit at all unless you can crush anyone who tries to compete with you
4. R&D is the reason companies need to make so much money, even though they spend far more on marketing, lobying, etc.
5. The pharmaceutical companies profits are causing all the progress; and, by implication, general advances in science and technology have nothing to do with it (oh why didn't they think to give patents and promises of obscene profits to the alchemists! Think what they could have accomplished!)

   ...you get the idea

-- MarkusQ

Re:Same nonsense

[Rich0]

I'd be the first to agree that there is a need for reform, and possibly the need to set up competitive government labs to research the sort of stuff that commercial pharma won't find profitable.

However, don't delude yourself with the idea of open source drugs. If it were possible we'd already be seeing it (it isn't like the government had to re-regulate the operating system market to open the door for linux development).

Most developers can afford a $600 PC running linux and GCC, and can contribute to linux in their spare time. Most people can afford OpenOffice and work on books. Most people cannot afford a collection of $50,000 HPLCs, GCs, DNA-analysis equipment, etc. Note that all of this EXPENSIVE equipment is essential for medical research, and you're not going to make anything comparable with stuff from the local hardware store.

Oh, and beta testing. No problem for linux - just roll out .rc3 and people will try it out and tell you if it works. How would you like to beta-test my latest cure for cancer? It is a little immature, but if people take it and tell us which organs disentegrate it will help us a great deal on tracking down the bugs!

And, of course, regulations are designed to keep small fry out of the drug approval process. A typical drug application in the USA/EU fills a small truck with paper.

Government-funded R&D has some potential to surmount these obstacles, and should be considered. Forget young do-it-for-principle lab workers in their kitchens, however.

Personally, I'd be happy to see less money going into drug advertising, and dividends, and more going back into R&D. I'm not sure that getting rid of patents are going to lead to this, however. Trust me - nobody invests half a billion dollars into a single product with a marginal cost of about 25 cents without a patent. Unless we want to commit to a fully-government-funded pharma R&D environment (including development), we can't just get rid of the patents. Maybe there is another route that would be more effective in getting money back into R&D, however.

Make sure your questions make sense...

[dfenstrate]

You seem to be missing the scope of the matter.

...no one whould write an operating system from scratch if they weren't assured of making a fortune. Or, for that matter, a novel.

And, by the same logic, nobody ever makes food or thinks up new foods because you can't patent or copyright them.

Those are all things, that given enough time, one person can do. Accomplishing any of those, in fact, could probably be done by someone as a hobby over the course of a year.

The notion does not apply at all to the tremendous amount of resources required to develop medicine.

As to the motivations of various researchers, and how you don't want hacks who are in it just for the money- no matter how noble your intentions are, you still need the resources of a large corporation to carry out medicine development- and while you're choosing between a few companies or even a university or government lab, wouldn't it be nice to do your life's work while getting paid hansomely and working with state of the art equipment?

Just because someone does it for the love of helping people or for the pleasure of tinkering with the genes and chemicals doesn't mean they won't respond to the incentives put in front of them.

Now, back to the resources required to develop medicine:

1. Basic research- identify a health problem, isolate the mechanism of the illness.
2. Initial development- develop some sort of therapy for the problem- some conconction of chemicals, or a gene spliced aomeba, or whatever.

3. Animal trials- I had a roommate who's father ran a company that supplied lab mice and other similar creatures. Did you know that for a specific drug development project, this company custom made mice with the defect that was meant to be treated? They sold them for $100,000 a piece to the company working on the project, and couldn't raise them fast enough.

Now are you getting the idea this is a little beyond staying up late coding for a new operating system?

4. So the animal trials were more or less successful, but you have to work on some side effects, some delivery mechanisms, that sort of thing.

5. Multiple phases of human trials. This is where you track down willing human test subjects and see if the drug works on them with no or acceptable side effects. Finding and compensating test subjects, using control groups, paying even more researchers to run it all- large process here.

6. Now that you've already spent at least $100 million, you submit it for FDA approval. And if it doesn't meet some capriciously high standard of safety, the drug company can't sell it at all. Never mind individuals deciding what they want to risk to solve a particular health problem, because the FDA has removed that choice.

Chances are that each drug that makes it to market has to support a number of drugs that you never even heard about, so that drives the cost up several fold right there.

Are you still with me here? Making medicine in the modern world isn't amature hour. Making an OS just because you feel like it, or a novel, can be.

Now as to your logical steps- wich are insulting and show you have nothing more than a superficial, anti-business understanding of the nature of things...

1. The more resource intensive an endevour is, the more likely it will need the resources of a large company, which is by definition interested in profit.
2. The more talented and creative people still respond to incentives given to them and the ability to do their work with the best equipment and resources available. Which are usually found at a profit seeking company.
3. I have no idea where you came up with this. Reading too many Slashdot MS stories lately?
4. It takes what it takes to run their business. I don't say that the system is perfect, no one has proposed a realistic alternative here.
5. Do you think general advances in science and technology come out of nowhere?!?!?! They come out of pharmecut