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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.'"
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!
Well, with Novell now throwing its substantial patent portfolio behind open source, and Microsoft having promised they won't use their patents to crush open source, I don't see what all the fuss is about.
Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them.
I think a way to handle the patent problem
is to make a patent license which work with patent law
as the GPL work with copyright law.
Sorry this may seem slightly offtopic but.. How come John Kerry or GWB don't patent their ideas for laws? That way innovation in legislature can be boosted. Hell, you can then have companies R&D'ing effective legislation that can boost the economy. They can then sell the law to the politicians who will pay a either a one time lump sum or portion of the laws revenue to the company.
.. why isn't this a practice for legislature as well. Also it will cut down on Democrats stealing Republicans ideas and vice versa .. and spur innovation within these parties.
.. I'm off to patent my universal healthcare idea.
If patents boost innovation and improve quality of life
Technically existing business process patents can be utilized to patent laws.
Anyway, nuff said
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. =====
It's a way of pinning down patents to a specific algorithm. Some (most) of these applications are so broad it's difficult to figure out what the patent covers and what it doesnt. A working implementation makes this 100% clear.
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.
HBI's Law: Frequency of calling others Nazis is directly correlated with the likelihood of the accuser being Communist.
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.
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.
East Coast Brewers
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
Just how long do patents last on software, 75 years(ish)? It strikes me that innovation should be rewarded by a short patent of say 7 years then the IT community benefit straight after.
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.
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
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
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.
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
As I recall, you are also free to use patented stuff in your own home without paying for it - only commercial use would actually infringe.
IANAL, and while this seems like an attempt to weasle around the system I rather like it.
Suppose you're a keen young programmer and you've figured out a keen new algorithm for securing a communications channel or crash-proofing a database or animating an MMPORG monster.
He goes on to suggest "well, why not" a patent.
He expects us to believe that he doesn't realize that "a keen young programmer" hasn't got the tens of K dollars to get a patent, and certainly hasn't got the millions of dollars needed to defend a patent against wilful infringers.
I think the article is probably just astroturf; after all, Bray is now a Sun employee and the Sun's line is that software patents are a Good Thing.
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).
Want to Know How to Cheat the GPL? Read On!
Bray says that software patents do a lousy job of disclosing inventions: they are (sez he) ``notoriously inaccurate, incomplete, and unreadable.'' 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. That sounds optimistic.
Furthermore, any patented methods and the code which embodied them would be of no value to Libre software until the patent had run out. After all, public domain implementation or not, you still have the problem of a license for the method!
See what I've been reading.
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 .
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. )
Software patents, aren't in themselves bad. The thing that isn't addressed is their timespan.
Patents for physical things took into account the fact that they needed to be drawn, engineered, factories built to create them, distribute them, have them installed where necessary, and then cover them through a fair lifespan.
Take, for example, valves on a chemical plant. A new and innovative one could be thought of and patented.
Then, the factories set up to produce it (say a year from patent perhaps, now safe to give the designs under contract, as it's patent protected), then it needs to be marketed, so, perhaps 2 years from inception to starting to get used. Initial tests and usage in industry, say, 4-5 years until it really starts to be used industry wide.
Lifetime of a valve, perhaps 10 years if they're in a harsh environment, more if not. So, you get in one round of replacement of the same thing.
But, the timescale there for a physical item that's supposed to last 20, 30 or more years isn't terrible. It's still VERY useful in 30-40 years.
Now, software, protected for the same duration.
Patent is drawn up. Software out the door days later, as there are no real tooling and production costs (relatively speaking). It's possible for sales to ramp up and reach market saturation within a year, if it's something innovative and useful. Industry acceptance and having it treated as 'old and established' within 2.
Within about 5 years, it's (usually) classified as obsolete.
So, for the next 20 years after being obsolete, it's holding back the market from developing it's successor, because it's patent encumbered, and license fees need be paid on it. So, the next generation flounders.
If Patents took into account the average obsolescence period of the market, and allowed a patent for the given period, things would work nicely.
Once it's in the 'getting a little old and clunky' period, anyone can then make a free implementation of it, or perhaps design it's successor based on the original. OR a proprietary new version, or whatever! But it keeps things moving, which is what patents were meant to do all along.
5 years for a software patent? Sure, that sounds fine. Maybe 7 or 8 at a push. If you've not made money off an idea in that time with a captive market in the tech game, you're probably not going to.
But the 5 years is enough to allow something to prosper, while ensuring that you keep thinking of the next idea, or allowing someone else to.
And perhaps it would stop all these patent shops churning out nothing in the knowledge that they've got 20 odd years to sit on it and hope someone comes up with something they can shoehorn into what they've got on their papers.
5 years is a lot less time, enough, really, to say "If you're not going to use it, then you've had your chance to, now let someone else actually do something good with the idea"..
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?)...
"...While he deprecates the 'business-method' patents like one-click ordering..."
You keep using that word. I do not think it means what you think it means.
IM
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
In any case, the traditional model of a patent is absolutely inapplicable to software. The original purpose of a patent was a compromise deal between an inventor and a government {acting as a representative of Society}. The problem was that an inventor might have exhausted their capital developing a working prototype; if they now show this directly to an established manufacturer, the manufacturer might decide to cut the original inventor out of the loop; whereas if they approach a {non-technically-minded} banker hoping to obtain a loan on the strength of the invention, with which to set up their own factory to make it, the banker might not be convinced of its viability. So the Patent Office was set up, to give inventors an official letter precisely describing their invention, and granting them a time-limited monopoly over it. This can be used as proof that the invention works {to obtain financial backing} and as a description of how to make it {to obtain manufacturing services}, but it also specifies a date after which the invention is to be given to society at large for the benefit of everyone. If the invention is a good one, then any loan should have been paid off long before such time.
In the case of software, where the cost of reproduction is essentially nil, the inventor is not prevented by financial constraints from further developing their idea beyond the prototype. So the original need for a patent is absent.
Je fume. Tu fumes. Nous fûmes!
- 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
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