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Why Consider Linux Kernel Patent Risks?

Posted by CmdrTaco on from the something-to-think-about dept.

chromatic writes "After the hoopla about OSRM's study of patent risks in the Linux kernel, I talked to Dan Ravicher, the patent attorney and free software afficionado who conducted the study. Contrary to my initial reaction, I've come to believe that the study is actually very valuable. Linux and Patent Risks on the O'Reilly Network explains why."

9 of 226 comments (clear)

  1. Linus and patents by blogtim · · Score: 5, Informative
    Linux founder and leader Linus Torvalds has taken that approach. "Finding patent infringement has always been a responsibility of the patent holders," he said in a 2003 interview. "It is a fact that I do not encourage engineers to look up patent information
    Actually, I read an article in Wired maybe a year ago quoting Torvalds as saying that he personally avoids looking at patents because willful violation leads to triple damages. Better just to close your eyes and do whatever...
    --
    Visit Tim's Journal, yes?
    1. Re:Linus and patents by Bruce+Perens · · Score: 4, Informative
      Imagine if my lawyer does some research and finds out that my technology potentially violates several patents. And then I tell him, don't tell me, I want to be protected.

      This would be covered under attorney-client privilege. Neither you nor your attorney can be made to testify about what your attorney told you. However, what I tell you as a consultant rather than an attorney is not similarly protected. I have indeed told some customers that they should not see my findings because my findings were not favorable for a court case they were considering. What they didn't see, they would not have to testify about. They agreed, thanked me for being so careful regarding their interest, and happily paid me for a report I never delivered!

      In this case, if you know you are infringing, the amount of damages you may have to pay goes up by more than three times. That's how the law works. It sure isn't OSRM's fault.

      Bruce

      --
      Bruce Perens.
  2. Re:Linus. by MarsDefenseMinister · · Score: 4, Informative

    Linus owns the trademark to the kernel, but not the copyright, except for the portions he wrote himself. As far as I know, Linux does not require copyright assignment as a condition for code inclusion.

    Copyright != Patent != Trademark.

    --
    No weapon in the arsenals of the world is so formidable as the will and moral courage of free men.-Ronald Reagan
  3. Re:Software Patents vs. Free Speech by OwnedByTwoCats · · Score: 4, Informative

    It seems to me that an individual with ordinary skill in the art of developing software, coming up with a patented solution to a problem, poses as much a problem for the owner of a patent as it does for the individual developer.

    One of the requirements for granting a patent is that it describe an invention or process that is nonobvious to one skilled in the art...

  4. Re:Would it be illegal? by ron_ivi · · Score: 4, Informative
    " First you would have to have the source code. I suppose it could be de-compiled? I don't know how that works. Are there laws against that?"

    Even proprietary vendors make their source code available to important customers "to conduct security reviews of the products" - why shouldn't they do the same for Intellectual Property Rights?

    Furthermore, you could have third-party auditing companies provide that service in the same way they audit other confidential information such as company finances.

  5. Re:implied patent license by killmenow · · Score: 4, Informative

    Also, thanks to Groklaw, I learned about this thing called Promissory Estoppel that would pretty much stop them from bringing a patent suit at this point.

  6. Re:So.... by spacefrog · · Score: 4, Informative
    • If somebody decides to sue Linux for copyright infringement, who defends it?
    IBM, Apparently.
  7. Re:implied patent license by Bruce+Perens · · Score: 4, Informative
    To a great extent IBM has avoided distributing GPL software directly. We think this is because they don't like the patent terms of the GPL.

    Bruce

    --
    Bruce Perens.
  8. Re:patents free for private use ? by Meowing · · Score: 4, Informative
    Yes, private use and research often qualify for royalty-free use of a patent, but beware that these exemptions are very narrow. More information here.

    Also, the international treaties covering patents are still evolving (there's a bunch of 'em -- not just WIPO but PLT, PCT, TRIPS and more I'm sure I'm forgetting), so it's still necessary to check out the local laws.