Software Patents Could Stop EU Linux Development

sebFlyte writes "An expert in computer and Internet law has advised that if the CIID is passed in europe (which looks likely but is not certain) then the threat of patent litigation could bring European Linux development to a grinding halt." From the article: "There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated..."

Comments

"An expert"?

[fiji]

Given the US has stupid patents already and the Linux development still continues there... I am not convinced how expert this "expert" is.

-ben

Re:"An expert"?

[johannesg]

Chances are that once all major markets are covered by anti-patent law, interested parties (I mean Microsoft) will strike in force. Right now they are probably willing to hold back, in order not to scare off the EU.

Never going to happen

[SleeknStealthy]

It is impossible to stop the development of software against someones will. It may have to get developed under certain restrictions, but it is impossible to stop because of the inevitable communication through the internet. This is how software is so easily outsourced and it is the same reason development for linux cannot be stifled through litigation, but rather only through disinterest. my take

Why does everything has to be patented??

[Masq666]

Why does everything has to be patented?? Does anyone have an answer?

Re:Why does everything has to be patented??

[Anita Coney]

Because if the everything can be patented, the status quo would have eliminated all competition. There could be no young upstart setting new trends because chances are, it would violate at least one patent.

Once software patents are valid throughout the world the current tech status quo would have no incentive to innovate. Technology will come to a stand still. Prices will rise. And we will all suffer.

Re:Why does everything has to be patented??

[hey!]

In a nutshell, because coming up with new innovations is hard and risky, but exploiting past innovations is safe, and eveyrbody loves a nice, safe cash cow.

Ostensibly, the patent system is to incent inventors to make new creations. Historically, there is no empirical support for the idea that this is necessary or even useful, but it makes kind of a rough intuitive sense: commercializing an invention takes work. Why would somebody do that work if anybody could simply copy the idea?

Well, the answer is, to stay ahead. Historically, when patent protection was weak (as it was until the start of the 20th century in the US), companies innnovated like mad, trying desperately to keep their new methods secret fora few months longer to exploit a short term advantage. This is not a pleasant life if you're an investor: it's much easier and more predictable to milk a cash cow.

Overall, while patents do probably help inventors somewhat they also hurt them in other ways. Creative people have a dual relationship to ideas. They create their own, and they make use of others'. Invention is both a process of originality and derivation.

Period.

It follows that creative person's relationship to intellectual property has a kind of balance to it. Creative people would benefit from a balanced patent system which had high standards for "originality" (which is inherently fuzzy), relatively few patents are granted, and they persist for relatively limited terms -- long enough for the inventor to be able to sell and profit from his services, and not any longer.

However investors who hire probably the majority of inventors these days, do not have a balanced interest in intellectual property. It's entirely unbalanced. For investors, exploiting a monopoloy on past innovations forever would be simple and easy, and if innovation stopped, it wouldn't matter as long as they got in the door in time.

The whole software patent things stinks of a land rush. They're going to divvy up and privatize knowledge of how to do things, and then squat on it for as close to forever as they can manage. If innovation grinds to a halt as a result, it won't matter, because they'll have their cash cows.

This would halt the entire software industry

[Husgaard]

Legalizing software patents in Europe would not only be bad for Linux and other FOSS projects, it would be bad for the traditional closed source software industry too.

The EPO has already illegally granted over 30,000 software patents in Europe. Because these patents are illegal they cannot be enforced in court. But this means that the european software industry doesn't care about these illegal patents.

If software patents are legalized, these illegal patents suddenly can be enforced in court.

It is likely that the european software industry will come to a standstill for years after software patents have been legalized, as they have to spend their resources fighting in court instead of doing research and innovation.

Patent articles on patents

[Red Moose]

If this software patent passes, I will patent a software process that allows publication through HTML or any machine readable code of any information relating to software patents. It will be akin to a Hello World program in simplicity and this will do a) Stop these articles being posted every two days (although I realise they are relevant) and b) Stop the corps who want US-style software patents form ever having an accesible database to ever search for those patents

I will then own the rights to ever have an information page on any patent stored electronically. This is called legislating yourself back to the stone age but is theoretically possible in the age of free-for-all software patents.

Re:Maybe Linux has violations in it..

[Slak]

IANAL:

"..but don't they lose the right to sue after it has infringed openly for some time?"

In a word, no. Patent violations are given no free pass if the holder chooses to ignore the violation up until the last hour.

"Hell, it might even count as previous art against some of the more frivolous (ie most) software patents."

It is true that Linux MAY contain prior art for some patents. But the costs of defending against a patent attack run at least $500,000. That's a pretty big chance to take for individual developers. Now companies like IBM, might take a different view.

Cheers,
Slak

Heavy assertion

[kbahey]

There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged.

This looks to me like the FUD we have been hearing for a while now. This kind of repetitive rhetoric (argumentum ad nauseum) serves one purpose: to instill in the minds of decision makes in the IT industry (those who hold the strings of the pruse, or those who recommend purchases to them) that they are at risk if they chose Linux.

If there are violations let us see them! Show us!

The worse that can happen is those portions will be recoded to be patent free in days or weeks.

Microsoft in Violation of Patents?

[Spinlock_1977]

According to an IP lawyer I once had beer with, and since confirmed numerous times in the press, most large software companies have violated each others' patents - numerous times. But since everyone has "injured" everyone, most no one sues - since they will simply get counter-sued on a different patent.

That said, it seems obvious that the MS kernel, like probably all other kernels, contains IP violations. The difference is that only the FOSS kernels are open to public scrutiny.

So commerical companies can keep their IP violations largely secret, while FOSS ones get vetted publicly. Anyone wanna bet whether a closed kernel or open kernel has more IP violations? Does anyone believe that the MS kernel is completely free of IP violations? Anyone wanna buy a bridge?

Re:illegal activity

[Jussi K. Kojootti]

Who said anything about 'knowingly'?

The problem here is (or at least this is the belief held by many) that it's nearly impossible to write software without unknowingly violating a patent. This leads to the inevitable conclusion that Linux, Windows and every other large software package probably violates various patents.

Making Loud Noises while Stalking your Prey

[buddhaseviltwin]

At this time, many lawyers have advised their clients to postpone litigation at this point pending the CIID passing in Europe.

They understand that sueing open source projects at this point would:
* Scare away the Europeans from adopting software patents and turn them into an open source safe-haven by creating a good public case against software patents.
* Have no financial benefit whatsoever.

If Linux/Open Source projects/foundations haven't been sued yet, it's because it is currently being stalked by a hungry pride of lions who want to gaurantee they capture their prey.

Antelopes are skittish for a reason.

Could I get some help here?

[BaldingByMicrosoft]

I've been Googling for acknowledgement of Linux kernel patent violations. Other than statements by SCO, I haven't found any.

Does anyone know what Jeremy Mark Malcolm was talking about when he wrote: "There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged."?

He is described as "an information technology lawyer specialising in Internet-related law...". Could this just be twisty English, saying that: Some open source software is acknowledged as having patent violations and that The linux kernel is an example of open source ?

Moderate -1 FUD

[bruce_the_moose]

Why was this story, with zero facts and only the opionions of some lawyer posted. We have Groklaw to tell us the status of the EU software patent wars, and that source will also more realistically what it all means without the FUD.

Re:You would think that the EU would wake up

[Husgaard]

Thousands of out of work people that were previously high-paid, hence good tax earners.

<SARCASM>

Yeah, tens of thousands of software engineers will probably lose their jobs.

But who cares about sleazy people like them? They only research and innovate instead of doing something productive.

The good thing is that we will get a lot of new jobs because of this. Thousands of fine patent lawyers will get new jobs.

</SARCASM>

There is a reason that 47% of the swpat-positive replies to the hearing that the European Commission held were from patent lawyers and patent offices.