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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."
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.
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...
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.
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
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.
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.