IBM's Supreme Court Brief Says That Patents Drive Free Software

H4x0r Jim Duggan writes "For the Supreme Court's upcoming review of the Bilski decision, IBM has submitted an amicus brief claiming that software patents 'fueled the explosive growth of open source software development' (!) (p38 of linked PDF). EndSoftwarePatents, for its own amicus brief, is looking for help building a list of free software harmed by software patents, and a list of companies that distribute free software and are taxed by patent royalties."

Comments

Easy enough

[T Murphy]

Spore, Crysis and Bioshock are all free, but got all kinds of bad press because some illegitimately-sold non-free copies included patented DRM software. If this DRM had nothing to do with these games I'd bet they would be a lot more popular.

Re:Easy enough

[xouumalperxe]

But the shoplifted copy would have DRM.

Put's the lie to their open source claims

[bitemykarma]

software patents 'fueled the explosive growth of open source software development

I guess we know which side IBM is on. Too bad.

Re:Put's the lie to their open source claims

[sconeu]

IBM is on IBM's side.

Re:Put's the lie to their open source claims

[spazdor]

HP is not on IBM's side. This I promise you.

Re:Put's the lie to their open source claims

[Anonymous Coward]

Would you stop fucking using the word "evil" already? There's nothing of substance in such claims. No corporation is "evil", and "evil" is just a matter of what side you're on.

So what, then, would you call an entity that is in general designed to remove wealth from as many hands as possible and put it into as few hands as possible? Consider that the most effective corporation would limit the redistribution of wealth on both sides by having as low as possible costs (e.g. labour) and beneficiaries (e.g. owners, shareholders).

And yes - it is a matter of what side you're on. Taking a binary view, if you sit on the side that believes that wealth should be increasingly concentrated then you'd be correct in arguing that no corporation is evil. However, if you believe that wealth should be redistributed to an increasing number of people it would indeed hold that corporations are 'evil', since they'd be harmful to the 'greater good' by design.

Re:Put's the lie to their open source claims

[omnix]

So what, then, would you call an entity that is in general designed to remove wealth from as many hands as possible and put it into as few hands as possible?

The correct term is corporatism or fascism, which seems to be the direction of the Republican party. This is the fundamental argument against unregulated capitalism which has become prevalent in the US over the past 100 years.

Not that I believe the Democrats are any better, since they ultimately are a corporatist organization as well. The Dems just lack the organization...

Re:Put's the lie to their open source claims

[Garridan]

So what, then, would you call an entity that is in general designed to remove wealth from as many hands as possible and put it into as few hands as possible?

I dunno, maybe "open for business?" Those that are designed to remove wealth from as few hands as possible and put it into as many hands as possible usually don't make it very far.

How do you expect a company to work? People open a business for 2 reasons: (a) because they want to do something they enjoy, and (b) they want to make money. Type (a) generally stays pretty small and they quietly succeed or fail and nobody cares. Type (b) gets large, accumulates lots of customers, and pulls in a lot of profit -- and the people at the top make the most -- and the person (or people) at the very top want to give as little possible money to the people below them, because that's less in their pockets. Or in your terms, "remove wealth from as many hands as possible and put it into as few hands as possible".

Re:Put's the lie to their open source claims

[jedidiah]

> and there is nothing "evil" about maximizing profit.

This sort of nonsense is EXACTLY why the modern corporation is evil.

We have this culture of robber baron hero worship where corporations
are expected to "screw everyone else" for the short term benefit of
stockholders.

Corporations are already problematic enough. They are mobs of people
with all moral awareness and accountability removed. Short of something
in the corporate charter, any corporation will be as evil as it can get
away with in this climate because that is how rewards and punishments are
structured.

Some corporations just have a more enlightened view of self-interest.

Re:Put's the lie to their open source claims

[Spewns]

Well done on exemplifying the disaster that is capitalism.

Re:Put's the lie to their open source claims

[Anonymous Coward]

If you want more money EARN IT. Don't go crying about how other people are making more money than you. It just makes you look like a lazy fucking bum.

Again:

If you sit on the side that believes that wealth should be increasingly concentrated

Do you see the problem there? If wealth continues to concentrate (we're now very similar to just prior to the great depression in terms of income inequality) it won't make much difference whether you are a lazy bum or the hardest of workers, you won't have access to it.

You're under the mistaken impression that you are somehow entitled to be a 'have' with just a little effort. While that may have been mostly true over the last 50 or so years, there's no guarantees that it will continue. And with corporatism and individualism in overdrive of late it looks extremely unlikely that it will last very long at all.

Re:Put's the lie to their open source claims

[Shark]

"What kind of a society isn't structured on greed? The problem of social organization is how to set up an arrangement under which greed will do the least harm."
-- Milton Friedman

Re:Put's the lie to their open source claims

[voidphoenix]

Read "The Road Less Traveled" and "People of the Lie" by M. Scott Peck, M.D. for a professional psychologist's definition of "evil", in a serious sense. He also discusses how organizations can be "evil".

proper use of the word "patent"

[presidenteloco]

The following phrases are among the few common uses of the word "patent"
as an adjective:

"That is patent nonsense."

"That is a patent lie."

WTF IBM

[Microlith]

Good to see that IBM has no clue what they're talking about. Patents most certainly have not fueled the explosive growth of open source software, the open nature of the licenses and community have. But go ahead and misrepresent the open source community IBM, for your own sake.

Patents sit as an ever present threat that threatens to push development outside of software patent permitting countries, and makes software that is known to violate them into seriously gray territory. I also don't see how a patent, something with the sole purpose of denying use of the described mechanism to others, could possibly aid open source.

Re:WTF IBM

[Sloppy]

Patents most certainly have not fueled the explosive growth of open source software

Would libpng have been written, if not for the LZW patent? How about all of xiph's codecs? We wouldn't have Vorbis if it weren't for the MP3 patents.

All that's really left to debate is whether this project, that project, etc all add up to something that counts as "explosive growth." And at that point, it's just not an interesting question.

Saying patents fuel software development (both free and proprietary, since both types are actually harmed by patents) may be a distortion, because it (misleadingly) implies that the patents help the overall situation, but on its face, the statement is literally true. Patents force people to work around patents. It's economically inefficient (just as hurricanes fuel the construction industry) and therefore probably not desirable, but it really does happen.

Re:WTF IBM

[Microlith]

There could be aspects of the Vorbis codec that are patented, but no one knows as no one (for good reason) is looking. VP3 was written well before it became Theora, and unfortunately is in the bad position of being inefficient.

But let's consider what we don't have because of patents? How about wavelet compression, and the adoption of JPEG2000? Completely ground to a halt as one company holds a slew of patents over it.

Yes, patents force people to work around them. They're stuck reinventing the wheel, poorly, and remain at risk of patent suits. The problem with software patents is they're either so stupidly simple that everyone runs over them (and strive to remain ignorant of having done so, to lessen any possible damages) or are so vague that they cover huge swaths, denying entire fields and crippling compatibility.

Re:WTF IBM

[camperdave]

Patents force people to work around patents.

So a patent produces explosive growth in open source by encouraging the development of alternatives to what the patent covers? Nice. I think I'll use that line as a sig.

Re:WTF IBM

[SanityInAnarchy]

We wouldn't have Vorbis if it weren't for the MP3 patents.

No, but we'd have AAC, which is arguably just as good, maybe even better.

And from what everyone is saying, Theora is far inferior to h.264. If patents weren't an issue, we'd all just declare mp4/m4v with h.264 and AAC as the new standard for the video tag, and there'd actually be cross-browser support.

At the moment, because of real patents, Opera and Firefox won't support h.264 (and thus, youtube.com/html5), and because of imagined patents, Safari won't support vorbis. Thus, it's not just open source projects, but open standards, which are neutered by software patents.

You may have a point with libpng, but then again, gif wasn't that bad. Indeed, gif supports things png doesn't -- animations, for one (there are two competing implementations, one of which has growing browser support (but nowhere near png), and one of which has practically no browser support.) I do prefer png, even with the gif patent expired, but at the end of the day, how big of an improvement was it?

Patents force people to work around patents. It's economically inefficient (just as hurricanes fuel the construction industry) and therefore probably not desirable, but it really does happen.

In other words, it's a broken window model.

Re:WTF IBM

[T.E.D.]

They wouldn't need to be written if not for those software patents. Instead, those developers would have spent their time writing something new. Very good example of how patents have retarded growth.

Re:WTF IBM

[Abreu]

Isn't this reasoning similar to the Broken Window Fallacy?

If MP3 didn't have patents, we wouldn't have ogg, true. Which means the talent used to REINVENT THE WHEEL in the ogg codecs would have instead been used to improve the patent-free MP3 instead (or to work on other projects).

Re:WTF IBM

[Chris Mattern]

While I agree with your post, a patent is certainly *not* like a hurricane.
Hurricanes destroy value. Patents reallocate value to the inventor.

Patents destroy value because the tarriff exacted by the inventor makes uneconomic uses that would otherwise be practical. Part of the value that is not destroyed is then reallocated to the inventor.

If the value created by encouraging the inventor to make the invention in the first place outweighs the destroyed value, then the patent is still a good thing. But once the invention is in existence, patents unquestionable destroy value.

Re:WTF IBM

[Antiocheian]

IBM is correct, patent holders find it easier to "open the source" while preventing others from employing the idea. This is exactly what RMS wrote: Open Source and Free Software is not the same.

Read here http://www.gnu.org/philosophy/free-software-for-freedom.html

Re:WTF IBM

[__aayurq3262]

Saying patents fuel software development (both free and proprietary, since both types are actually harmed by patents) may be a distortion, because it (misleadingly) implies that the patents help the overall situation, but on its face, the statement is literally true. Patents force people to work around patents. It's economically inefficient (just as hurricanes fuel the construction industry) and therefore probably not desirable, but it really does happen.

I regularly go to meetings where management asks the engineers for ideas to get around some competitor's patent. The company would just copy the competing product if possible, but the legal suits say it's too risky. The engineers absolutely love these meetings. Half the time, we come out with some fresh idea on how to make it better or cheaper. The next question the boss asks the suits is whether WE can get a patent. You can't convince me that management would ever have taken the risk to improve the product or do something new without the driving necessity of a competitor's patent.

Re:WTF IBM

[clodney]

Talking about PNG replacing GIF is the wrong angle. You should be talking about PNG and TIFF. AFAIK, the TIFF format can do everything PNG can do (and then some), but was also encumbered by the LZW patent in a significant way at the time. PNG has no real reason to exist, and was a colossal waste of developer effort to create yet another image file format, all because of software patents.

Hmmm, so many things I disagree with in that paragraph. TIFF files can use LZW, but it is one of many supported compression methods, so it is easy to write TIFF codes that doesn't need LZW. TIFF files are limited to 4GB since positions in a TIFF files are 32 bit offsets from the start of the file. That also means that one piece of a multi image TIFF file can not be used without at a minimum knowing where it came from in the file, making it hard to split/join TIFF frames in a TIFF file. There is no restriction that the tags and data portion of a TIFF file be arranged in any particular way, so in general it is not possible to render a TIFF until you have the entire file in hand, making streaming difficult.

In contrast a PNG file is a block of chunks, each of which describes itself, and makes no reference to other locations within the file. It can be streamed easily, and the interpretation of the chunk does not depend on where in the file you find it. PNG files can be more than 4GB. The fact that PNG uses LZ77 rather than LZW is a footnote at best. In case you can't tell, having written software to work with both, I find PNG much more programmer friendly than TIFF.

Re:WTF IBM

[SanityInAnarchy]

Yes, GIF really was "that bad", and PNG was a major improvement on it.

Which does raise the question, would people really have never added these to GIF, or developed PNG, if it weren't for the GIF patent?

And GIF's only "advantage" is mostly used for distracting annoyances,

Yet is still used for, to take an obvious example, AJAX spinners.

it would be quite reasonable to consider it a disadvantage.

Having a feature vs not having a feature?

Is someone under the impression...

[Snotman]

that IBM is an altruistic company? Of course their comments will be self-serving as the number one patent submitter for years. They have mastered the game of patenting everything and they are not about to let that mountain of assets go.

Here's how it works:

[Tablizer]

1. Stupid patents piss off techies
2. Techies grow to despise corporate-produced software
3. Techies motivated to make open-source variants to take sales away from evil corporations
4. Profit! (Well, okay, I added this one out of habit.)

Re:Here's how it works:

[Verdatum]

I love this idea. I propose a new slogan: "IBM, we're dicks so the good-guys can one-up us."

Re:Here's how it works:

[ajs]

Instead of exclusively considering prior art, we should give the public a chance to respond to every patent application by being given a description of the device, and have an opportunity to develop an invention to the device.

This would break the patent system. The goal is not to reward people who solve seemingly intractable problems. The goal is to foster innovation by providing those who innovate with a lock in their inventions. Innovation is often accomplished in small steps. The paper clip was just a way of using wire to hold papers together. Given its description, you could make a paper clip, but the insight and innovation were rewarded with a patent.

When we discuss software patents, there's a new kind of problem. Software is, inherently, an expression of mathematics. Patenting math is tough to accept because you can't change the way math relates to the real world, so you're essentially patenting a piece of the known universe... which doesn't make a lot of sense.

Public key crypto is about the only thing I can see as a defense of patenting software. Here, you're patenting, not the math, but the application of the math to a specific problem domain to perform a task.

But the question is, how do you move from that to a patent system that can discern the difference and make the right call? Fundamentally, I think you need a review system which is populated by real academics and professionals or it simply can't work.

Multimedia

[Anonymous Coward]

Thanks to patents, there are numerous alternatives to the MP3 format.

Thanks to that GIF patent (now expired), there is PNG.

So yes, patents drive development by "encouraging" people to re-invent a different, maybe better, wheel.

Re:Multimedia

[marcansoft]

It worked for the better for MP3 (Vorbis) and GIF (PNG), but we're still struggling to get Theora up to h.264's level. I'm personally not sure it's ever going to *quite* happen if they restrict themselves from using patented h.264 features. Nevermind that Theora might infringe on some patents (in fact, it almost certainly does). You can only be sure that something infringes on a patent once you find it, but you'll never know whether there are any patents that cover a portion of your algorithm until they show up trying to sue you.

The only reason why patents "drive" development is by forcing people to develop a non-infringing alternative, and they tend to improve upon it to drive users away from the patented version. A lot less time would be wasted if the open source community could just improve upon existing standards without having to reinvent everything from scratch.

Junk patents

[Joce640k]

I'm not against *all* patents. Some algorithms have a serious amount of R&D and ingenuity behind them.

The problem is the BLINDINGLY OBVIOUS and TRIVIAL things that are being awarded patents.

Examples:

A special comparison operator for pointers: http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220040230959%22.PGNR.&OS=DN/20040230959&RS=DN/20040230959

Encoding of floating point numbers as non-negative integers: http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220050023524%22.PGNR.&OS=DN/20050023524&RS=DN/20050023524

Policy change notification: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7,269,853.PN.&OS=PN/7,269,853&RS=PN/7,269,853

There's zillions of them and I'm pretty sure that every line of code being written today violates at least one. It's the equivalent of allowing copyright of individual English words.

Re:Junk patents

[mayko]

The same problem is happening in the biotech industry. Patents are being given out for individual proteins, which is not only stupid, but there is no pressure for these patent holders to actually DO something with them. This kind of shit only helps to hold back legitimate progress.

Re:Junk patents

[nine-times]

I'm not against *all* patents. Some algorithms have a serious amount of R&D and ingenuity behind them.

I actually find it a bit tough to come up with a good answer to the problem of patents. The first thing that popped into my head when I read about "free software harmed by software patents" is the whole thing about H264/Theora and the HTML 5 "video" tag.

Now I don't really know what's patented in H264, but I could imagine that it may well be some algorithms with a serious amount of R&D behind them. On the other hand, free software can't legally implement those codecs, and so Firefox can't support it. Free software also can't technically (AFAIK) implement MP3 or AAC encoders/decoders without paying a patent fee.

Now I suppose you could say, "so what?" Fair enough. Still, I have it stuck in my head somewhere that these are important standards that we need to be able to use freely in order to promote the arts and sciences (which is the whole point of patents, isn't it?).

Re:Junk patents

[flymolo]

Sadly, I think the answer may be government intervention. I was at the aviation museum in Seattle, and I learned something interesting.

The government had to nationalize a bunch of patents, set the license fees reasonably and pay back the original inventors to get more people working on planes.

It may be that something similar has to happen to get us the web we want.

Re:Junk patents

[bzipitidoo]

We shouldn't hand out monopolies, no matter how much research went into an idea. We should value and compensate worthy efforts in other ways.

Squashing everyone else who might somehow possibly infringe is a very negative and expensive way to operate. Remember that the courts actually considered shutting down the Blackberry, before settling on a ridiculously huge monetary judgment. They went even further with Vonage, and for a while actually ordered them not to sign up any new customers! This was all "punishment" of businesses who did not set out to do wrong and who weren't doing wrong, and it damaged us all. All those people who rely on Blackberries would have been seriously inconvenienced by a shutdown order. When Vonage isn't signing up new customers, they aren't paying taxes on that lost revenue. And we lose a choice, and consequently see higher prices.

The chilling effects extend very far. The entire system has become another weapon in the arsenals of big companies for squashing uppity little startup competitors, or troublesome researchers. True, sometimes the little guy scores a victory, but that's the exception. More common is the proxy battle where a little guy serves as a puppet, for the big corporation wary of being too blatant about their anti-competitive maneuvering, as Microsoft did with SCO. This outcome was not the intent of patent law.

There are also the inherent problems with patents, their adversarial, exclusive quality. It's a horrifying example of how to turn the noblest of occupations into a sorry cock fight. We have people fighting over whose candle was first to light. As to the other problems, where is the line between obvious and not obvious? While some ideas are clearly too weak and obvious to be deserving, the problem is that in general there is no way to tell. Even after the fact, years after some device and the entire area has vanished into the oblivion of obsolescence, it is still hard to tell. Then there's novelty. Can't tell that either. Scope? Another area to contend over. We shouldn't hand out punitive tools, make such divisive, confining decisions, especially when it is so very hard to tell who, if anyone, is deserving of punishment. The deterrent effect does not stop bad behavior but instead inhibits the exploration and adventurism that is so crucial to advancement because none of the principles can tell either what will lead to punishment, or to vicious bloody internecine fights that end with no winners.

Re:Junk patents

[Zigbigadoorlue]

Actually I think the answer is government non-intervention. The problem is rooted in the government granting these ridiculous patents and subsequently intervening with software development and progress by enforcing them. What is needed is to reduce government involvement by not allowing these patents.

How?

[Errol backfiring]

Forgive for being stupid, but exactly how could a patent help free software? A patent is by its very definition an "unfreedom": a restriction imposed by the holder. If I patent (part of) my software, I cannot call it free software without "disabling" that patent. And then again, I am only putting an unfreedom for somebody else to patent the same idea.

Re:Just a thought...

[H0p313ss]

Aren't open source license agreements also enforced by patent law?

Your task today it to look up the words "patent" and "copyright" and when you are done give us 100 words on why that was a stupid comment.

Misleading quote in TFA

[OhHellWithIt]

TFA says:

patent protection has promoted the free sharing of source code [...] which has fueled the explosive growth of open source software development.

Here's the quoted footnote from the Amicus brief:

See, e.g., In re Alappat, 33 F.3d 1526, 1571 (Fed. Cir. 1994) (Newman, J., concurring). Given the reality that software source code is human readable, and object code can be reverse engineered, it is difficult for software developers to resort to secrecy. Thus, without patent protection, the incentives to innovate in the field of software are significantly reduced. Patent protection has promoted the free sharing of source code on a patentee's terms -- which has fueled the explosive growth of open source software development.

The emphasis on "on a patentee's terms" is mine, and the phrase omitted from TFA is vital to the meaning of the sentence as a whole. I believe Adobe's release of the Portable Document Format specification is a case in point. Adobe made the specification available with the stipulation that it not be used to develop products that compete with Adobe's products. The open specification allowed the development of all kinds of open source tools (as well as closed-source tools) that make PDF much more useful to everyone, yet Adobe is protected from having its development investment and future business stolen.

How Free Software is 'Weaponized'

[mpapet]

Classic example of how economic interests take an inherently good thing (Free software) and weaponize it.

IBM couldn't beat Microsoft, so they regrouped around Free software. Everyone still benefits. So far so good.

IBM is still evil though. Anyone old enough to remember when IBM PC *was* a personal computer can back me up on this.

I would argue that IBM is setting themselves up to be able to litigate competitors using Free software on the basis of patented processes inside the code. Sure, the software can be freely distributed, but if you eat into IBM's business, they will litigate the process patents.

Hence the need to conflate Patents and Free software.

Someone please provide some contrary arguments.

does IBM even know their lawyers did this?

[poetmatt]

They actively employ people to use open source, and foster it's development, and yet they are supporting patents? Am I missing something in that general concept?

I mean what about employing people to support open office and lotus symphony and all that, which is all expressly supported by IBM?

over-the-top exaggeration

[prgrmr]

Software is the means by which we use ourcomputers to do word processing, send email and surf the Web; it enables our cellphones to connect to wireless networks; it allows air traffic controllers to safely schedule the arrival and departure of flights; and it permits physicians to diagnose and treat illnesses. Software is, in short, a fundamental, and increasingly indispensable, technological innovation.

Not quite. Software may assist, expedite, or allow, but it certainly does not "permit" a physician to do his job, as he already had that permission prior to the use of any software-driven medical device. Also, if my cell phone bricks, it may be an inconvenience, but it's not indispensable, as I still have other means and methods of communication available to me.

And that's just from the introduction. The rest of it is just a slanted and over-blown, and ultimately, misleading.

In the months since the Federal Circuit issued its opinion, and to IBMâ(TM)s great concern, a number of administrative and judicial decisions have rigidly applied the âoemachine or transformationâ test to questionâ"in some cases explicitlyâ"the patentability of software per se. Software technology is vital in addressing societyâ(TM)s most pressing challenges. IBM is committed to ensuring that such technology is and remains patentable.

(emphasis mine)

This is IBM's only real agenda here.

So where are all the examples then?

[TopherC]

Obviously EndSoftwarePatents needs specific examples of how companies are being hurt. So far I don't see any examples posted here. It depends on what is meant by "harmed". Does this mean they have lost a court case? Perhaps the best example is IBM's own court expenses in the case brought against them by SCO. No, that was alleged copyright infringement, not patents. I guess a proper example is how the vfat filesystem in Linux has to dance around with short and long filenames. That's not on the list yet.

With copyrights, people loose productivity all the time by having to actively avoid looking at certain pieces of code for examples or ideas of good implementation. But with patents it's more of a sinister fear that any idea you come up with might be illegal to distribute, or "speak", because someone else might have patented it. You can't do anything about that other than live in fear, since there's no process in place to automatically avoid patent infringement. Maybe existing patent law could be argued as impinging on free speech! Okay I've rambled enough already.

Nerd Language and Lawyer Language

[MarkvW]

IBM's brief does not define "open source." The open source references in the brief are not supported by much in the way of reasoning or argument.

Here's what I think IBM is saying:

If we get a patent, we don't have to keep our source code secret any more--we can now disclose our code to everybody. That's open source!! The source becomes open when we put it in our patent materials! We still have a monopoly (because of the patent), and we can sell our monopoly product any way we want. But now the stuff is OPEN!! That's good for development . . ..

IBM is technically correct in using the term "open source" in this manner. "Open source" means different things to different people. It obviously means one thing to IBM and its lawyers and a different thing another to Stallman and the FreeBSD crowd.

IBM wants a world where it can lock up the use of its software completely (via patent), except for when it CHOOSES to open source it.

This bugs me. It seems to me that if I buy a computer, I ought to be able to freely express myself via algorithms that I independently discover. For example, if I discover a unique algorithm that enables me to very effectively conduct political speech with my computer, IBM shouldn't be able to foreclose me from using my computer (a communication device) in that manner.

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Comment removed based on user account deletion

Wrong way of going about it...

[Theaetetus]

EndSoftwarePatents, for its own amicus brief, is looking for help building a list of free software harmed by software patents, and a list of companies that distribute free software and are taxed by patent royalties."

Essentially, their argument hinges on the preamble of Art. 1, sec 8, clause 8 - "To promote the Progress of... useful Arts," and the claim that if software patents stifle innovation, then they're unconstitutional. Problem is, we're not dealing with a fundamental right or an equal protection argument, so the Court will use a rational basis test - could Congress have had a rational basis for passing 35 USC 101 and not excluding software patents? If so, it's constitutional. And the Court always defers to Congress on stuff like that. Asking the Supreme Court to add a software exclusion into Title 35 on a constitutionality argument would be asking them to be "activist judges". And that just isn't going to work.

Want to change the patent statute? Lobby Congress. They have full authority to do anything. There's not even a Constitutional requirement that patents exist - the clause merely gives Congress the power to enact patents, if they want to. But they don't have to. They could outlaw all patents tomorrow and that would be Constitutional (caveat - may have a due process issue for the next 20 years over people who filed for patents already, but that's a separate issue).

Re:Wrong way of going about it...

[russotto]

Want to change the patent statute? Lobby Congress.

Thank you Marie Antoinette.

Re:Wrong: "Open Source" is well-defined

[MarkvW]

Just because one person defined a term doesn't mean that all people have to use the term in that way--especially lawyers writing legal briefs. Lawyers twist meaning. That's what's going on here. IBM wants to enlist the cachet of "open source" in aid of its argument. It's as simple as that.

Think about who the IBM lawyer is writing for: The lawyer is writing for the US Supreme Court. Do you think that the Supreme Court will accept the doctrine that the Slashdot meaning of "open source" is the meaning that the Supreme Court must adopt? The definition of "open source" is flat-out fair game right now, and if you assume otherwise you're just a zealot or fanboi.

I'm suggesting that IBM is using the term in a manner different from that used by the FSF/FreeBSD people. The FSF/FreeBSD people need to take that context into account when they frame their argument against IBM's argument.

Anybody remember GIF?

[northernboy]

I seem to remember in the early days of the web, there was a graphics format called GIF. Somebody like Unisys held a patent on the format, but initially didn't seem to care that most Web users didn't realize there was a patent. Then, one day, Unisys woke up, changed their attitude and announced that licenses would be needed from now on - several thousand dollars? Almost overnight, PNG was born. So, I guess in a sense, IBM has a point - patents lead to open source development. However, they neglect to mention that in cases like ReportLab (makes a Free/Paid Support PDF generator library in Python) a sudden change in licensing policy might result in innovation at the expense of existing innovators.

Patents are a valuable part of a thriving commercial system, and there are obvious benefits from patent law. But I think there are also significant benefits from patent-free zones. The trick is to figure out how to maintain the balance to ensure fairness, and enable benefits from both patented innovation and patent-free innovation.

misplaced arguments

[macraig]

"Would libpng have been written, if not for the LZW patent? How about all of xiph's codecs? We wouldn't have Vorbis if it weren't for the MP3 patents.

Lemme fix that for ya:

If not for the LZW patent, libpng would never have been needed to be developed. Were it not for the MP3 patents, we wouldn't have needed Vorbis.

Necessity might be the mother of all invention, but in this case it was artificial necessity. The inventions were only necessary to get around the brick walls created by the patents. Tear down the unnatural brick walls, and the innovation could have focused on incrementally improving those existing techniques instead rather than essentially reinventing the wheel just to bypass them.

"Open Source" is well-defined by USG.

[dwheeler]

Sure, some lawyers twist the meaning of words... so let's call them on it. But the U.S. government (USG) already has an official definition of "open source software", and it is NOT "you can read it". Office of Management and Budget (OMB) M-04-16 defines the term "open source software", saying that "Open Source Softwareâ(TM)s source code is widely available so it may be used, copied, modified, and redistributed". It's really the "Free Software Definition", but the OSI definition and the Free Software Definition are very, very, very close in practice. And that OMB memo is an official document.

IBM makes piles of money from patents, so no one should be surprised that IBM is for getting more money. But that does not mean it is good for the country. What's more, the Supreme Court has NEVER held that software algorithms are patentable, and the U.S. experiment into software patents has shown that the Supremes were wiser than the patent lawyers. Whether they're willing to make that stick now or not is the big question.

It's not clear that the odds are great, but it would be great if someday the U.S. eliminated the madness of software patents.

Re:explosive

[TaoPhoenix]

More like the anger from patents fuels the manufacture and use of explosives.

Re: poster above you, I REALLY have to get around to my logical fallacy studies project, because this is another one.
Call it 25 technologies produced in anger working around patents, vs 2500 technologies if there was no patent in the way. I don't know the name for that one yet.

Patents are like Go stones. It only takes about 5 brilliantly spaced items to sink 360 squares of attempted growth.