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

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

[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).

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:Put's the lie to their open source claims

[sconeu]

IBM is on IBM's side.

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.

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

[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: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.

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

[spazdor]

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

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.

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[account_deleted]

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: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...

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.