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Patent Concerns Unlikely To Nix Munich Linux Plan
MonkeyDev writes "Yahoo is reporting that Munich is ready to move forward with plans to 'abandon Microsoft Windows
in favor of upstart rival Linux. The council is expected to take a calculated risk and vote through the move, despite concerns about possible software patent infringements in the face of coming European Union legislation that caused months of delay.' Not everyone is excited about it. A software developer at MySQL claims 'Linux violates 283 U.S. software patents.' How does the Linux community respond to these claims?" (Florian Mueller, the MySQL developer mentioned, isn't opposed to Munich using Linux, though -- just the opposite.) Update: 09/29 02:22 GMT by T : Marten Mickos of MySQL AB writes with a correction: "Florian Müller is an independent software developer and entrepreneur. He is ALSO an advisor to MySQL AB but he does not work for the company. He is presently engaged in coordinating opposition against software
patents in EU, and thereby doing all of us within free software and open
source a great favour."
They changed the headline, so nobody will get your post... It used to be: "Munich Approves Linux Despite Patent Concerns." It is still listed on the front page as this, but the headline has been changed, without any mention in the summary. Soon they will probably add that to the summary, making my post obsolete...
warning: This post is likely to contain gobs of dripping sarcasm. Consume at your own risk.
The European parliament has twice rejected motions to allow software patents but the EU Council may still push a modified directive through.
At least they fought it off. Too bad our leaders were paid-off. At any rate, I do see MS ruling software since they own most patents and can crush anyone and we all get stale, buggy, insecure programs that won't run right since we don't have the encrypted product key.
I'd be hard to track down each person that put patented code into Linux.
I wish that developers would, instead of noting that such violations exist, correct them.
Well if it was simply a case of going "oh well, looks like I've found another one", hitting delete and having the patent disappear, then sure. Unfortunately, in the real world, it takes things like lengthy trials and large lawyers' bills to fight a patent.
I'm sure that a patent or copyright exists for "displaying multiple pages through the use of a clickable scroll bar" and undoubtedly, more than one OS has this functionality.
So what? You can't overturn a patent because more than one party infringes upon it. The number of people infringing on a patent is irrelevent.
Perhaps the issue will boil down to not whether or not parts of Linux violate copyrights but rather, whether or not said copyrights are even enforceable in the first place?
Please don't comment any further, you have nothing to add to the discussion if you don't even understand the difference between patents and copyrights.
Please read the source text carefully!
Florian Müller is NOT a MySQL developer. He is an independent software developer who ALSO is an advisor to MySQL.
And when Florian mentiones the patents, he is only quoting another source.
Florian Müller is engaged (successfully, I might add) in opposing the legalisation of software patents in EU. By doing this, he is doing all of us within the free software and open source world an enormous favour.
I am afraid that many of the postings on this topic are based on erroneous input data. Hope this helps to set things straight.
Marten Mickos, CEO, MySQL AB
Who said anything about stealing? Check out this patent. Every operating system on the planet does that. It's a required part of loading every executable file format since the early 50s. It's really really easy for someone to violate a patent without even trying. You write code, you make up all your own ideas, but because someone had that idea 5 years before you and hired a lawyer he's gunna sue you.
How we know is more important than what we know.
John, this is a misquote from the start. MySQL has not claimed ANYTHING, nor has any MySQL developer. See my posting elsewhere under this topic.
A person who is only an advisor to MySQL has simply repeated something that someone else has previously said about Linux and patents.
I am sorry for the confusion, but we did not create it.
Marten Mickos, MySQL
Slashdotters, this is a very important discussion (the one on software patents), but let's start with accurate facts.
The 283 thing is old news and was just repeated by Mr Florian Müller (who is NOT a MySQL developer). See here:
http://news.com.com/Group:+Linux+potentially+infr
I quote from that article:
- - -
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.
- - -
So it seems that an important discussion has got onto the wrong track due to incorrect input information.
But let us discuss software patents! MySQL's official position can be found here:
http://www.mysql.com/company/legal/patents.html
Marten Mickos, CEO, MySQL AB
'Linux violates 283 U.S. software patents.' How does the Linux community respond to these claims?"
Maybe it's not Linux which is what's wrong/broken. Fill in the rest.
in girum imus nocte et consumimur igni
IANAL.
If you ship software that has code in it that is covered by a patent what does that mean?
Patents cover the manufacture, sale, and use of an item.
Can the owner of the patent hit the author up for money?
Yes, the author manufactured and sold it without a license to the patent. This is what patents mainly protect. What will be more likely that the patent holder will get an injunction saying that the author can no longer sell his product, and then seek damages.
Can they hit the users of the code up for money?
Yes, the user used it without a license. See cases involving geneticaly modified seeds.
Can the author say "you, the user, are responsible for getting licenses for any patents that cover this code" and pass the buck?
Yes and no. If they the author doesn't have permision to grant further licenses for use of the patent, then the users must get one themselves from the patent holder. But the author needs a license to produce and sell the item in the first place too.
A working link:
3 389071
http://www.internetnews.com/ent-news/article.php/
For example: I patent a method of doing foo. You build an apparatus for doing foo, but you never really do foo, the customer at the end of the line practices the method. You do not infringe, the customer does. Similar scenario: I claim a system for doing foo. You sell "f" and "oo" but you do not sell "foo." Your customer buys each and assembles them into "foo." They infringe, you do not.
This is why a lot of patents have a method claim or two and an apparatus claim and maybe a "means for". The idea is to cover all possible infringers (though you never go after the customer because they are poor). That all being said, my case law is spotty, and IANAL, but that is how the initial analysis goes down. I actually think there is a case stating the opposite of of my combination example, i.e., if you make the parts and ship them into the US, you infringer, but I can't be sure.
-truth
I had a steady B+ in my AI class until I failed the Turing test...
Actually, the German government was one of the few who originally took a stance against the proposed EU patent legislation. However, after a couple of (key?) changes to the proposition, they agreed with it.
Switch back to Slashdot's D1 system.
I'm aware that he was quoting another source: OSRM to be exact. My point is that _any_ software project of any substantial size is certain to be infringing many patents. Linux differs in that someone actually went through and systematically identified all the likely candidates (I'm sure the missed some, of course.)
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
If I understand it correctly, this patent is much more specific than parent suggests. The abstract and initial claims make it sound like the standard general memory allocation system, but if you read further it turns out to be intended for parallelized FORTRAN scientific computing. The purpose is to ensure that all of the necessary data is actually in memory and prevent swapping.
Well, in fact many chemicals exist solely because someone created them artificially. There are many modern chemicals that do not occur in nature. For that sort of substance, the simple existence of the substance itself is often a great contribution to technological advancement.
There are four types of patentable subject matter under 35 U.S.C. section 101: processes, machines, manufactures, and compositions of matter.
The number 283 presumably refers to the 283 patents identified by Open Source Risk Management (OSRM) as potentially being infringed by Linux. Then again, I don't believe they have revealed which 283 patents they are talking about either.
i nges+283+patents/2100-7344_3-5291403.html
For more details, see http://news.com.com/Group:+Linux+potentially+infr
Yes, we had a shipping product and a rich entity took us to court over one of their patents. We had prior art but we were a small company and close to not making payroll. It was cheaper to pay them off and license our technology from them than it would have been to fight them all the way.
-truth
I had a steady B+ in my AI class until I failed the Turing test...
The fact is however that the abstract doesn't matter, and that each claim on its own is a separate monopoly. It doesn't matter much if you do not infringe on e.g. claims 10-14, because you still can be sued for infringing on claims 1-9 (and if you want to overturn the patent, you have to overturn each claim individually).
Donate free food here
The German Department of Justice seems to be in favor of software patents, but at same time it carefully avoids admitting so publically. From the Department's point of view, the latter makes sense, since almost all (all but a small number of very large) companies are strongly opposed to software patents here in Germany.
A day before the vote in the EU Counsil (May 17th, 2004), there was a protest in Berlin, and a speaker of Department of Justice told the protesters that Germany would abstain in the vote.
On May 18th, the following "compromise" was reached. The original text of article 2b
was changed to
(emphasis mine). That's right, the "couple of key changes" was to insert the words "new and"!
Of course, the law already states that a patent cannot be granted if there is prior art, so the effect of the change is exactly zero. How the change is supposed to prevent software patents is honestly beyond me, but nevertheless it caused Germany to vote in favor instead of abstaining.
Of course, if you use your software executed by a computer to steer an external device, then you may have to take into account the physical properties of this device. But that is completely independent from the fact that you use software. You'd have to take into account exactly the same things if you steered it mechanically or manually.
My point is that whether or not you use software should be completely irrelevant as far as patentability is concerned. If people think that great mathematical algorithms should be patentable because they can be used to find tumors in medical images, then why on earth only make them patentable when implemented in software? Where is the difference in investment or the beneficial effect to the economy that suddenly warrants the patent monopoly?
Either you think they should be patentable, or you don't, but the fact is that software automagically makes a lot of otherwise unpatentable stuff (such as business methods and mathematics) suddenly patentable.
When I write a technical manual about how to perform a chemical reaction, then if people follow that manual, this also has meaning and social/real world ramifications. That does not mean my manual is patentable, nor that the potential owner of a patent on the reaction can forbid me to publish and sell my book. The chemical reaction itself could be patentable, but that's completely separate from whether or not it's written down in a manual or described using software to steer a machine.Software is also merely a description of something, just like the technical manual. It does not make sense to allow patents on descriptions (although software patents do forbid certain forms of descriptions, which is probably one of the reasons software patents do not include source code: otherwise, a patent itself could infringe on other patents!). It also does not make sense to change the patentability of something depending on whether it's described in non-technical English or in C. There are no economical arguments for such a differentiation.
That's a false analogy. A computer program nothing but a description in another (mathematical) language. The translation investments are covered by copyright. What you describe, may or may not be patentable. Some things are on purpose not patentable, because such patents are considered to do more harm than good (there is no economical law that states that patents per definition have a positive overall effect).I think the only argument one could possibly make to justify software patents, would be in case they demonstrably would have lead to more innovation and a healthier economical situation in the software sector (or even in the economy as a whole, since software is not just used by software developers). They don't.
Donate free food here
Actually, business methods are patentable.
Historically (Before 1998,) business methods were not patentable for the following reasons:
However, this was questioned in State Street Bank & Trust v. Signature Financial Group Inc., 49 F. 3d 1369 (Fed Cir. 1998).
Signature was assigned a patent, "Data processing system for Hub and Spoke Financial Services Configuration," which described a computer system for asset management, where mutual funds ("Spokes") pooled their assets in an investment portfolio ("The Hub,") which was organized as a partnership to offer tax advantages and economies of scale.
State Street had been negotiating for use of the patent. When talks broke down, they brought legal action saying that the patent was invalid.
The lower court found for State Street, saying business methods are not patentable. The US Federal Court of Appeals overturned this decision, saying that considering business methods unpatentable was ill conceived and unsupported by the Patent Act. In other words, business methods should be treated as any other patent claim.
Because of this ruling, business methods are now patentable as long as they can be implemented in software. This has been one of the drivers on the rush for software patents.
Sources:
Disclaimer:
IANAL.