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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."
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.
Which only became a problem with the invention of patents in the first place and keeps getting worse.
http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm
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.
And since free software competing with yours is definitely an attack, why not attack? The very idea of patents, after all, is to encourage people to share their inventions by protecting them from competition in turn. That failed miserably, but can't be helped anymore, there's too many financial interests milking the current system for all its worth.
Anyway, the real defence is moving to a (software patent) free country.
Forget magic. Any technology distinguishable from divine power is insufficiently advanced.
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
And since free software competing with yours is definitely an attack, why not attack?
He answers that in the article, he says we need to make the OSS community the hardest, meanest thing possible to attack with a patent, and he explains a way to do it:
Every time an open source project gets sued, we need to find a workaround for the patent, and publicize it loudly, so anyone can use that workaround. The great thing is, after that, the suer would no longer be able to collect royalties from anyone for that patent, because they will just use the workaround. Suing the open source community will be equivalent to losing all potential revenue from your patent. No one will want to do it.
Qxe4
Every time an open source project gets sued, we need to find a workaround for the patent, and publicize it loudly, so anyone can use that workaround. The great thing is, after that, the suer would no longer be able to collect royalties from anyone for that patent, because they will just use the workaround.
Yeah, because that worked out so nice and easy with PNG vs GIF, didn't it?
Reading patents with an eye to identifying "Technologies" to use is an exercise in futility:
Most are stupidly obvious. The others written in leagalease.
Reading patents with an eye to identifying "technologies" to avoid is also an excercise in futility. Again, you need the mind of a lawyer, combined with the approach of a security researcher, to "see" the ways a patent could be exploited to somehow map to your own problem domain. That you were happily solving without resorting to the giant database of solutions to micro problems no one is interested in.
Next, theres just too damned many of them. If anyone took the time out to exhaustively read and analyse each patent enough to determine if the possibility for collision existed, well they wouldn't have a problem with patents as they'd never write any code.
Lastly, it takes courts a long time to determine if a particular product does conflict with a patent. This means theres a lot of grey area around the edges of a patent to determine if a particular approach is covered or not. Which means, of necessity, that, like Chinese ISPs, developers who read a patent would have to defensively eliminate huge swathes of potential solution space from their investigations, to avoid getting "too damned close".
You could have at least read the summary:
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.'
The reason why prior art is difficult to get right is explained in TFA: a patent consists of a number of (likely very long and complicated) interdependent claims which are likely to be interpreted quite narrowly. In order to work, a prior art defence has to exist for each and every one of those claims in the same interpretation as that intended when the patent was granted. So you have to go through the entire patent from beginning to end, look at each claim and think "Is there prior art for this? Is the prior art exactly the same idea or is it just roughly the same sort of thing? If the latter, that's a Very Bad Thing for the defence".
However, it's quite common for the patent to hinge on a handful of claims and if you can prove that you don't do just one of the independent claims, you're free.
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"
You make it sound like it's trivial to copy a patent worthy idea when it really isn't.
If an idea is interesting, it will be exceedingly difficult to copy the work that's rather the point.
If you have never read the relevant patents but have managed to "copy" the relevant invention
then that should nullify the patent right then and there because what is happening now is that
the patent holder is TRYING TO STEAL THE PRODUCT OF YOUR INTELLECT.
This the problem that is glossed over by the corporate toadies.
BS patents steal from everyone else. They steal from everyone else the ability to benefit from one's own labors and one's own intellect.
Patents are intentionally obtuse for "legal" reasons. Dealing with them for the most part is
more trouble than they are worth even if you only consider them "useful documentation" rather
than something to create defenses for.
A Pirate and a Puritan look the same on a balance sheet.
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.