I couldn't really get the gist of the article. Is it basically "the chinese got fucked over on patents, and will likely do so back"?
No, that's just a consequence. The gist is that the patent establishments are their own watchdogs, are running completely out of control, are simply optimising their own importance and completely disregarding economic consequences of their actions (for the simple reason that they are unaccountable), and that as long as this does not change, talking about the merits of software patents is "rearranging deck chairs on the Titanic".
The Chinese situation is simply that because the system produces so many garbage patents, this has allowed big companies to dupe the Chinese ("hey look, these patents are granted so they must be real good!"). And now that the Chinese found this out, they are not happy.
You'll almost never find "low level" software patents. The ones that you can find and which are enforced, are generally those that cover standards (e.g. on mp3, gif, jpeg).
The MP3, GIF, and JPEG files are not patented.
I did not say files (nor did I say compression, for that matter). I thought it was clear from my later example about gif encoding in GraphicConverter that I meant encoding.
It can be hard to detect, unless a violator is using those files in their particular implementation. There is nothing to say that the patented methods would be used in compatible files. Without reverse engineering the code or seeing the source code, it's plausibly deniable unless you have an oracle.
I don't think such a defense would be very plausible in general. And for example, closed source program writers are probably just as much threatened (if not more) than open source authors about the jpeg patents, because the holders are just in it for the money (and not to prevent others from using jpeg compression). See e.g. this message.
Quicktime/MOV files are not patented, however the Sorensen codec is. You can use the Sorensen codec in any compression, with any type of file. You can also use Quicktime with any type of file, but it only violates the patent when Sorensen is decoded
And that's a false analogy, because jpeg, mp3 or gif file only contains one type of compression (although png can use different pre-compression filters). They are not containers like mov, avi etc.
I am not sure if I made clear the potential scope of this predicament. If IBM licenses a patent for Eclipse, then it must be licensed for all derivative software, otherwise it ceases to be open source (per most definitions, eg. the Debian definition or the FSF definition). However, if it is licensed for open source use, then it can be ripped out and used in any other open source software.
The IBM public license does not contain such a provision. In fact, it says the inverse:
As a condition to exercising the rights and licenses granted hereunder, each Recipient hereby assumes sole responsibility to secure any other intellectual property rights needed, if any. For example, if a third party patent license is required to allow Recipient to distribute the Program, it is Recipient's responsibility to acquire that license before distributing the Program.
Now, when we start talking about Free Software, then the difficulty of getting approval can indeed increase even more.
The main reason I reacted to your post is that I'm part of FFII, and I'm sick of hearing the false mantra that software patents would only affect open source and that only open source people oppose software patents. In practice, today, they mainly affect small and medium-sized proprietary software companies, and not open source groups. The latter also have troubles of course (e.g., VLC recently had to drop support for an audio codec because of patent threats), but most patents are asserted where the money is, and as of yet that is (today) still predominantly in proprietary closed software.
The open source movement is certainly more vocal and informed about the problems regarding software patents, but one of the reasons is that a proprietary software company often doesn't think it's good business to yell "Hey, all these patents could make me go out of business", since clients to not like to buy software from such companies.
That's correct, although in Europe there are some exceptions for research. For example, you are allowed to use a patented process for research purposes. I don't know whether it extends to publishing programs that describe (= implement) patented algorithms though.
Most software patents do not require access to the source to determine whether or not they are infringed, and often not even to the application to determine whether or not they infringe. Most software patents monopolise very high level features. You'll almost never find "low level" software patents. The ones that you can find and which are enforced, are generally those that cover standards (e.g. on mp3, gif, jpeg).
Licensing capacity
I don't think IBM would have any problems getting a proper license for some patents infringed by e.g. Eclipse. So this is generally more a big vs small than open vs closed issue (though definitely not always, e.g. the shareware GraphicConverter was able to keep offering GIF encoding, because the author paid patent license fees to Compuserv).
And while we're at it, we'll do it under a license that has never been tested or sanctioned by a court of law. And, while we're at that, let us also continue to use technologies developed by independent research labs funded by the United States government!
Right, that doesn't increase risk of patent violation at all.
No, it indeed doesn't. You're missing the point that large companies do not check either whether what they do violates any software patents. The reasons are that such an activity would be prohibitively expensive, everything but watertight and open them up to treble damages in case of lawsuits.
They simply deal with patent problems as they are contacted by people who claim to own patents they infringe upon. They'll look at the patents, the demanded licence fee and at the company, and depending on the outcome they'll cross-license, pay a license fee or try to get the patent invalidated in a lawsuit (and possibly countersue the other company for patent infringement)
Those "solutions" are usually only viable for large companies though (regardless of whether it's about open or closed source), and not for small ones or individuals (again regardless of whether it's about open or closed source). In that sense the patent problems are indeed entirely independent of open vs closed source (who's going to attack IBM about patent infringements by Eclipse?), and only a matter of big vs small.
That's exactly what China is doing now to US and European companies that previously "fulfilled" contractual patent obligations by giving licenses on worthless patents to the Chinese.
Whether you try to sell it or use it for comercial purposes has little to do with the matter. What matters is whether you are distributing a description of the invention, or the invention itself.
Yes, obviously the problem is here that when it comes to software the task of drawing the line between the two is a real bitch. Maybe impossible.
Indeed. Depending on the language (e.g. C vs English) the description is the invention or not. It's one of the things that illustrates very well why patents are ill-suited to software. And possibly also one of the reasons they don't want source code in the patents, otherwise one patent description could infringe on another:)
IANAL, but the patent application seems to be pretty specific in saying that it's only in BASIC that they're trying to patent it, so a similar thing in C would likely be unaffected.
You are incorrect. Read claim 1. That's an independent claim. Everything that just fulfills those conditions infringes (if that claims is granted).
what happens if somebody sues a Chinese company. Can't China just claim that they will not honor any software patents on any software or on Linux specifically? It's not like they have a history of respecting other countries IP rights.
Listen to this speech (mp4 audio, 3.9 MiB) given by David Martin from M-CAM at the FFII conference on software patents from last week. His company is specialised in assessing the value of patent portfolios and technology transfers. Here's part of a transcript of his speech:
For the last five years, the United states has had a very active policy of actually the alleging the Chinese steal things. They steal things, they're bad people because they steal things. That's a very funny position, and it's couched in the "you don't respect intellectual property".
So what you have is, you know Chinese don't respect intellectual property, therefore they steal things, therefore because MPAA and RIAA say that they steal things, we have to all tell the masses "yes, in fact, they steal things".
There's a funny reality unfolding. The funny reality is that the Chinese are actually saying "I wonder if you can pull the pin out of the grenade and throw it back". And by that I mean this: what if the patents that are being asserted to be stolen or copied or infringed aren't actually worth the paper they're being printed on and what if the Chinese using their sovereign rights actually challenge those patents.
What would happen then? Well let's play that tape for a little bit more because I think at last calculation 43% of the US currency is actually owned by the Chinese, because we are very fond of debt. We're extremely fond of debt, so much so that we've sold our currency to the Chinese and they currently own our debt.
Now add to that the fact that they also have a lot of people and a lot of resources to call into question the due process of all bad patents. Guess what happens. Who wins? I'm gonna submit to you that everybody loses.
Listen to the rest of his speech for more. I guarantee you it'll be worth your while. For the record, he concludes his speech with
"If we don't actually confront the integrity problem, which says that we are stimulated to issue garbage (...), we're rearranging deck chairs on the Titanic."
Nice to hear that from someone in the field, isn't it?
Poland just recently decided against supporting software patents in the EU. Does that mean they will not respect other countries' patents on software or just that they will not go along with Europe issuing them?
Unlike in the US, the introduction (or not) of software patents in Europe is being handled via a legislative process (as opposed to purely via case law). For an overview of the legislative process, have a look here. The bottom line is that it's currently the turn of the European Council of Ministers, which has to reach a qualified majority for one text or another. The current text is hardcore pro-unlimited patentability.
Now Poland has confirmed they do not support that text (they weren't even formally asked after a break in a meeting in May where some fake compromise amendments were introduced, and where a political agreement was reached). Together with a change of voting weights that went into effect on 1st November (because of the expansion of the EU), this means there is no longer a qualified majority for the current text.
So it has nothing to do with not respecting other countries' patents. Besides, a patent is always only valid in the country it has been granted in, that's how pat
The nice thing is that several big businesses support Poland's decision (such as Sun, Novel and HP). From the parties present at the ministry meeting, more or less only Microsoft and a couple of patent lawyers were opposed (surprise).
Mother Earth is the property of every single organism on it, but humanity claimed control of nature till some degree. From there, its easy to argue You are taking a piece of "society" and claiming it for yourself.
The difference between Mother Earth and knowledge is that the former cannot be used at the same time by an unlimited number of people (tragedy of the commons), while the latter can be (and too much exclusions lead to a tragedy of the anti-commons there, as in "patent thickets").
The suggestion that European Union directives automatically propagate into a change of the EPC is wrong. In most cases, there is still the requirement of a diplomatic conference of all the EPO member states (and remember that this is not only the EU!).
That's true, but most of them are.
Indeed, the President of the EPO has expressed the intention to respect/follow European Union directives, but it should be clear that this is not at all an automatic procedure.
It should also be clear that the enforceability of software patents is entirely decided by European (and national) laws/directives, and not by the EPO (nor by their administrative council). As such, even if the EPO would not change it ways after a directive were approved, the enforceability of their granted patents would still depend on national laws.
Technically the author indeed wasn't correct, but in practice the outcome of the European directive will decide on this issue as far as Europe is concerned (even for the EPC countries not in the EU). It would simply not make sense for the EPO to keep granting patents which are explicitly not enforceable in most of most countries subscribed to the EPC.
One can try to improve things (such as pro-deo lawyers), but I don't think it's actually possible to completely root out this sort of unfairness.
That's true, despite all efforts the justice system still generally gives the advantage to the party with more money. That's why economists always talk about the high transaction costs of the patent system. It's one of the arguments for why it should not be introduced for sector described as a cottage industry, as it puts undue power in the hands of already quite powerful mega-corporations.
Those are reasons for why patents are only justifiable if a sector does not function (properly) without them, otherwise the free market should have its go. Additionally, thanks to network effects the IT-sector even already has a natural tendency towards (semi-)monopolies (e.g. Microsoft).
You'd get large companies spawning fake small companies and later buying them up (together with their patents), or simply taking licenses on those patents. And your proposal would not solve the litigation problem in any way. Have a look at the (later slides in) presentations given by Brian Kahin and Jim Bessen at the FFII conference from last week.
I've been arguing via email for a while with an IP-attorney, and his argument is basically that the problem is not with the patent system, but indeed with the users. If only those engineers and programmers would make use of all that knowledge embodied in the patent databases, we would live in a much better world. It's so sad that all that knowledge is sitting there untapped.
It seems to be impossible to convince certain people that patents simply are not fit to monpolise certain kinds of knowledge. It also seems some people are convinced of some "inherent Goodness" of the patent system, as if that's defined by some economic law or law of nature. It's very hard to argue with a person driving on the wrong side of road if he keeps claiming that it's everyone else who's on the wrong side...
The patent system is for everyone, not just the corporations.
In the fairy tales it is, yes. In reality, you need at least US$ 500k to even wage a patent infringement lawsuit. It is already the case today that the rich gobble up all patents, and now the rich are even getting together so they can gobble up even more patents.
1. It address the European patent policy in one line with the European Parliament. Clearly, the author is unaware of the complete separation between the European Patent Office and the European Union. Therefore, the European Union as such (and even less the European Parliament) can issue any decision with respect to the European Patent Convention.
Since all European patents have to be enforced in national courts under national laws which have to be in line with European directives, it does not make sense for the European Patent Office to grant patents which will obviously not be enforceable. In fact, a representative of the EPO said last Wednesday at a conference organised by the European Internet Foundation that whatever the outcome, the EPO will respect the directive by the EU.
I would suggest that all people who can't stop talking about the endless virtues of the patent system, listed to this speech (mp4 audio) given by David Martin from M-CAM at the FFII conference on software patents last week (especially from 2m40 in the clip). The full "audio proceedings" (and most slides) of the conference are linked from the conference page.
That person is specialised in figuring out the real value of patents (that's what his company does), and the picture he paints is not a pretty one. Not by a long shot. And it's confirmed by the talk given by Ian Lewis given afterwards (sorry, don't have an extract from that, you'll have to download the full Tuesday panel 3 discussion for that). He's from one of the largest UK insurance companies. He told the audience that every single insurer that offers "IP-insurance" is turning in a loss on those insurances, despite the exorbitant rates they charge.
There is something very rotten in patent land. And as far as the current European situation is concerned: extending the scope of patentability is not the solution.
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The Chinese situation is simply that because the system produces so many garbage patents, this has allowed big companies to dupe the Chinese ("hey look, these patents are granted so they must be real good!"). And now that the Chinese found this out, they are not happy.
The main reason I reacted to your post is that I'm part of FFII, and I'm sick of hearing the false mantra that software patents would only affect open source and that only open source people oppose software patents. In practice, today, they mainly affect small and medium-sized proprietary software companies, and not open source groups. The latter also have troubles of course (e.g., VLC recently had to drop support for an audio codec because of patent threats), but most patents are asserted where the money is, and as of yet that is (today) still predominantly in proprietary closed software.
The open source movement is certainly more vocal and informed about the problems regarding software patents, but one of the reasons is that a proprietary software company often doesn't think it's good business to yell "Hey, all these patents could make me go out of business", since clients to not like to buy software from such companies.
That's correct, although in Europe there are some exceptions for research. For example, you are allowed to use a patented process for research purposes. I don't know whether it extends to publishing programs that describe (= implement) patented algorithms though.
They simply deal with patent problems as they are contacted by people who claim to own patents they infringe upon. They'll look at the patents, the demanded licence fee and at the company, and depending on the outcome they'll cross-license, pay a license fee or try to get the patent invalidated in a lawsuit (and possibly countersue the other company for patent infringement)
Those "solutions" are usually only viable for large companies though (regardless of whether it's about open or closed source), and not for small ones or individuals (again regardless of whether it's about open or closed source). In that sense the patent problems are indeed entirely independent of open vs closed source (who's going to attack IBM about patent infringements by Eclipse?), and only a matter of big vs small.
That's exactly what China is doing now to US and European companies that previously "fulfilled" contractual patent obligations by giving licenses on worthless patents to the Chinese.
I've now also put a full transcript of his speech online.
Listen to this speech (mp4 audio, 3.9 MiB) given by David Martin from M-CAM at the FFII conference on software patents from last week. His company is specialised in assessing the value of patent portfolios and technology transfers. Here's part of a transcript of his speech:
Listen to the rest of his speech for more. I guarantee you it'll be worth your while. For the record, he concludes his speech with
Nice to hear that from someone in the field, isn't it?
Unlike in the US, the introduction (or not) of software patents in Europe is being handled via a legislative process (as opposed to purely via case law). For an overview of the legislative process, have a look here. The bottom line is that it's currently the turn of the European Council of Ministers, which has to reach a qualified majority for one text or another. The current text is hardcore pro-unlimited patentability.
Now Poland has confirmed they do not support that text (they weren't even formally asked after a break in a meeting in May where some fake compromise amendments were introduced, and where a political agreement was reached). Together with a change of voting weights that went into effect on 1st November (because of the expansion of the EU), this means there is no longer a qualified majority for the current text.
So it has nothing to do with not respecting other countries' patents. Besides, a patent is always only valid in the country it has been granted in, that's how pat
The nice thing is that several big businesses support Poland's decision (such as Sun, Novel and HP). From the parties present at the ministry meeting, more or less only Microsoft and a couple of patent lawyers were opposed (surprise).
Technically the author indeed wasn't correct, but in practice the outcome of the European directive will decide on this issue as far as Europe is concerned (even for the EPC countries not in the EU). It would simply not make sense for the EPO to keep granting patents which are explicitly not enforceable in most of most countries subscribed to the EPC.
Those are reasons for why patents are only justifiable if a sector does not function (properly) without them, otherwise the free market should have its go. Additionally, thanks to network effects the IT-sector even already has a natural tendency towards (semi-)monopolies (e.g. Microsoft).
You'd get large companies spawning fake small companies and later buying them up (together with their patents), or simply taking licenses on those patents. And your proposal would not solve the litigation problem in any way. Have a look at the (later slides in) presentations given by Brian Kahin and Jim Bessen at the FFII conference from last week.
I've been arguing via email for a while with an IP-attorney, and his argument is basically that the problem is not with the patent system, but indeed with the users. If only those engineers and programmers would make use of all that knowledge embodied in the patent databases, we would live in a much better world. It's so sad that all that knowledge is sitting there untapped.
It seems to be impossible to convince certain people that patents simply are not fit to monpolise certain kinds of knowledge. It also seems some people are convinced of some "inherent Goodness" of the patent system, as if that's defined by some economic law or law of nature. It's very hard to argue with a person driving on the wrong side of road if he keeps claiming that it's everyone else who's on the wrong side...
That person is specialised in figuring out the real value of patents (that's what his company does), and the picture he paints is not a pretty one. Not by a long shot. And it's confirmed by the talk given by Ian Lewis given afterwards (sorry, don't have an extract from that, you'll have to download the full Tuesday panel 3 discussion for that). He's from one of the largest UK insurance companies. He told the audience that every single insurer that offers "IP-insurance" is turning in a loss on those insurances, despite the exorbitant rates they charge.
There is something very rotten in patent land. And as far as the current European situation is concerned: extending the scope of patentability is not the solution.
Listen especially from 2m40 on, to learn why this whole "IP exportation" stuff is already backfiring tremendously today.
Glad to have been of service :)
At FFII, we've written a 4-page leaflet that debunks most claims made in the UKPTO brochure. You can find it here.
Home of the Underdogs to the rescue.