Slashdot Mirror
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.'"
sombebody's who doesn't agree proposes a constructive solution.
I like it provided there's no more 1-click-purchase involved.
Trolling using another account since 2005.
Sounds more like a "shared source" (look, don't touch) than "open source" to me.. Especialy the freedom part doesn't seem to be there as the open source implementation is needed to get a patent. So the contents is patented and unusable as open source.. Or did I mis something here?
Nobody expects the spanish inquisition!
The article argues that the patent system is not broken and that the only problem is the implementation. That's not a consistent argument because the way it's implemented is part of the system. Even his opening example, where an individual programmer comes up with an innovative algorithm and wants to patent it, contradicts the premise. The way the current patent system is written, the ante for playing the patent game (in terms of lawyers and fees) is too high for most individual players or small businesses. Before patenting software can even be considered, the patent system itself needs fixing. There is a good alternate proposal for this on Groklaw.
===== Murphy's Law is recursive. =====
No, because despite having the source, you may not just use it due to the patent (after all you wouldn't even be allowed to use it if you had written it yourself). Therefore for the duration of the patent, it eliminates the benefit of open source. Of course after the end of the patent period it will recover the OSS advantages - unless at that time it's obsolete anyway.
The Tao of math: The numbers you can count are not the real numbers.
I still think that software patents stifle innovation. The average useful program is made up of numerous components, not like an improved butter churn. Imagine if every little part of a program were patented: people would be way too caught up in liscensing fees to be able to write anything, especially a large application. If the patent system were to ever reasonably be applied to software, it will definitely need standards, something it sorely lacks now.
I do agree with him that anything software that is patented should be open source. At least this way, the company is forced to essentially put their idea in the public domain. Don't they make inventors of mechanical systems publish a blueprint?
I sure hope we get this figured out soon, because with multibillion dollar lawsuits flying around, I don't see how even giant corporations can feel safe doing business here in the US
In fact, this is more like the way patents work in real objects. Take a car engine for instance.
You can patent parts of the engine. Everyone can look at how you did it, and maybe create a better solution for it. The only thing patent protects the owner from, is using the same exact implementation in products that are sold for profit.
IMHO this is an excellent proposition
It doesn't have to be 'free open source', just open and source.
:) )
ie. The patent applicant not only has to write some code showing how his invention works in detail, but also has to show it to anyone who wants to see it. Those people who see it may not use it in their own applications (or they'd be violating the patent) so all the benefits of having a patent apply, but no-one would be able to patent anything that didn't have a concrete implementation (like 1-click for example).
I think that's the idea, but if you think about it - if you wrote code for 1-click, either you'd be restricting people from using the same techniques but they could implement 1-click in a different way, which I think does invalidate the idea of a patent after all.
Imagine I come up with a novel way of toasting bread, and I have to create my 'toaster'. If patents are to work, that'd have to stop other people from inventing the 'grill'. If that is true, then my way of implementing 1-click would stop other people from implementing 1-click in their own way.
The alternative, if my software only applies to my way of doing 1-click, then someone could legally invent the grill even though I have the toaster patent.
(I think I'll go lie down and wait for someone knowledgeable about patents to tell me what I mean
Novell aren't throwing their patent portfolio behind open source, they're throwing it behind themselves and their customers. Microsoft has promised nothing substantial afaik and even if they had you'd have to have been born 10 minutes ago to swallow it.
As for your last remark, well... Perhaps if slashdotters relied on providing spamming services to viagra and penis enlargement companies, as I do, they wouldn't be so critical of spam.
If you use the code, if you use their patented stuff, you had best negotiate a license or be sued out of existence. However, if you want to code around the patent, this could be very useful.
As much as this might disappoint the Perl hackers, there isn't always one way to do it. Sometimes there's only one good way of doing things (MP3 decoding comes to mind), and if the single-path bottleneck is patented then things might get difficult.
Why does free software have to be subjected to patents? It's not a commercial enterprise. If commercial entities stand to lose money from the competition of free software, surely that's their problem and not the free software coders'?
I think this could only work if the duration for which software patents were valid was shortened considerably (to, say, 3 years).
A patent is a promise by the state to enforce your exclusive rights on an invention in exchange for your publishing its details. Similarly, you are granted a copyright by the state on something in exchange for publishing it. In both cases it has to be "useful" to be protected - you cannot patent trivial ideas as you cannot copyright gibberish.
If you could just keep the inner workings of your invention secret, you would not need a patent to make money out of it, but then nobody else could learn from it and improve upon it. In that sense, open source and patenting are indeed the same idea .
Imagine the 'one-click' shopping patent - submitting an implementation hardly restricts the patent to a "specific algorithm".
And if you want to pin down patents to a "specific algorithm", how precise do you need to be? If you get too specific, patents effectively become almost identical to copyright. If you become too broad, you have... almost what we have now.
Imagine the code submitted along with a patent for a codec like MP3. Does your patent now cover just exactly that one way of encoding in MP3, or does it cover encoding in MP3 per-se? Or something in-between?
mentioning profits? Whether or not you are profiting from using a patented invention has nothing whatsoever to do with enforcement of said patent. Conditions of use stipulated by patent owners can be completely arbitrary, i.e. "you must release any software using this patent under an OSS license", "you must pay me $1 for every item sold", or "you must stand on one leg while using this patented algorithm". Of course, the latter is somewhat less enforcable, but still... whether or not the patent-using party profits is completely irrelevant.
HAND.
obfuscated source code contests> .
( It should be clear to us that, without very strong safeguards against it, that is what patent lawyers would tend to make out of writing source code for software patent applications, just like what they have made out of the descriptive text for normal patent applications. )
Perhaps if you didn't rely on a software patent as your primary source of income, you would be more critical of them.
Of course if your income depends on something, you'll be automatically biased. But the fact that you rely on it doesn't mean you should.
To make an extreme example: Say, in some country there was passed a law. This law states that you can get a killer license (which are sold in a limited amount by the state), and after aquiring that license, you are allowed to kill about everyone you like (with some exceptions for government members and similar). Some people bought those licenses and now legally make a living as professional killer. Of course there are people against this law, but the killers just say: "If your income depended on killing other people, you wouldn't be so critical about it." Now, would this killer convince you?
Note that I don't equate software patents with killing people (while pharmaceutic patents indeed can cause the death of people in some cases), but this is just to demonstrate that the fact that you rely on it as primary source of income doesn't tell anything about if it is right or wrong to have it.
The Tao of math: The numbers you can count are not the real numbers.
Here is a google cache of part of a license. The relevant bit is the grant-back clause.
Basically it works like the GPL. A licensee can use the licensor's patented invention provided that, among other things, he grants back to the licensor a right to use any relevant improvement patents the licensee invents.
Tweak it a bit, and there's your GPL for patents.
But it doesn't help much, since the scope of patent protection is amazingly broad, and most people willing to invest into getting patents aren't likely to then want to let everyone use them. So so long as any GPL-Patent developer could still stand a good chance of infringing a non GPL-Patent invention, the problem remains.
-- 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.
RMS must be rotating in his... uh... bed or so.
This is where "Open Source" meets "Free Software" and the two don't agree, not in the least.
Free Software is incompatible with patents, both from the license terms (the GPL even explicitly mentions patents) and the spirit (sharing of knowledge).
Open Source allows such abominations as "you can look, but if you copy we'll sue you from Alaska to Hell".
Isn't that essentially what DRM is trying to do?
The idea is nice at first glance, much like patents of old required a working mechanical model. It does fit well to the basic idea behind patents, which is essentially "tell us all how it works and we'll give you some rights for teaching us".
It doesn't fit with Free in any sense. Whether or not it fits with Open Source depends on your philosophy. Mine certainly isn't one of prison-but-with-walls-of-glass. I prefer not having to live in a prison at all.
Assorted stuff I do sometimes: Lemuria.org
The problem with the current patenting scheme as it applies to software is that it's a conceptual patent. Patents, however, were meant to protect applications of concepts.
Take, for instance, the fire service. My dad's a career fireman and sits on several technical committees that draft and approve the specifications for different types of equipment used in firefighting (specifically, breathing apparatus). Every time the specification changes (recently, to include a visual warning device in the face mask to display the percentage/amount of breathable air left in a tank), the vendors have to build new functionality into their gear. Each one has to design something that meets the standard, and each one patents their implementation of the standard, or licenses an already patented mechanism that meets the requirements. Point being, the vendors can't patent the CONCEPT of having a heads-up display, just their particular electro-mechanical implementation if it's something novel.
Software, on the other hand, has been allowed to patent a CONCEPT (such as one-click ordering) rather than a particular implementation simply because they claim that exposing their particulars with respect to implementation (source code) would give someone a competitive advantage against them.
Hogwash. In fact, it's easier to modify a physical device enough to get a new patent... it's harder to modify software to make it apparently distinct from the original patented source, esepcially if it's written in another language where someone is going to make comparisons not on a line-by-line basis but a method-by-method basis, and get into comparative analysis.
I agree that the system is broken and needs to be fixed... and I think the way to do that *is* in fact to require software patents to include their source code as well as a solid description of the methods used (perhaps an object model, as well?)...
"He assumes that the patent office, which can't even seem to read the patent applications, would be able to test the software and determine whether it was indeed a functional and useful implementaion"
Even if they fail at this, there are still two things that this does:
1. A defendant in an infringement suit can read the actual software and use it in the defense. If the code is non-functional, then it will be easier to invalidate the patent in court (since a valid implementation is required).
2. After the patent finishes, the code is available. Currently, a software patent offers no new information.
Patents are unbelievably expensive compared to copyright. There are two ways that they are expensive.
The second point makes the system entirely un-workable as there are so many patents that it is impossible for any one person to be sure that they aren't stepping on someone else's claimed invention. What makes the system just laughable is that now ideas are being patented (software and business processes) which are vague by nature. On top of this ridiculous situation is the notion of triple damages if you are almost aware of a patent that you later infringe upon (so you are horribly punished for trying to play by the rules and read through ambiguous patents). The system is horribly broken and stacked many times over against the little guy. I deeply wish that the case law that made software and business process patents legal is overturned quickly.
Godspeed EFF, you fight for all of us little guys and gals."I'm a loner Dottie, a rebel."
- Pee Wee Herman
- It provides a working example of the patent as a clear indication of what it does, and by so doing,
- It puts the engineer/inventor back in the drivers seat rather than the patent lawyer.
By so doing it evades the "overbroad" patent, but that will also be levied against it as a criticism: it also is a stark limitation on the potential utility of the patent and can be used to restrict the patents scope.I also think that because of that its power could also be eroded by the patent lawyers and it could be equally subject to attacks as the current system has been.
Therefore, other than the benefit of seeing the working example of the patent and being subject to searches by the engineer, it is of marginal benefit. There are many other factors contributing to the patent problem. They must be addressed as well:
- Patents are granted frivolously.
- Litigation is heavily weighted in favor of large corporations; in fact, individuals and small companies simply can't litigate.
- It is almost impossible for an innovator to know if there is a patent already covering his/her innovation.
- Patents can be used to block use of an innovation rather than encourage its use.
- Holders of "submarine" patents can deliberately lurk, predator-like, waiting for honest, unsuspecting innovators to invest huge amounts of time in already-patented technology. Straightforward and fair changes to patent law would completely change the landscape of patent litigation and innovation.
This proposal would have a marginal effect on some of these issues, but the onus of discovery is still on the public, and the individual developer. More than this suggestion is needed.mefus
In Open Society, GPL Software frees YOU!