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Tim Bray Finds An Affinity Between Patents And OSS
Manuzhai writes "Tim Bray, of XML co-invention fame, is writing about software patents and Open Source software today. While he deprecates the 'business-method' patents like one-click ordering, he thinks some (Open) source code could tell the truth about a patent application: 'In fact, in an ideal world, I'd rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one.'"
No. The point is anyone can look at it, anyone can use it, if they want to make money off it, they have to pay up.
Given that there is concrete evidence for what the patent is about (the source code), it becomes much harder for companies to claim that patents have been violated. It also becomes harder for patents to be put forward for such simple stuff as "one-click purchasing", patents would then have to be awarded on innovative algorithms.
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Where did Microsoft promise this?
All I can remember them saying is that they will use their patents as a source of revenue (which can be construed as not going after open source projects per se as there is little money there)
A patent was supposed to grant you a monopoly on your invention in return for describing said invention such that when the King decided your monopoly expires then other members of the kingdom could share the knowledge.
Thus when source code is the documentation one could argue that presenting such code is *already* a pre-requisite.
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A recent discussion on Groklaw included the idea of mandating that royalties on use of patented software must be based on a percentage of the sales price. Any percentage of zero is a reasonable amount to pay for including patented algorithms in free software. I couldn't care less what impact this might have on proprietary software makers; let them all sue each other into oblivion if that's what they do best.
I read the article. It's basically incoherent, or rather, it doesn't give enough details to even properly evaluate the idea. One thing's for sure. It does not answer any of the major, show-stopping problems with software patents.
If you have a patent office staffed with geniuses, gifted with eidetic memories, even if every patent holder submits open-source code along with the patent, you will still have a body of hundreds of thousands or millions of patents, and hundreds or thousands more each day.
A software developer will have to read the entire patent database, and then stay current with all the new applications. Obviously this is physically impossible. The end result? Every piece of code is a ticking patent timebomb.
"Hello, sir. I see you are violating my patent on dereferencing pointers on Tuesdays. I assure you this was extremely innovative in 1992. My fee is $1,000 per asterisk, of I will see you in court. By the way, a little hint about court: it will scare off your customers, cost you millions in attorneys fees even if you win (and you might lose!), and take ten years. Your choice."
Software patents are purely an anticompetitive tool designed and maintained exclusively for a few large corporations who just happen to have created large, shockingly broad software patent portfolios. It allows them to sue any small competitor out of existence, and threaten even larger competitors. They have already been seriously destructive to our economy, and their effect on innovation, and eventually America's place in the global technology industry, is an ongoing catastrophe.
There is no possible compromise. The system is inherently, obviously broken - a ridiculous legal con game. Software patents must be repealed, or our technology industry will wither and die (and happily be replaced by Europe - or, if Europe isn't smart enough to steer clear of them, in Asia).
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Or did I mis something here?
Aside from the second 's' in "miss", yes.
Patents are supposed to give sufficient detail to allow someone "skilled in the art" to reproduce the invention. Almost all "software patents" miserably fail at this task.
Requiring that working source code be provided would avoid the current situation where patenters obtain legal patent protection while still retaining effective secrecy.
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Since we're still close enough to the transitory period, the patent might last 17 years from issuance or 20 years from filing. (the latter is the newer term)
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I suspect that the idea really is somewhere about like that, until the patent expires. Then the published code would enter the public domain and anyone can use it for whatever, open or closed. Either way open source is a bit of a misnomer since nobody is free to use it in the first case, nor is there licensing to ensure that derivative works remain free after the patent expires (though the original code would remain public domain).
If I have been able to see further than others, it is because I bought a pair of binoculars.
"Sounds more like a "shared source" (look, don't touch) than "open source" to me"
Yes, but after the patent period expires, the source would be public domain. I.e. during the period of the patent use of the source is restricted (and would be even if the source was not in the patent). Afterwards, use of that source would be unrestricted.
Also, if you obtain a patent license, there is nothing keeping you from modifying the code during the patent period. It's not Free, but it is open. However, I think that Mr. Bray was using open source only to mean visible source, not modifiable source. One would not be able to use the code in F/OSS projects.