Slashdot Mirror
Trend: More Software Patents
The number of software patents issued this year increased to 22500,
while a new type of hardware predator has arisen: companies that increase their revenue by patent royalties. Indeed some companies focus on making patents on products they will never make, just to get IP-revenue. Neither is extortion out of the question ("Come here laddy, prove to me your not violating any of my 100 patents !"). Software engineers don't like it, and in one company had to be threatened to play the lawyers' game. Even though few companies currently use software patents offensively, at a $20,000 cost per patent, they could hurt Free Software badly, should they follow the hardware trend and do so.
You flunk history.
The industrial revolution started in about 1730 with the invention of the cotton mill in England. One of the most famous US inventions, the cotton gin was invented by Eli Whitney around 1790.
The way patents are used in the late 90's is nothing like the way patents have been used over the previous 200 years. We are now facing patents on life forms, patents on business models, and patents on algorithms.
Life forms in the form of plant patents have been around far longer than genetic engineeering. I don't know when the first plant patent was issued, but I bet it was in the 19th century to somebody like George Washington Carver.
As far as setting license fees at levels just short of the costs of litigation, this is nothing remarkably new. It was certainly common practice 25 years ago when I entered private industry.
And I think you overestimate the importance of patents in the technology business in the US. All of the current big software companies grew up in an environment where software patents didn't exist for practical purposes.
I think that is patently nonsense. The software industry was able to do without because opportunities were so huge and nothing was established at the start. Other industries live and die on patents. Biotech startups don't get funding without a patent review. Large consortia like Unipol are formed for the sole purpose of exploiting patent positions. Huge companies like UOP exist based on one thing - selling patented technology that they develop.
It isn't even anything like the patent system that we have had until the 90's.
It only appears that way to people who haven't studied the history of technology.
For defensive uses, it's much cheaper, faster, and pretty much as effective to use disclosure.
Recently I managed to get my name taken off of a software patent application my company is paying for.
It surprises me that you could this. A patent must list all the inventors to be valid.
So? The fact that patents support large consortia and oligopolies is not intrinsically an argument in their favor.
In fact, many people would argue that patents lead to a concentration of power in large companies and consortia, and that that is, in fact, an overall undesirable outcome; to many it appears that a vibrant, innovative free market economy depends on the existence a large number of nimble, small players, not a few lumbering giants locked up in huge consortia.
It's pretty obvious that in the presence of patents, rational economic agents will take advantage of them (and, hence, investors will require them). That says nothing about the economic or social desirability of patent protection.
Life forms in the form of plant patents have been around far longer than genetic engineeering. I don't know when the first plant patent was issued, but I bet it was in the 19th century to somebody like George Washington Carver.
The US Plant Patent Act was established in 1930 and had very limited scope (only asexual reproduction, among others); if you know of references to any earlier plant patent protection in the US, please let us know.
It only appears that way to people who haven't studied the history of technology.
If you are implying that you have, why don't you start to apply some of that knowledge and experience to this discussion?
The problem with "spurious" patents is you'll need precedent in order to define what "spurious" really means.
The other problem with this is I can still grab up stupid patents, as long as it's cheaper for companies to pay me a pitance rather than try to challenge it in court.
Essentially what you're asking is for companies to take gambles that their huge court bills will be reimbursed when they win. This is a risky business at the very least. Who knows what a judge will think is logical and what isn't. Remember, most judges are not technologically savvy (my father is a Judge in Maricopa County, AZ (USA), and has little to no clue about computers/other technology).
The problem with opening the patent process up to the public is that you are exposing your idea. It behooves everyone else out there to shout down your patent idea, then try to beat you to market.
As to limiting the life of a patent, that's an interesting idea. It gives a company a chance to grab the market, while still allowing for competition down the road.
drudd
Venn ist das nurnstuck git und Slotermeyer? Ya! Beigerhund das oder die Flipperwaldt gersput!
It should be pretty easy to at least partially automate this process -- IBM is generously supplying the patents in electronic form and it should be possible to build a program that cross references the patent for relevant web pages. Just have your debunker check out a patent to work on and he gets a nice page of info already researched by the computer. Hopefully a group like this would also encourage the PTO to improve their own process of granting patents.
Just a thought...
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
It can't be[1], which is covered by copyright law. It can't be [2] or [3] because they are unpredictable in detail depending on the design of the compiler and its optimizers, the linker, etc. In fact, it seems to me that the top-level design is almost always impossible to deduce from the resultant binaries, particularly with OO languages. It can't be [4] because, as the department tag on the topic points out, algorithms are usually mathematical construct and as such is an inherent property of whatever mathematical system it falls out of, and is thus (I would think) unpatentable. It can't be [5] because that's just the purpose of the "invention," not the invention itself.
Have I missed something?
I get the feeling that what is needed here is a patent lawyer, with enough of a software background to understand what this is all about, challenging one or two of the more prominent software patents. If done with care, it could bring this whole evil legal edifice down on top of the corporations who built it.
And the brethren went away edified.
See what I mean? Patents cost MONEY. Money that people involved in OSS projects simply don't have to spend. So, what if some less-than-well-intentioned people with lots of money (say, around 100 billion for example :) ouch what a cheap shot...) start getting patents for things that are being developed as OSS projects? Can you even start to think about the ramifications of this? That's why software-patents-ARE-BAD(tm) and everyone should oppose them.
What can we do to prevent this? There have been a few ideas about making lots of prior art, but I believe there are more direct way to fight this possibility. The bigest one being internationalization of open source projects. It gets a LOT more expenciive to sue people if there are people in multiple countries working on a project. Plus, Joe GNU who gets a cease and desist letter can always continue the project.. just giving the credit to someone else.
Perhaps the EFF or some other somewhat international orginisation could host CVS servers in diffent countries. If a company harasses Joe then he just talks to the operator of a CVS server in a country which will make life difficult for the company and gets a numbered account with no ties to himself. We could also add a transport mechinism for CVS to allow you to connect to the CVS server WITHOUT it knowing where you were comming from. Now, the company needs a searh warent to see if the account login information is on his sytem and Joe can use a plausable deniability encryption System to make search warents useless (like SegFS). Hell, the patent ass wholes may stir up intrest in any project they attack, so there is NO WAY to prove that just because some anonymous person is contributing to the project means that Joe is.
I think Slashdot should adopt a policy of posting mirroring and contribution information whenever OSS project is (specifically) attacked with software patents. They know they are not going to make any money off of the guy, but the though that hundreds of geeks would suddenly take an interest in the guys project is probable enough to kep the layers at bay. I would be curious to know how many people have contributed to the Console Game Simulators because there interest was pirked by Nintendo's legal mess. (This is probable one of the best solutions)
Jeff
The Christian religion has been and still is the principal enemy of moral progress in the world. -- Bertrand Russell
So the rest of you can get by with just the zeroes.
Somehow software development flourished without patents for years, even building silicon valley. Still if you really want to have software pattents don't you think they should at least resemble patents in other areas? If you patent an invention you must provide blueprints. If my invention works better there is no infringment.
.au file over the Internet.
Provide source, if I can find a case that runs in fewer steps for my algorithm than yours then we have no infringement.
But I guess in the Free Market I should have to cut your lazy butt a check if I want to send an
An Object at rest CANNOT BE STOPPED! -The Evil Midnight Bomber What Bombs at Midnight
Just create a $10,000 fine for "spurious patents", and define spurious just
as vaguely as the USPTO defines valid software patents. This will put
the breaks on most companies (if, for example 1/3 of Microsoft's software
patents were found to be invalid, that would probably be enough to
cancel out profit from Office for a year!)
The other way to go, that a lot of people cite is just limiting the life
of a software patent to 3 years. I'd sign on to this, IF there were
a reasonable way to speed up the approval process.
One way to speed it up might be to open it up. Let everyone see every
submitted patent that has been past the first "does it fit the
required format, and did they pay up" pass. Do it over the Web, and
allow a Slashdot-like feedback. Only patents that don't get a bozo-alert
from the masses get sent on to the next stage (internal USPTO technical
review). Thus the next 200 people to submit "talking online" and
"window-shopping online" will be bounced in less time than it takes
to Slashdot a personal web-server into the ground.
This is kinda like the tort reform that was floating around capitol hill last year ...
Big companies can always manage to pay the fines, it's individuals and small groups who would find a 10K fine devistating. And there is no gaurentee that your patent application, no matter how well intended, won't get fined. And it's not like the patent process needs any help being totally inaccessable to the average individual.
- bridgette
Where do people get this stuff? Doesn't anyone have a clue as to how technology businesses in the US have operated for the past 200 years?
Dammit, For many years companies like Texas Instruments and UOP have gotten more of their profits by developing technologies and licensing them to other companies. Giant conglomerates like Unipol exist primarily to take advantage of patents developed in large consortia.
The idea that anything has changed in the hardware area over the past 20 years is ludicrous. The only thing that is different is that we have a new set of PHB's fresh out of Stanford Business School that need to be educated, and a bunch of impressionable journalists that have no education in this area.
Software patents are another ballgame altogether. The patent office is being far to lenient when it grants these things.
Please explain to me why the FSF, or any of a number of democratic open-source initiatives should not start patenting many of the advances made in the course of developing open source software. Any takers for starting up a new org to tackle this?
Life's a bitch but somebody's gotta do it.
Cellular is a fairly unimportant little cellular automata program.
;) ). It's fought with ideas, and sacrifices have to be made. If intellectual property is not to be become a ball and chain, if people are to retain the ability to work with their minds and retain control over their own ideas and clever inventions, it seems the only safe haven anymore is the hardcore free (libre) software side- the determination to produce ideas and add them to the shared hoard. If these ideas are in use and known to be in existence, matching ideas cannot be patented. If the ideas are unsung and never seen by anybody, then lawyers will have a relatively easy time raising doubt that a matching idea came first. Publicity is the friend of free software, the handmaiden of 'prior art'.
Staccato is a reminder program, which might have some ideas relating to intelligent input parsing somebody is trying to patent. It sets things up so entries in the info file are very easily done, with the 'API' extremely easy to master. I'm sure someone would try to patent that.
Sitebot is a particular method of keeping data files as plain text with a couple of easily added headers, and 'compiling' that into a website which can then be uploaded. If anybody means to patent a narrowly defined method for writing plaintext and having it read and turned into a web site with the same structure as the plaintext files and folders, Sitebot is prior art.
ROTSOS (Return of the Son of Spacewar) is the best yet, being a radically different approach to game engine design. It offers literally the ability to produce game 'maps' equivalent to data files billions of gigs in size, in fact the ability to have billions of worlds each with 'maps' (not all of which will be distinct, but for all practical purposes...). It requires that game map creation be an exploratory process rather than a creative process, a major innovation in map design IMHO as the person who came up with it after reading lots of stuff on AI and artificial life. Took some years to work out, and naturally I've had to produce flashy demos (mostly movies, others to come) to illustrate what's being done here.
What do all these software products have in common, from the trivial to the actually innovative?
They are _all_ Free Software under the GNU GPL. That is including ROTSOS, and I have every expectation that somebody else with ship a GPLed game before I can get one together. I understand that and approve of it. I also understand that I'm going to stay poor and won't get diddly from all this.
Then why on earth am I doing it?
Because I'm just another soldier in a different sort of war. This patent stuff is deadly serious, but it's not fought with guns (unless they are patentable
So.... STEAL MY SOFTWARE!!!! That's right- go grovel through its ugly depths for any ideas that might make your open source project take off! Grab anything you want! Be grateful or not, say nice things about what neat ideas I have or not- the only requirement is that it stay GPL. Take all the credit for stuff that I came up with, while releasing it as GPL! Because as long as somebody gets publicity for a GPLed idea or algorithm or program, as long as that idea is obviously prior art and not ripe for a patent, that means I get to keep using it. And if the ideas languish in obscurity, it's all the more likely that some clown will patent some broad notion, hire better lawyers and enjoin me from ever using the idea that was mine in the first place. I'm not kidding. Wittingly or not, this is war now.
Write GPLed software (that being the most hardcore of the licenses)! Get glaring publicity! Anybody who can, _please_ make sure as many ideas (broad or specific) are within the camp of 'free software, prior art' as possible. Because it's a real problem, a serious danger, and these people trying to fight it by staking out defensive patents are only compounding the problem.
Time to choose sides!
The pollution analogy suggests that one effective way of curbing patents may be to let vendors know that you are on to them and prefer to buy from the least serious offender.
For example, I consider Amazon's patent on one-click ordering a blatant attempt to increase the cost of doing business for other web merchants through a frivolous patent. I canceled my account, let them know about it, and will order elsewhere now.
You probably prefer buying from companies that try to keep your environment clean. Try to apply the same standard to your intellectual environment and avoid companies that pollute the patent space as much as possible.
So, without entering [yet] into the discussion of whether patents are a good idea (the system in general seems to mostly be working... I don't hear a lot of screaming about it in other industries, except drugs), in the case of a lot of software patents, it seems that the obviousness clause ought to be invoked.
People get patents for things like "storing digitized voice in a file system" or "conducting e-commerce with cookies and aitch-tee-tee-pee". It's insane! This stuff is obvious to any programmer, but apparently mystifying to the rest of the world. I mean, if you are going to give a patent on voicemail, give it to the guy who invented A/D or filesystems, but not the idea of using both: it's obvious.
In terms of some software patents, I don't know how to define it accurately, but public key encryption was a pretty good, non-obvious idea: seems as worthy of patent as anything. I think we need to keep going back to the basic question: does allowing the patent holder a temporary monopoly encourage more good in the world by stimulating more R/D? People often cite this as a reason, but citing it is not the same as showing that it's true.
Ya know, patent intellectual property rights were not invented to stimulate R&D, in particular. Think back to manufacturing days: patenting was created to stimulate people sharing ideas. You, then and now, had the choice: invent a process and keep it a secret but have no protection against me-toos, or share the idea and be granted a temporary monopoly. The community as a whole wanted to stimulate more sharing because after the patent expired, then you'd see some extra innovation taking place. So, R&D stimulation was indirect, and not all for the reason of the monopoly rents (that's a fancy word for "real profit").
Software does not have this "I can keep it a secret" nature like manufacturing does (unless it runs on your server...) so that sort of creates a bigger incentive to patent in this arena, and probably calls for a different set of rules.
After we were approached by the University of Utah, though about a patent we had violated on free-form deformations, we decided to not do that anymore. It was a tough decision to make, because these videos were quite popular. Still, we couldn't risk our company's existence any longer, as we had no idea what patents we might be violating.
This FFD patent was a complete and utter surprise. We had attended a technical conference (Siggraph) where Sederberg presented the research, and had assumed that we could just implement the ideas in the paper. There was no notice given (or necessary) that there was a patent application in the works.
The worst thing is that there is absolutely no way to not get sandbagged by this. There is no way of knowing what patents are in process; and if you base your companies in-house development on things for which patents are later granted, you can be completely hosed.
The situation for open-source software, is, of course, immensely worse; as you have no way of keeping how you did things secret.
thad
I love Mondays. On a Monday, anything is possible.
Ok. How? How can you be sure that you are not violating patents? How can you even be 1% sure? How can you even pretend to be sure that you're not violating patents that are currently being processed?
I suppose the only way would be to base all of your algorithms on old (> 20 years) papers and to contribute nothing original on your own. This would be the only way to be certain.
Well, I suppose you could also go into space and nuke it from orbit, it's the only way to be sure
thad
I love Mondays. On a Monday, anything is possible.
I've spent quite a bit of time lately trying to get a patent (Don't kill me, its for hardware I designed), so I have a few thoughts on the whole process.
The patent office as it stands right now is so heavily biased towards large corporations that the only solution I can see is to rebuild it from scratch. Origionally, the inventor would write up a patent, (with free help from a patent examiner!) and submit it. It would be evaluated and either rejected or accepted. It cost about a hundred bucks.
Now, don't even THINK about trying to get a patent without a lawyer. Most likely, you'll get rejected, and if you manage to get accepted, you'll end up with a mostly worthless patent. If you're serious, and have a good, patentable idea, expect to pay about 3000 dollars for a decent patent.
However, if you're a large company, and have a staff of good lawyers, you can get just about anything patented, no matter how ridiculous. And companies usually try to price their licenses so that its cheaper to just submit to extortion than to fight their patent (which is so expensive that an individual shouldn't even consider it).
Large companies have their own patent portfolio, and if they need someone else's patent, they arrange a cross-licensing agreement, instead of paying fees, since they can most likely extort the other patent holders as well.
The current system has been manipulated to stratify the status quo, and protect slow moving large companys from small innovators. Write your congresscritter, not that'll it'll do any good.
The one problem with this argument is that If a product fails and a company sues another big one, they actually can get money out of it to cover any damages for the failure. It actually matters that they can get money out of it, and dicourage the other company from allowing that to happen again. Suing over patents is completely different, in that it's far more important to get rid of the other product and hold on to the monopoly than it is to actually get money from the violator. if they were to sue an OSS project over a patent, they wouldn't expect to actually get anything out of it. If it's over liability, however, they need to expect to get something out of suing.
I really don't agree with this line of thinking, but it's a reality that someone's going to face eventually.
If I have an idea, I have three choices:
- Sit on it until a big corp matches it and enjoins me from using it ever again
- Use it and risk being taken to court when the big corp figures out it can win purely because it can challenge my right to the idea, and I can't pay to fight it
- GPL the bugger, whereupon it's very unlikely that I personally can profit from the idea in the usual sense, but on the other hand it's very likely that the idea can't be taken away from me, ever, and _that_ might be worth something to me, independent of my desire to not let the corp own it.
I go for option 3, unhesitatingly. How about you?It's a tragedy of the contemporary imagination that it cannot concieve of any motivation other than profit - that it has actually come to believe that monetary gain is the only effective motivator.
A fairly clear debunking of this motivational claim is available here on the FSF site. I also refer you to Maslow's heirarchy of needs - short version is that when one is no longer anxious about one's material well being, one persues more elevated "needs," such as the need for creativity and intellectual expression. (Those institutions which depend on our drive for material accumulation thrive by using media to artificially maintain our sense of material anxiety, by linking it to social anxiety - ie, we won't be happy and shall lack social credibility without a New Car, New Shoes, the Right Deoderant, a Bigger Car, a Bigger House, etc.)
As less money is available to academic research environments, and our media culture continues to elevate the materially successful as heroes above the scientifically, culturally and intellectually successful, this whole "only profit will motivate people" line becomes a self fulfilling prophecy, unfortunately, and it's especially tragic to see it promulgated among those of us who a. have the least to fear as far as our material well-being is concerned and b. have the most to gain by valuing intellectual achievement for its own sake. The spiritual virus, our new sickness-unto-death, is among us.
The reasoning behind this was (to my knowledge) to encourage a firm to patend their inventions by giving them the right to use them for themselves for a number of years. To do this they must make the idea or process public. This means they have to share it with everyone. This is IMHO a Good Thing. When the patent expires the knowledge is given to the public for free use.
The Question here is why and when got the process of patents got twisted around and changed to something that is actually hindering progress and not helping it along.
In my opinion this has the following reasons:
1.) The whole patenting process is from a time when technical innovation was moving much slower. The timelines for patents are just to long these days and should be shortened. Or perhaps an evalution process should be used, so that patens will be given to the public domain after a firm made a decent return on investment from them. But this would perhaps lead to another insane buerocratic nightmare :-)
2.) The American patent laws do not have a clause for mandatory licensing. As far as i know this is the case for some European patent Laws. Under this Laws a license must be issued to any firm that applys for one. So a firm can make money by licensing the innovations, but cannot hoard innovations by keeping them for themselves.
3.) The American Government sees strict Patents laws as a way to ensure that dominace of American firms on the world market. There are a reported cases, when obviously stolen patents of non american firms appeared to to be patented in America just before this firms themselves applied for the international patent. As the American goverment once stated openly, it sees industrial espionage as a legimate way to ensure American dominance for key technologies. So the American legislature has a good reason (for them) not to change this laws.
I think the system itself is not completely without reason. But the implementation lends itself to misuse. I'm not sure if the system could be fixed, so big firm cannot use it to stiffle Open Software or competitors. Perhaps it is inherently flawed and should be thrown away. But this would lead to a severe cut in the exchange of ideas beetween commercial operating buissinesses. I dont like patents but i'm not sure, if we wouldn't go from bad to worse by dumping them.
At least there should be clear criteria what is allowed to patend and what not. Buying books with one click should not patentable, this only leads to misuse.
Oh, before i forget. Patents are already hampering the implementation of Free Software in a major field, audio compression. To my knowledge there was once a project under way to specify a new free audio standard that could replace mp3. The project was cancelled because most of the key technologies needed for good, lossy audio compression were already patented und could not be used.
Thomas
Currently I am working on for a DNA sequencing company that does similar things :) /. archives if you don't know what I'm talking about)
The company's primary focus is sequence a genome, find the function, if it's something 'commercially viable' than patent it and sell it to pharmacutical (I can't spell, i'm a programor) companies to develop cures and what not.
I was initially opposed to this, but after thinking about it for a while I figured that it's employing a lot of people, and saving a lot of people.
In most casees, ifthere is no commercial interest to do something, it will not get done (excluding Linux/OSS of course) -- that's the bottom line. If someone finds the cure for AIDS and patents it and does not grant licenses for the patent they will go under and wont afford the lawyer to enforce the patent rights anyway
Biomedical research is quite expensive and typically requires commercial support
Unfortunately as time goes on more and more patents are coming out -- instead of thinking, "hey there isn't an app that does xyz" we're being forced to think, "Hey -- is there a patent for xyz".
Limits should be placed on what you can patent -- patenting the idea for something should not be allowed, patenting the method should be. If you actually come up with something specifically unique than it's yours -- bottom line. But you should never be allowed to patent concepts and general idea's. (Like One click shopping for instance, check the
Patents are a great thing and a bad thing -- which seems to mirror the majority of things about our economy.
-= Making the world a better place =-
Dacels Jewelers can't be trusted.
I've been working for about five years on a "human language learning exchange" project, which turned into software, which recently turned (partly) into a pending u.s. patent. The basic "method" claimed ain't rocket science, but it did take a lot of error and even more trial to come up with. And trust me, it's really *sucked* working on the chicken side of the egg. I'd prefer not to get screwed in the end. Still, there are so many reasons *not* to file internet software patents, especially as churn churns churn faster:
* if the world wide web or linux were patented, who'd use 'em? free ideas are far more powerful.
* patents perpetuate outdated economic models, imposing artificial scarcity upon abundant bits.
* the Internet is transforming human societies much faster than local laws or terrestrial governments can adapt.
* (in fact, we might experience widespread institutional failure and soon.)
* not all jurisdictions recognize the international patents, so they're difficult to enforce on the web.
* it costs a fortune to file, prosecute manage and enforce patents in multiple the jursidictions of the world.
* patent laws discriminate against the poor: those who can't pay up can't legally "protect" innovations. (this ain't a big deal today, but wait 10 years when bandwidth is 60,000 times more plentiful, tripling yearly its reach)
* patent claims set a precedent, thus inviting future patents to attempt to monopolize derivative works.
* patents perpetuate ideals of marketplace "dominance". "partnership" may give rise much more valuable trade.
* patent impose an outdated a "zero sum" game. Learning grows more valuable as more people share it.
* trademarks are a far more "defense worthy", as they identify reputable brand (increasingly valuable as info gluts)
so.. why'd i file? believe me, i been on the fence.. (and sick to the stomach) but finally decided a patent pending might buy some time and keep some options open.. (besides, the thing took forever to write, and *damned* dull it was.. (no wonder the patent office is overwhelmed.. (have you ever read a patent?)))
Anyway, i'm 100% sure that, um.. "my" project should chaorganize and go open source, and aim to host a license selection forum real soon, but here's my question now:
there's been some talk of an Open Source Patent Pool to cross-license w/ the closed stuff.. (are there any "open" patents in this pipeline yet? (any chance at "first post"8P?)).. Anyone have more info?
[btw- IMO, open source patent pooling *might* be an effective "defensive" strategy, but remember the "enemy" has deeeep pockets. Better choose playing field wisely.. the way to outmaneuver *money* is increasingly to outsmart it..]
Patents can be overturned if it can be shown that the core idea was published before the patent application was filed. If you have anything you want to share, publish it.
This may allow someone in the future to site your work in order to overturn a patent.
Patent law is also being used very differently. Patent law is being used to tie up small startups in knots and patent licensing fees are calculated to be just below the cost where it would be profitable for a competitor to actually defend themselves in court. And the amount of work and the cost related to writing and applying for patents has increased enormously.
And I think you overestimate the importance of patents in the technology business in the US. All of the current big software companies grew up in an environment where software patents didn't exist for practical purposes. And even for hardware, most innovations weren't patented, and those that were often weren't enforced or enforcable (with a significant number of highly publicized exceptions, of course).
Maybe the way patents are used in the 90's is defensible from an economic and policy point of view (although I have grave doubts). But one thing is clear: even if the letter of the law hasn't changed much, from a practical point of view, this is nothing like the patent system we have had for the past 200 years. It isn't even anything like the patent system that we have had until the 90's. So, past successes and failures are not a guide to whether this system will work.
In this case you are talking about two completely different forms of litigation:
1. patent infringement
2. liability
First of, there's rarely anyone to sue ANYWHERE if something goes wrong even in commercial software....ever read those licensing agreements (EULAs and such)? They stop nothing short of saying "if you touch the floppy and it blows up in your face, we're not responsible".
The argument companies make against OSS isn't a legal one - they themselves do everything they can not to be liable for their software. The argument is basically that "if joe newbie can't open his word processor, he can't call some 1-800 number where a friendly tech support rep. will be with him shortly"
However, that's liability - who to sue if doggy dies. In this case, we're talking about patent infringement - you steal my idea, I sue you (as long as I paid tons of money to have it patented).
AFAIK, companies are free to sue ANY entity that is believed to have infringed on their patents. I think this poses a HUGE HUGE HUGE (did I mention...HUGE?) threat to OSS.
I'll say it again:
A FUCKING HUGE ASS THREAT
Why?
Scenario 1:
Ok, say IBM sues Intel for some patent infringement. Say that Intel actually came up with the idea themselves and that they would win if the case were taken to court. Intel has the resources to face such litigation...
Scenario 2:
IBM sues Joe GNU for some patent infringement. Joe GNU came up with the whole thing himself, after many hours of work, cases of Jolt Cola and packs of camel lights. Joe GNU however, can barely afford the rent of his crappy lower east side loft. What do you think will happen? He'll piss his pants at the first cease and desist letter that he gets from the legal dept. and promptly delete all of his code (well, at least remove it from public access - the ramifications of his code already being out there at one point is a whole different issue altogether).
See what I mean? Patents cost MONEY. Money that people involved in OSS projects simply don't have to spend. So, what if some less-than-well-intentioned people with lots of money (say, around 100 billion for example
peace,
dr0ne
The large software companies kep Free Software down, by pointing out that there's nobody to sue if something goes wrong.
This puts them in a bit of a bind. If they sue over patent infringement, then (win or lose), they let the genie out the bottle. They show to their customers that, indeed, free software -can- be sued, and is therefore a liable source of software - something THEIR lawyers insist on.
Do that, and they lose customers to OSS alternatives. BIG time. And there's no way in hell they are going to take that chance.
On the other hand, if they don't sue, they risk wasting their cash, they risk losing their patents and they risk losing their image. Can you imagine what the press would make of it? "MegaCorp, Inc, handed their multi-trillion dollar patent file to Dweebs, Inc, a bunch of long-haired computer nerds who's only claim to fame is being any good at programming."
The computer companies would get -SLAUGHTERED- by the press, AND their shareholders, if they simply bow down.
So what can they do? Nothing. There is no answer, at least, not in the direction they're going. Whatever their response, if an OSS group infringe their patents, they are going to be cut to pieces. Their only hope is that we don't.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
This ridiculous process of patenting 'business methods' is closely related (IMO) to the 'frivolous lawsuit' business method, which AFAIK remains unpatented. In both cases individuals or companies are trying to get money for nothing. The only difference is that in the cases of patenting, the applicant maintains a veneer of respectability, leaving people with the impression that s/he is an innovator.
Take a totally implausible example: say a company patents the process by which books are ordered by employing a single click. This is doubtless handy for those of us who order books that way, but is it patentable? Obviously it is.
Patents are in place to give individuals and companies the -- pardon me -- freedom to innovate, and patenting one-click widget ordering does nothing to help anyone except Amazon's shareholders.
About seven years ago, I ordered a book with a single click (so to speak). I phoned the bookshop, got cut off and (here's the good bit) hit (or 'clicked') redial. I then ordered the book, had my credit card charged, and waited for the book to arrive. I'm willing to testify to this if Forbidden Planet want to sue Amazon.
Q: What's the difference between a dead snake in the middle of the road, and a dead lawyer?
A: There's skid marks in front of the snake.
--Ben
Error #134: Can not find intellegent .sig
Another thing to remember is the current OSS backers. IBM has invested heavily in Linux in their battle with Microsoft and isn't about to let their new hope fall under the hand of litigation. We can hope that if some greedy organization comes along with the hope of extortion, IBM's extensive patent array could be used in OSS's defense. Something along the lines of: "Linux is violating your patent Foo? Well, your software is in violation of our patents X, Y, Z, Q and Bar."
But really, OSS doesn't have the massive money behind it to be extorted and the open nature of it helps it dodge patent problems quickly, IMHO.
Ita erat quando hic adveni.
Let's face it, folks -- there are two fundamental problems with software patents. One is that doing a search to avoid infringement is a horrible resource hog, and the other is that (a la Ted Sturgeon) 95% are junk.
Both of these problems are solvable, though, in the same sense that "with enough eyes all bugs are shallow." A distributed project to review software patents would go a short way to index and cross-reference the pests, but it could go a long way toward pointing out how silly most of them are. Most of these toads got past the Patent Office because the PO doesn't review against unpatented prior art, and until recently none of the prior art was patented.
So! The trick is to scan through the patent database for software patents. Sort them into categories. Apply an open review process which rates patents by impact (e.g., a patent on linked lists) and if possible identifies prior art.
With enough ludicrous examples we might even be able to enlist some press to shame Congress into dealing with the problem.
Lacking <sarcasm> tags,
There seems to much FUD floating around this topic, so I thought I'd toss in a few facts. I've filed for ten patents for my previous employer, and keep a close eye on the patent world.
1. $25K/patent. Patents are not cheap. It costs about $10K-$15K to disclose, draft, file, and sheppard a patent to conclusion. Add to this another $10K of time for people in your group to disclose and review the patent. Now, some would view getting ten patents at $25K each better than one engineer at $250K (loaded). Some patent firms are much better than others; mail me for some recommendations.
2. Don't patent it yourself.You can learn a lot from the Patent It Yourself book, but you probably won't make a good patent. You can save money by preparing for the disclosure and by drawing your own diagrams. Never opt for the various 'individual inventor' reduced fees; the clauses bite and kill your patent. Also, there are a bunch of rip-off places that will sign any NDA and talk about 'marketting'.
3. No patents = No Silicon Valley. Silicon valley exists because of patents. Otherwise, MS or Sun would keep a group of engineers on standby just to clone every interesting piece of software. Patents provide reasonable barriers to entry for small firms. Not everything is a matter of time to market.
4. Silly Patents. There are many silly patents out there, and more being filed all the time. The problem is the breakdown at the US Patent Office, mostly by the previous administrator. For a while, patent agents were being reviewed by how many patents they awarded, and so they awarded a lot of trash.
5. Defense. In software, patents are defensive for the most part. Cisco, for example, has publically promised never to sue. Patents keep others from quickly ripping you off, and from others trying to enforce patents against you. Xerox is the notable exception; the idiots keep thinking they can raise money from their portfolio. Remember, nothing a law firm does can keep you from being sued; it can only keep you from losing.
There's a lot more about patents. It's a religious issue, even among patent attorneys. Most feel that the patent office does an inconsistent job, and all patent attorneys I know of cheered when gene sequence patents were tossed.
Profit motivates invention.
I see even classic Slashdot is now pretty much unusable on dial up anymore.
It takes a lot of money to get something throught the patent process. You can easily spend on the order of 10's of thousands on lawyers and research (have to ensure that on one else patented it before you).
And it takes years to find out of you actually got the patent. And it could all be for nothing if someone else submitted the same thing a day before you did (you can't find out what patents are in the 2-3 year processing pipe, you can only find out about them after they're approved/rejected).
So big companies can afford to "invest" in an agressive patent policy (i.e. getting patents for things just to keep competitors from making them, even though the patent holder will never create the patented stuff). Meanwhile, any person or group who isn't totally rich could get nailed to the wall if they develop some cool software without heavy VC backing.
Does this mean that a future Carmack could have his Doom engine patented out from under him?
- bridgette
Oh, also there are some good critiques of intellectual property concepts from Linguistic/Marxist/Feminist perspectives on oppression, the the notion of intellectual property and that symbols such as TM and © are situated as oppressive constructs that are symbolically tied to oppression of women through notions of a master/slave (author/reader) dialectic.
Some thoughts and a cite: Modest-Witness@Second-Millennium.FemaleMan-Meets-O ncoMouse : feminism and technoscience by Donna Haraway. This is a fascinating read if you are interested in science, technology, and critical theory (particularly Marxism and Feminism). Sean
I've seen 2 successful bio-tech startups first hand. They simply wouldn't happen without patent protection. And yes, they did take on the big boys. Yes, there are some serious issues with patent abuse by the bigger companies. But no, killing patents won't help socially, economically, or medically. Fixing the legal/patent system is important though.
Tom Swiss | the infamous tms | my blog
You cannot wash away blood with blood
I think I'm pretty much for patents in most cases. The goal of most companies is to make money and keep a competitive edge. That means spending lots of money on R&D, and you don't want to make a discovery, get a product to market and then find that your largest competitor copying your work. That, i think, would cause the death of innovation in so many industries.
I think that there should be different classifications on patents, if that would be at all feasible. For instance, computer-related patents should only be allowed to be enforceable for 5-7 years (the 3 year life of any given computer, plus a couple years just to be generous)... That'd be enough, I think that a company could come up with something trully ingenious and make their money from it, but they'ed also have to work their buts off on their next product rather than going "Okay, now we've got 20 years of revenues from licensees"...
Patents on drugs are more difficult. We need drugs to live comfortably (and i'm not even talking about the recreational ones)... Should a company be allowed to patent it's discoveries? Yes. Should they be allowed to recoup their investments? Yes. If they couldn't, then they'ed all make the next diet drug, because those are a lot surer to bring back profits for the shareholders...
Perhaps the gov't should contract with the Pharmaceutical companies to develop drugs they feel they need developed. They could say, we need a new AIDS drug, start your bidding. Then the gov't would pay all associated costs for 5 or 7 years to develop the drug, and give the company 15% of the income derived from the drug.
That way, companies would still get their due, and consumers wouldn't get nearly as screwed as can be the case these days (ahem... UNISYS)
IANAL, but this article seems to be implying that the burden of proof rests upon the defendant in patent-violation cases. If this is the case, then it creates a curious set of conditions in relation to the openness of the product code base. Software that is open, and thus can be inspected freely, is far easier to defend against charges such as these than is the case with closed software. If the the code is kept proprietary, then the only means by which a developer can prove innocence is to allow a court-supervised inspection of the code. This causes all sorts of legal troubles, because typically the suing corporation has a vested interest in learning how the proprietary code works.
You may remember Microsoft's tiptoeing with the Caldera case (I think it was Caldera). They had to explain at length to the judge that opening their Windows code as a defense exhibit would endanger their business model. The code could only be examined after much legal wrangling and numerous NDAs had been signed. No doubt this is pretty costly - legal work doesn't come cheap.
By contrast, since the code of open-source projects is, by definition, open, we might expect fewer spurious suits of this kind levied against FSF/OSS products. Why press your luck suing somebody when you know quite plainly they have not violated your patent and that it would cost them nothing (apart from lawyer overhead) to demonstrate that fact. It's a financially losing proposition. The incentive to settle and let the patent pirate laugh its way to the bank is far smaller.
By the same token though, if you do open your source, you'd better be damn sure you really aren't violating any proprietary code.
-konstant
-konstant
Yes! We are all individuals! I'm not!