Slashdot Mirror
Tridgell Recommends Reading Software Patents
H4x0r Jim Duggan writes "Andrew Tridgell rejected the common fears about triple damages: 'If you've got one lot of damages for patent infringement, what would happen to the project? It's dead. If it gets three lots of damages for patent infringement, what happens to the project? It's still dead.' Tridge then explains the right way to read a patent and build a legal defense: 'That first type of defence is really the one you want, it's called: non-infringement. And that is: "we don't do that. The patent says X, we don't do X, therefore go away, sue someone else, it's not relevant for us." That's the defence you want. [...] Next one, prior art: [...] Basically the argument is: somebody else did that before. It's a very, very tricky argument to get right. Extremely tricky, and it is the most common argument bandied about in the free software community. And if you see it in the primary defence against a patent, you should cringe because it is an extremely unsafe way of doing things.' There are even some tips in the talk specifically for Slashdotters."
In the same way that there is always a bigger fish.
And what you have to fear are overly broad patents and patent trolls.
Many patents are there not for suing the ass off the competition but to protect yourself from getting attacked.
If builders built buildings the way programmers wrote programs, then the first woodpecker would destroy civilization.
When I'm writing code, I don't have to worry about patent infringement, because the stuff isn't patentable. That way I can write code just like you write anything else; without looking over your shoulder.
Because it is as close as anyone is going to get as far as logical watertightness goes. Let P be "You are using a patented idea" and Q be "It's been done before". Enforcing a patent requires P.
Patent owner: "P is true of you." (Initial threat)
You: In fact Not-P is true of us.
Patent owner: OK, Not-P so we can't enforce patent.
vs
Patent owner: "P is true of you."
You: P is true but Q is true also. (You try to stop legal wrangling with Q.)
Patent owner: OK, P so we can try to enforce patent, regardless of Q. We'll try to show Not-Q.
The cost of searching for patents whenever you're doing something, anything, really, is a huge burden on any R&D department. By forbidding employees to look at patents, companies make then focus on the important stuff: making things.
To do list for Windows
I think that the best overall defense is if someone can take a case all the way to the supreme court, and argue that the threshold for obviousness
is way out of whack in the granting of software and business process patents.
The goal should be to get a test mandated by the supreme court along the lines of: If three out of four average 3rd year comp sci students
could design and code it up in a month, having heard only the requirements and not the design, then it's f***ing obvious to a competent practitioner
in the field, and should be dismissed.
Who knows. There may actually be algorithms clever enough to deserve patent protection for 5 years or so. But right now those would probably be
1 out of 100 of the patents granted, so the whole system is in total disrepute and it is the duty of a responsible practitioner in the field, as a protest,
to ignore and not view and thus not heed any USPTO software or business process patents, until they entirely revamp the standards and
throw out all patents granted under the existing broken standards.
Where are we going and why are we in a handbasket?
I see several problems with Tridgell's approach.
1st, his talk assumes patents cover only a specific, narrow implementations of ideas. And if some patent troll challenges you, all you have to do is show your idea is slightly different. He says we've gotten it all wrong, because there isn't any such thing as an overly broad patent. I don't know. Isn't the point of a patent to cover an idea, no matter how it is implemented? What is a business method patent, if not that? But if he's right, then RIM really blew it. All they had to do was show that NTP's patents don't cover exactly, precisely what they did and the way they did it. That should have been easy, because they came up with their own system. Somehow, I think that if it had been that easy, RIM would have found the way. Instead RIM tried what he strongly recommends against, that is, they tried to show prior art. There was just this minor problem that their legal team foolishly hoked up some fakery on that point.
2nd, he assumes too much about the methods of the patent trolls. Sure, it all comes down to making money, but the straightforward approach of attempting to collect license fees isn't the only way to use a patent to that end. There's the use of patents to stifle competition. That's why MS supported SCO, not to profit off of licensing fees for Linux, but to hurt Window's biggest competitor. Then there's the shakedown, as IBM once did to Sun over 7 patents, including the infamous "fat lines" one. Sun did exactly what Tridgell says to do. They demolished IBM's claims of infringement. And it didn't work because IBM pointed out that they have over 10000 other patents. "Do you really want us to go back to Armonk and find 7 patents you do infringe?" Well, maybe Sun shouldn't have caved. And, there's harassment of the sort SCO did. They knew they didn't have a case-- they were just making a big legal stink in hopes their victims would decide it's cheaper to buy them off than fight them in court. How did PJ tear SCO's case apart? The way Tridgell recommends? Yes, but that was only a part of it. There was also effort to throw the validity of SCO's patents into question by showing prior art.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
It is an example of a patent that is nothing more than pretty words that was not rejected in accordance with the patent code.
There is no proof, not even any viable evidence, that the described "invention" would function in any way at all, let alone that it would satisfy the claims made in the patent. We aren't even talking Marketability, we are talking "It just can't work".
If this sort of patent is being issued regularly by the patent office for the sake of collecting issuance fees, that would seem to indicate that the patent office itself is in habitual violation of the patent code for economic benefit.
In simpler days we would call such actions "corrupt".
Forget diamonds, copyright is forever.