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Patent Law Ruling Threatens FOSS
savio13 writes "The EFF has asked the US Supreme Court to overturn a patent law ruling that could pose a serious threat to Free and Open Source Software projects. A recent Federal Circuit Court of Appeals decision required that even the most obvious incremental advances can be patented unless it can be proved that someone else suggested it prior to the patent being filed. As such, many 'bad patents' are being used as roadblocks for legitimate innovators, especially those working for FOSS projects (who have better things to do then search through thousands of technical papers for some mention of the obvious). The full brief is available online in PDF format."
Than to sort through yestarday's stories: http://yro.slashdot.org/article.pl?sid=06/08/24/15 13218
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
Quo usque tandem abutere, Nimbus, patientia nostra?
If enough people are using your free Open Source tool, then yes you might get sued for infringement. You might not be making money, but in the eyes of the patent holder you are costing them money.
"Some days you just can't get rid of a bomb."
Imagine someone patents a software idea. Some OS group of guys pick up that idea and make an OS project. That OS project is free, but becomes popular. Companies begin using the OS project. The patent troll then comes a long and sues the companies. The companies in turn sue the developers, who being average OS developers do not have an LLC set up and wind up losing their houses, savings, and half their wages for the rest of their lives.
Two important points here: 1) patent trolls are evil leeches on society and 2) set up an LLC to protect your personal assets from lawsuits based on your professional works.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
as Greed drives yet more brilliance out of the USA
I think we need to add a new clause to software licenses: "Not for use within USA or other countries where software patents are applicable. Using this software in any of these countries is your responsibility and in doing so you accept to pay any patent fees that may affect this software."
Jumpstart the tartan drive.
"Because then the guy that has the patent isn't making money, which is why he received the patened in the first place, to amke money."
Companies don't patent things 'to make money', except indirectly: the primary use of patents these days is to keep new competitors out of the market, and free software is the worst kind of competition to have, since it doesn't cost anything. In any developed market, odds are all major companies will have patent cross-licensing deals, so patents don't affect them, they only affect new competitors that want to join the fun.
http://www.uspto.gov/web/offices/pac/doc/general/i ndex.html#whatpat
Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable.
This says that if something is obvious, the patent can be rejected even if there is no real prior art or previous "suggestion" or anything. Does a judge have the right to change the USPTOs rules on it's behalf?
IMHO, They deliberately try to make it sound like the EFF is at the forefront of this case, appealing it to the Supreme Court.
What really has happened is that KSR has gone to the Supreme Court asking for review, and the Supreme Court granted review.
This happened a few months back, actually.
The EFF has filed a brief in support of KSR.
About 10 other briefs in support of KSR have been filed in support of KSR, besides the EFF one, including some more important ones, like the Solicitor General's (representing the views of the US/Bush Administration).
The Supreme Court generally cares more about what the SG thinks than the EFF.
I don't see what staging protests is going to do. If the people with lots of cash want FOSS made technically impossible to create in the U.S. they're going to get their way. The government (whether you like Bush or not) is extremely pro-business right now and for all the wrong reasons. It's one thing to make sure businesses operate fairly, it's another thing entirely to give them control of the law via lobbyists. This will likely happen here and we pro-FOSS people will have to do whatever it takes to get by. We're already "criminals" based on the DMCA if we're watching DVDs on our Linux boxes using Xine or MPlayer. That doesn't stop many of us anyway. Same thing applies to the development of new software. Hell, if we had to, we'd probably use pseudo code that gets sent and translated in a non-U.S. country to something that does work so it technically wasn't written here.
-"...bad old ideas look confusingly fresh when they are packaged as technology" - Jaron Lanier (Digital Maoism on Edge.o
At what point will it become so difficult to do research in the US that all meaningful science is done in other countries?
Due to global trade agreements that enforce US IP laws in many foreign countries, how long will it be before no one in the world can do any meaningful research without being liable for patent infringment?
No, the summary is saying something more like this:
1) Someone patents something. (Even though there's prior art)
2) FOSS Person doesn't check patents, because he knows he's doing something that's obvious and has been done before.
3) FOSS Person writes a program violating patent that should never have been issued.
4) FOSS Person gets sued by commercial entity that holds the rights to the obvious patent, and loses because he doesn't have the resources to fight it in court.
Stupid patents should not get granted. If they do, the patent office has become no more than a filing cabinet to reference before going to court. OTOH, maybe that's the whole idea.
Forget thrust, drag, lift and weight. Airplanes fly because of money.
Think about it this way though, if some part-time OSS developer can stumble on the same idea how non-obvious is it?
There is a difference between "not done yet" and "non-obvious". The non-obvious leap is something where even if you knew about the problem you wouldn't have likely found the solution.
Take LZW for example, it's a rather straightforward addition to LZ78. In my books any competent comp.sci student would try that too. It's obvious. By the same token, it wasn't obvious how to get MP3 like efficiency 20 years ago in encoding audio [given that the state of the art back then was ADPCM, CELP and u-Law].
Most OSS developers couldn't implement an MP3 codec [hence the lack of options in choosing such a lib] but most could implement LZW, specially when given LZ78.
Tom
Someday, I'll have a real sig.
You know that judicial activism that those "right wing wingnuts" bitch about? This is an example of it. Judges seem to often lack any common sense, reading comprehension skills and any sense of limit on what words can actually mean. Kelo v. New London's gang rape of the phrase "public use," which was interpretted in its most legalistic and textbook definition, rather than it is more long-lived, vernacular use, is but one of many examples... this being the latest.
Even most patent law defenders would agree that this is bad and outside the scope of what patents are for. Unfortunately, judges have often proved that if they can interpet something some way, they will almost seemingly for the hell of it.
The only solution I can think of involves ending life-long terms and breaking up the law schools, which are, quite frankly, dens of sophistry, malfeasance, linguistic license and villainy. Generally speaking, any law that requires a highly specialized person, trained **in the law** (not the regulated profession), to interpet it, is a bad law.
Support EFF. They do useful things.
I've never understood all the hooplah about this open source stuff and taking grief from the corporations. If you want to write free software and give it away to the world for free, no problem - just do it anonymously and all of this patent headache goes away.
Steve
A work that expires before its copyright never enters the public domain and thus enjoys eternal copyright protection.
...and why patents are so unjustifiably incompatible with software, see e.g. this paper, as well as a free book on the "mechanics" of the patent debates.
What really bothers me is not simply that the patent system is being used to protect the obvious these days, because it's a reflection on the general zeitgeist in America.
It seems to me in a very general way that there is no sense of achievement in American business outside of the next quarter. Instead of concentrating on moving forward and doing new things, there's an emphasis on not moving at all and creating wealth by protecting what someone has.
It's become a very different kind of hostile business climate. Not so many years ago a hostile business climate was described as one with high tax burden and many regulations that made it expensive to run a business. I'd say we're well on our way to eliminating both in the U.S. and yet the business climate is even more hostile because of the threat of litigation. Is the country better off for this? For the majority of Americans, I'd say no. Not at all.
http://www.maxineudall.com/2010/02/should-economists-be-sued-for-malpractice.html
The patent system was designed to shelter innovation by offering a limited monopoly to develop a business or livelihood around it. Parts of it operate quite well, however, in the intellectual life it has serious shortcomings. Software is one of those parts of the intellectual life where the character of the process is more akin to governance then to making a cunning artifact.
This therefore brings us to three observations: first, software developers move much faster then business processes; Second, the goal of business is adding value (like support and auditing) to generate sales; third, the common wealth is ill served by business turf wars. If business believes in competition, then let them coach their teams better. I'll expand on these points.
The fundamental design of systems is very fluid. As an engineer that has worked on and co-ordinated large projects, I find that I tend to go though about four or five related designs before settling on a particular architecture. I have to think of the cost of the hardware, but also of the system cost. It serves the efforts no good if I design cheap hardware that prevents the software guys from achieving the system goals. And the software guys iterate over several solutions while deciding how to partition their part. When we are very, very lucky, we may have some time to sit down together and try to find the exact right "cut here" line!
Assuming that we all managed to get it right, and we are actually delivering what the customer needs, we get to support it. That is the value of business to me, as a designer. It means that others (The Customer) can benefit from our collective work, that they can continue to do so, and that they will soon find new, interesting things for us to do. Marketing here does the research of what is out there so we can digest it and figure out the better mousetrap. They also do the customer legwork so the people we are talking to know what their system requirements are. (their business can be treated as a system in this conversation) The rest is negotiation, and avoiding the dead ends.
A humourous example: The Customer Wants a Car in the Bauhaus Style; that is, the salient marketing features are spare, rectilinear lines. The dead end is delivering Bauhaus Square Wheels. Clearly, intellegent compromise is needed.
Playing around with turf wars, the adult equivalent of King of the Hill, is a gumption trap that will suck the life right out of the organization. I don't think any intellegent executive wants this, but they'll scrap if they have to. Wisdom consists of setting up our affairs so we don't have to.
As a humourous close, why hasn't someone started to patent forms of government? I see a huge market potential in this. Dictatorships could patent Democracy, for example...
This is progress?
Patent law is just as big a mess as copyright law due to technology and commerce slamming into one another...
Watch EFF attorney Jason Schultz tear the roof off in the new documentary, ALTERNATIVE FREEDOM. Maybe you will learn something or be able to show your friends and then we can all make sure digital rights are always kept in mind...
Also features Dangermouse (of Gnarls Barkley), Lawrence Lessig, Richard Stallman...
Check it out:
http://alternativefreedom.org/ [alternativefreedom.org]
Patents are supposed to be for specific implementations, not general ideas.
Check out the variety of automatic transmission designs, each under it's own patent. Yet clearly they do the same "obvious" task of shifting.
The only reason that isn't the case for software patents is that the USPTO and legal system haven't got a clue how to do anything but follow the money. And the money is in the hands of those who benefit from misinterpreting the law.
I do not fail; I succeed at finding out what does not work.
Yes, you're correct- let's all ignore IP laws, and just be careful to do so anonymously so that we can't get in trouble. Who cares what laws they pass, we'll just ignore them anyway. Of course, if you're going to run illegal software, why bother with Open Source when you can just pirate the latest Microsoft software?
We've discussed this with you in the past, Steve- Open Source is worthless if it isn't legal and doesn't credit the inventor. For one thing, many Open Source products come from or are supported by companies that would not participate in illegal activity. For another, most people want to take credit for the work they have done. For a third, laws that illegalize good behavior make criminals out of good people.
You are reading a copy of my copyrighted post.
The rest of the planet could easily use the threat of stopping the use of the federal reserve note to get the US to stop being nasty.That's it, that's the superweapon that can't be ignored.
The only way the US government is proceeding along this globalism path without total economic collapse right now is the repatriation of already exported greenbacks,coming back in the form of trade for further IOUs (the economy is already borked from that right now, no fix for it really). When that stops, and it most certainly will sometime, well, the Feds can print up all they want to then,and you can see how that works out like in zimbabwe right now. It doesn't.
As to military might, excluding planet busting mass use of WMD, which would be suicide basically, I think the current running wars show how effective high tech is *or isn't* when you have significant numbers of the local population annoyed with you. It only takes a few percent of the locals really annoyed, that's it, you are stuck in a war of attrition you will lose eventually. They can right now barely hold on to small selected areas in a small country, let alone try to pull that off in numerous nations all at the same time all over the planet. I don't think it's even remotely possible to do that.
Yes but if you invent a braking system that makes a motor vehicle stop, then get a patent for it. Then someone else goes out and makes a braking system that is different but does the same thing. In the software world you would be able to sue someone else just because the outcome is the same even if the implementation is comletely different. This is one reason software patents shouldn't exist. Someone could write a program in VB and patent it.. then someone could come and write a similar program in Java that has a completely different implementation and get sued.