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IBM's Supreme Court Brief Says That Patents Drive Free Software

timothy posted more than 4 years ago | from the corellation-is-not-causation dept.

IBM 284

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."

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284 comments

Easy enough (3, Funny)

T Murphy (1054674) | more than 4 years ago | (#29301071)

Spore, Crysis and Bioshock are all free, but got all kinds of bad press because some illegitimately-sold non-free copies included patented DRM software. If this DRM had nothing to do with these games I'd bet they would be a lot more popular.

Re:Easy enough (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#29301195)

Spore, Crysis and Bioshock are all free, but got all kinds of bad press because some illegitimately-sold non-free copies included patented DRM software. If this DRM had nothing to do with these games I'd bet they would be a lot more popular.

So you stole your copies of Spore, Crysis, and Bioshock? I just visited the Crysis homepage and could only download the demo. Please do tell how one can attain a free, non-stolen, copy of Crysis.

Re:Easy enough (1, Insightful)

Entropius (188861) | more than 4 years ago | (#29301223)

Pirate it.

Piracy is not theft.

If you want to say "a legal copy", then sure.

Re:Easy enough (0)

Anonymous Coward | more than 4 years ago | (#29301275)

Now now, he could have shoplifted the copies. Don't take away too much credit from the grandparent.

Re:Easy enough (0)

Anonymous Coward | more than 4 years ago | (#29301317)

Is this one of those "Whooosh!" things?

Re:Easy enough (1)

commodore64_love (1445365) | more than 4 years ago | (#29301389)

>>>Spore, Crysis and Bioshock are all free, but got all kinds of bad press because some illegitimately-sold non-free copies included patented DRM software.
>>>

This sentence confuses me. What are you talking about? Free? Non-free? DRM? Spore, Crysis, Bioshock? What do these things have to do with one another?

(crawls back under rock)

Re:Easy enough (1)

T Murphy (1054674) | more than 4 years ago | (#29301931)

The games are pirated (free) and often hated here due to the DRM (assumed patented), so I was making a joke along those lines. I guess a mod that didn't get it found it before mods that do saw it (maybe it's not a good enough joke to mod up though). On-topic it is a commentary on how the patents and (related) DRM burden the very programs they are attached to, by some views, as opposed to the patented software only hurting free and non-patented software. I'll hold off on ranting how "I don't get it" doesn't make a comment offtopic.

Put's the lie to their open source claims (3, Insightful)

bitemykarma (1515895) | more than 4 years ago | (#29301087)

software patents 'fueled the explosive growth of open source software development

I guess we know which side IBM is on. Too bad.

Re:Put's the lie to their open source claims (1)

Verdatum (1257828) | more than 4 years ago | (#29301143)

Big Blue has been a profit driven beast for over 50 years. They used to scold employees for not using garters to hold up their socks. I can't imagine any universe where IBM was on any other side.

Re:Put's the lie to their open source claims (1)

HanzoSpam (713251) | more than 4 years ago | (#29301685)

Anyone that hasn't figured out that IBM is just plain evil by this time probably never will. This is not a company you want to turn your back on.

Re:Put's the lie to their open source claims (1)

noundi (1044080) | more than 4 years ago | (#29301927)

Anyone that hasn't figured out that IBM is just plain evil by this time probably never will. This is not a company you want to turn your back on.

Would you stop fucking using the word "evil" already? There's nothing of substance in such claims. No corporation is "evil", and "evil" is just a matter of what side you're on. What IBM just did is called trolling, and there is nothing "evil" about maximizing profit. There is no corporation on earth which wouldn't do the same thing, given the opportunity and given that it would actually be considered as truth, hence generate revenue. Also never turn your back on any corporation, no matter how many patents they have or charities they've handed out, for their end purpose is always one thing: generating maximum profit.

Re:Put's the lie to their open source claims (1)

I3Tacos (1630573) | more than 4 years ago | (#29302061)

I guess we know which side IBM is on. Too bad.

Anyone who has heard anything about IBM in the last 80 years has known what apparently you didn't know until today.

Friend or foe (1)

shutdown -p now (807394) | more than 4 years ago | (#29301105)

So, is IBM still a "friend of Open Source" today - a sentiment that was very much popular on /. in the wake of SCO lawsuit? Or not anymore?

Re:Friend or foe (1)

Jawn98685 (687784) | more than 4 years ago | (#29301141)

So, is IBM still a "friend of Open Source" today - a sentiment that was very much popular on /. in the wake of SCO lawsuit? Or not anymore?

Depends. How is IBM's relationship with Microsoft this week? Enemy of my enemy, and all that.

proper use of the word "patent" (4, Insightful)

presidenteloco (659168) | more than 4 years ago | (#29301111)

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."

Re:proper use of the word "patent" (1, Interesting)

Anonymous Coward | more than 4 years ago | (#29301219)

"I use the reflections off girls' patent leather shoes to look up their skirts."

Re:proper use of the word "patent" (1)

commodore64_love (1445365) | more than 4 years ago | (#29301435)

"This is patent leather."
"These are patent shoes."
"This is a polyester leisure suit."

"This is a disco where I score patent chicks."

WTF IBM (5, Interesting)

Microlith (54737) | more than 4 years ago | (#29301121)

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 (1)

wizardforce (1005805) | more than 4 years ago | (#29301359)

IBM has a lot to gain from making the claim- that doesn't mean that they're stupid so much as acting in their own interests. They have roughly 10,000 patents in their nuclear arsenal to defend after all.

Re:WTF IBM (5, Insightful)

Sloppy (14984) | more than 4 years ago | (#29301497)

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 (5, Insightful)

Microlith (54737) | more than 4 years ago | (#29301583)

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 (0)

Anonymous Coward | more than 4 years ago | (#29301601)

(Posting as AC in order not to undo my positive moderation) This is one of those posts that make Slashdot worthwhile to read. Thank you, sir.

Re:WTF IBM (4, Interesting)

camperdave (969942) | more than 4 years ago | (#29301627)

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 (0)

Anonymous Coward | more than 4 years ago | (#29302073)

Uh, yeah. That's kind of how they are supposed to promote the sciences, i.e., by forcing design-arounds.

Re:WTF IBM (1)

camperdave (969942) | more than 4 years ago | (#29302389)

Uh, yeah. That's kind of how they are supposed to promote the sciences, i.e., by forcing design-arounds.

Not as far as I understand it. The idea is to give the inventor a limited time monopoly to profit from their invention. This profit is meant to sustain the inventor while he or she produces more inventions.

Re:WTF IBM (1)

flibuste (523578) | more than 4 years ago | (#29301675)

Thanks for understanding the FA. Apparently many people here only read the misleading title...But I am not surprise.

Re:WTF IBM (1)

Jah-Wren Ryel (80510) | more than 4 years ago | (#29301819)

Thanks for understanding the FA. Apparently many people here only read the misleading title...But I am not surprise.

What other point do you think IBM has, except to mislead, by making that claim? This isn't a case of people not understanding the FA, its a case of them reacting to deliberately misleading wording that the FA is reporting on.

Re:WTF IBM (4, Interesting)

SanityInAnarchy (655584) | more than 4 years ago | (#29301749)

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 (1)

Absolut187 (816431) | more than 4 years ago | (#29301827)

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.

While I agree with your post, a patent is certainly *not* like a hurricane.
Hurricanes destroy value. Patents reallocate value to the inventor.

Thus, hurricanes have negative value. Patents - in the grand scheme - are at worst neutral, or even positive if you believe that they incentivize innovation which leads to higher efficiencies.

Re:WTF IBM (3, Informative)

Chris Mattern (191822) | more than 4 years ago | (#29302035)

While I agree with your post, a patent is certainly *not* like a hurricane.
Hurricanes destroy value. Patents reallocate value to the inventor.

Patents destroy value because the tarriff exacted by the inventor makes uneconomic uses that would otherwise be practical. Part of the value that is not destroyed is then reallocated to the inventor.

If the value created by encouraging the inventor to make the invention in the first place outweighs the destroyed value, then the patent is still a good thing. But once the invention is in existence, patents unquestionable destroy value.

Re:WTF IBM (2, Insightful)

T.E.D. (34228) | more than 4 years ago | (#29301981)

They wouldn't need to be written if not for those software patents. Instead, those developers would have spent their time writing something new. Very good example of how patents have retarded growth.

Re:WTF IBM (5, Insightful)

Abreu (173023) | more than 4 years ago | (#29302001)

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).

Re:WTF IBM (1)

dissy (172727) | more than 4 years ago | (#29302321)

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.

IBM never said that. The lies from the slashdot editor in the summary did say that, but they are just that, lies. (* A lie being different from 'being wrong' in that the editor knew IBM never said that. They read the article before we did after all. Knowingly giving false info is lying.)

What IBM said was that patents fueled the explosive growth of software under the patent holders terms.

That statement is less arguable, since it is basically true. That is the entire point of the patent system after all.

Is someone under the impression... (3, Insightful)

Snotman (767894) | more than 4 years ago | (#29301123)

that IBM is an altruistic company? Of course their comments will be self-serving as the number one patent submitter for years. They have mastered the game of patenting everything and they are not about to let that mountain of assets go.

Here's how it works: (5, Interesting)

Tablizer (95088) | more than 4 years ago | (#29301137)

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: (1)

wizardforce (1005805) | more than 4 years ago | (#29301381)

you forgot the ????. in this case it's give the software code as OSS and make money off of support and what not.

Re:Here's how it works: (4, Interesting)

Verdatum (1257828) | more than 4 years ago | (#29301481)

I love this idea. I propose a new slogan: "IBM, we're dicks so the good-guys can one-up us."

Re:Here's how it works: (1, Interesting)

Rolgar (556636) | more than 4 years ago | (#29301515)

Already posted this in another patent story today.

Instead of exclusively considering prior art, we should give the public a chance to respond to every patent application by being given a description of the device, and have an opportunity to develop an invention to the device. If the same or a very similar invention is developed by somebody within a year, then the patent is clearly obvious. If two people submit patent applications simultaneously (and it can be proven that they didn't copy each others' work), then neither person gets the patent. In these cases, we don't need the invention patented, because the point of the patent is give the knowledge of the patent to the public, after a period of time. If multiple people can develop the solution easily, then the device should be considered trivial. The patent examiners should be instructed that patents should only be given out in cases of clear innovation, if in doubt, the device should not be patented.

I really think we should only be handing out a few dozen (if that!!!) patents a year, and I think the above adjustments would move us a long way towards this.

Eric

Re:Here's how it works: (3, Insightful)

ajs (35943) | more than 4 years ago | (#29302019)

Instead of exclusively considering prior art, we should give the public a chance to respond to every patent application by being given a description of the device, and have an opportunity to develop an invention to the device.

This would break the patent system. The goal is not to reward people who solve seemingly intractable problems. The goal is to foster innovation by providing those who innovate with a lock in their inventions. Innovation is often accomplished in small steps. The paper clip was just a way of using wire to hold papers together. Given its description, you could make a paper clip, but the insight and innovation were rewarded with a patent.

When we discuss software patents, there's a new kind of problem. Software is, inherently, an expression of mathematics. Patenting math is tough to accept because you can't change the way math relates to the real world, so you're essentially patenting a piece of the known universe... which doesn't make a lot of sense.

Public key crypto is about the only thing I can see as a defense of patenting software. Here, you're patenting, not the math, but the application of the math to a specific problem domain to perform a task.

But the question is, how do you move from that to a patent system that can discern the difference and make the right call? Fundamentally, I think you need a review system which is populated by real academics and professionals or it simply can't work.

Re:Here's how it works: (1)

Absolut187 (816431) | more than 4 years ago | (#29302307)

Well I'm not saying IBM is right or wrong, but here is the full quote, with some context:

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.

Of course IBM would say that (1)

Stumbles (602007) | more than 4 years ago | (#29301217)

they have one of the largest patent portfolios of anyone. But their contention patents has fueled such growth in the land of open source is complete bullshit... and they know it.

Multimedia (4, Insightful)

Anonymous Coward | more than 4 years ago | (#29301245)

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.

Re:Multimedia (0)

Anonymous Coward | more than 4 years ago | (#29301523)

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.

Why is my porn on MP3? There may be other formats, but no one is using them.

Re:Multimedia (3, Insightful)

marcansoft (727665) | more than 4 years ago | (#29301535)

It worked for the better for MP3 (Vorbis) and GIF (PNG), but we're still struggling to get Theora up to h.264's level. I'm personally not sure it's ever going to *quite* happen if they restrict themselves from using patented h.264 features. Nevermind that Theora might infringe on some patents (in fact, it almost certainly does). You can only be sure that something infringes on a patent once you find it, but you'll never know whether there are any patents that cover a portion of your algorithm until they show up trying to sue you.

The only reason why patents "drive" development is by forcing people to develop a non-infringing alternative, and they tend to improve upon it to drive users away from the patented version. A lot less time would be wasted if the open source community could just improve upon existing standards without having to reinvent everything from scratch.

Re:Multimedia (1)

0x537461746943 (781157) | more than 4 years ago | (#29302373)

The problem becomes when good free open alternatives are available but the major players do not use them. For years I used to rip all my CDs to flac format and ogg format. I use the flac for my home entertainment playing through the PS3 and ogg I used for mobile/laptop playing. But of course I also had to start storing a third mp3 copy for devices that don't support ogg(which is most). I finally stopped using ogg because I need the mp3s more often. I now just keep flac and mp3.

PNG did catch on though. The proprietary police seemed to have let that slip through some how.

If Apple and Microsoft added ogg support I would convert back to it in a heartbeat. Since microsoft and apple want to encourage their own formats though they will never end up doing that. The only reason they allow mp3 is because it is the majority format right now. They would not want to give users yet another non-DRM alternative.

Re:Multimedia (1)

mmaniaci (1200061) | more than 4 years ago | (#29302413)

Try to think about what all the developers would have done instead of reinventing the wheel. And if GIF/MP3 were never patented, those alternatives could still exist. Stagnation, not progress, is the result of IP law. Progress should always, always, always be put before profits. I know thats a naive statement, but one day I believe we Humans, as a whole, will grow up.

Junk patents (4, Insightful)

Joce640k (829181) | more than 4 years ago | (#29301279)

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 [uspto.gov]

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 [uspto.gov]

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 [uspto.gov]

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 (5, Insightful)

mayko (1630637) | more than 4 years ago | (#29301433)

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 (2, Interesting)

nine-times (778537) | more than 4 years ago | (#29301439)

I'm not against *all* patents. Some algorithms have a serious amount of R&D and ingenuity behind them.

I actually find it a bit tough to come up with a good answer to the problem of patents. The first thing that popped into my head when I read about "free software harmed by software patents" is the whole thing about H264/Theora and the HTML 5 "video" tag [arstechnica.com].

Now I don't really know what's patented in H264, but I could imagine that it may well be some algorithms with a serious amount of R&D behind them. On the other hand, free software can't legally implement those codecs, and so Firefox can't support it. Free software also can't technically (AFAIK) implement MP3 or AAC encoders/decoders without paying a patent fee.

Now I suppose you could say, "so what?" Fair enough. Still, I have it stuck in my head somewhere that these are important standards that we need to be able to use freely in order to promote the arts and sciences (which is the whole point of patents, isn't it?).

Re:Junk patents (4, Insightful)

flymolo (28723) | more than 4 years ago | (#29301647)

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:Junk patents (1)

Twinbee (767046) | more than 4 years ago | (#29301467)

Wow, someone who recognizes that not all algorithms/software have an equal amount of work/insight put into them.

Re:Junk patents (1)

Grishnakh (216268) | more than 4 years ago | (#29301741)

Yes, there's definitely a big difference between the h264 patents with all the complicated video encoding they use, and the "one click" patent. I think there'd be a lot less complaining about software patents if they at least didn't allow the latter.

Re:Junk patents (1)

marcansoft (727665) | more than 4 years ago | (#29301579)

Oh, and not just software ones. I randomly stumbled upon a patent for connecting invidual buttons to microcontroller pins (that is, without matrixing them) to allow any arbitrary combination of buttons to be pressed without the need for isolation diodes. In other words, it's a patent for not using a technique. I should patent "a display device containing an individual connection for each display element" and sue everyone who makes a device with one or two discrete non-matrixed LEDs. Or maybe patent "a digital communications technique involving the use of an individual electric current transport device for each individual bit of data to be transferred" and sue everyone who doesn't use some form of serial encoding to transfer data.,

Re:Junk patents (1)

RazorSharp (1418697) | more than 4 years ago | (#29301693)

I think the main problem is that the policy makers don't understand technology the way they understand linguistics. I would never be able to copyright "The sky is blue" (I could trademark it though :) ), because it's an obvious statement and is cumbersome to state in any other way (everyone else would have to sound like Yoda, "Blue is the sky").

To someone who knows nothing of technology, an algorithm which paints a blue sky on a monitor seems to be incomprehensibly complex. From a logical standpoint it isn't. We just understand grammar so well we never think about the complexities of a basic sentence. The is an article, sky is a noun, is is a verb, and blue is a noun. The article specifies the subject noun, the is verb links the predicate noun to modify it. S is P. No one thinks about the inner workings of a sentence because it's the statement that matters.

When policy makers come to realize that algorithms are mathematical sentences rather than technological voodoo I think we'll see a lot less patent abuse. Like it's commonly understood that just because a song I wrote and copyrighted says "the sky is blue," doesn't mean I have exclusive rights to the sentence; it will be understood that basic algorithms aren't patentable. I know a lot of Slashdotters and all doom and gloom concerning the patent system, but I think the current abuse of the system is just a result of the immaturity of technology. I'm confident time will resolve the major issues. It does suck for right now, but for those being threatened by patent trolls I would recommend using Decartes and Newton and the like to your defense.

Re:Junk patents (2, Insightful)

bzipitidoo (647217) | more than 4 years ago | (#29302131)

We shouldn't hand out monopolies, no matter how much research went into an idea. We should value and compensate worthy efforts in other ways.

Squashing everyone else who might somehow possibly infringe is a very negative and expensive way to operate. Remember that the courts actually considered shutting down the Blackberry, before settling on a ridiculously huge monetary judgment. They went even further with Vonage, and for a while actually ordered them not to sign up any new customers! This was all "punishment" of businesses who did not set out to do wrong and who weren't doing wrong, and it damaged us all. All those people who rely on Blackberries would have been seriously inconvenienced by a shutdown order. When Vonage isn't signing up new customers, they aren't paying taxes on that lost revenue. And we lose a choice, and consequently see higher prices.

The chilling effects extend very far. The entire system has become another weapon in the arsenals of big companies for squashing uppity little startup competitors, or troublesome researchers. True, sometimes the little guy scores a victory, but that's the exception. More common is the proxy battle where a little guy serves as a puppet, for the big corporation wary of being too blatant about their anti-competitive maneuvering, as Microsoft did with SCO. This outcome was not the intent of patent law.

There are also the inherent problems with patents, their adversarial, exclusive quality. It's a horrifying example of how to turn the noblest of occupations into a sorry cock fight. We have people fighting over whose candle was first to light. As to the other problems, where is the line between obvious and not obvious? While some ideas are clearly too weak and obvious to be deserving, the problem is that in general there is no way to tell. Even after the fact, years after some device and the entire area has vanished into the oblivion of obsolescence, it is still hard to tell. Then there's novelty. Can't tell that either. Scope? Another area to contend over. We shouldn't hand out punitive tools, make such divisive, confining decisions, especially when it is so very hard to tell who, if anyone, is deserving of punishment. The deterrent effect does not stop bad behavior but instead inhibits the exploration and adventurism that is so crucial to advancement because none of the principles can tell either what will lead to punishment, or to vicious bloody internecine fights that end with no winners.

Re:Junk patents (1)

smartr (1035324) | more than 4 years ago | (#29302353)

Much of mathematics and law both have serious amounts of R&D devoted to them. Why shouldn't legal defenses be patentable? or literature... Why shouldn't we patent novel plot devices? Yes, plenty of software has incredible amounts of R&D behind it. Software patents seem to mean that all permutations of all heuristic algorithms and non perfect algorithms that are "new" are patentable. Heck, if you made a large enough mathematical discovery, you could patent a patent discovery "machine" that makes novel patentable software. I'm not saying those who put large amounts of time into R&D shouldn't be rewarded, but the market will reward these things without government interference in the name of patents... If patents are really out there to encourage individual inventors from larger entities with large production capacities (not a limitation in software), why are we letting companies own patents at all? Shouldn't the human inventor be the one holding the patent? Is it ever beneficial to let an exclusive deal involving patents be enforceable?

motivation (1)

bugi (8479) | more than 4 years ago | (#29301319)

I think they must be speaking to the motivation that patents on abstractions give us freedom-loving persons. So "fueled" with rage, I suppose?

After all, IBM would never dare oppose the Movement on this.

Slick Argument (1, Interesting)

Anonymous Coward | more than 4 years ago | (#29301363)

Without even reading the brief, you can tell how slick of an argument that is.

Basically, if software "inventions" were only ever covered by Copyright, then IBM and others would never release source code, because it would be too hard to police infringement when rivals companies release compiled products. Plus, Copyright protections would just be too narrow.

But Patents are more broad (though that's too simple terminology), and ostensibly allow you to uncover infringement without first gaining access to the private source code of the competitor, nor do Patents allow you to simply read the source code, then re-write from scratch in a modified manner, as mere Copyright protections would allow.

Of course, IBM is making many assumptions. But you could see how appealing such an argument would to someone already predisposed to accepting Software Patents.

Just a thought... (0, Troll)

humphrm (18130) | more than 4 years ago | (#29301365)

Aren't open source license agreements also enforced by patent law?

I'm just sayin'....

Re:Just a thought... (5, Funny)

H0p313ss (811249) | more than 4 years ago | (#29301399)

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:Just a thought... (1)

tecnico.hitos (1490201) | more than 4 years ago | (#29302077)

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.

And make them available under Creative Commons Attribution Non-Commercial No Derivatives.

How? (2, Interesting)

Errol backfiring (1280012) | more than 4 years ago | (#29301387)

Forgive for being stupid, but exactly how could a patent help free software? A patent is by its very definition an "unfreedom": a restriction imposed by the holder. If I patent (part of) my software, I cannot call it free software without "disabling" that patent. And then again, I am only putting an unfreedom for somebody else to patent the same idea.

Re:How? (1)

JSBiff (87824) | more than 4 years ago | (#29301805)

Aren't very real improvements sometimes the results of someone needing to 'get around' patents, to find another way to do something? Don't get me wrong, because I think that patents cause more problems then good, but I'm just sayin', sometimes, forcing people to find a different way to do things leads them to discover a better way to do it, yes?

Ohh, oh, just thought of an example (1)

JSBiff (87824) | more than 4 years ago | (#29301847)

A moment after posting my previous comment, I remembered PNG. PNG was developed, in large part, as a way to get around the patent claims on the GIF image format. Although, I suppose in that case, PNG might have been developed *anyhow*, because GIF had other drawbacks as well (one being, it was limited to 256 indexed colors). I suspect the (eventual) popularity of PNG had more to do with it being a *better* format than GIF, but the point still remains that part of the impetus for developing it in the first place, was a patent on GIF.

Re:Ohh, oh, just thought of an example (1)

I!heartU (708807) | more than 4 years ago | (#29302157)

And how many patents does the implementation of PNG infringe on? That is the problem with patents.

IF (1, Redundant)

DaMattster (977781) | more than 4 years ago | (#29301421)

IBM seriously expects me to believe the twisted logic that Software Patents help free software, then they need to hire another marketing team. The only way software patents could possibly help free software is if the Free Software Foundation and others like it patent software to ensure that it stays free. Guarranteed any patents sought by IBM are not altruistic. This is just one more example of greed, avarice, and lies from corporate America. IBM, Microsoft, Apple, and indeed any other corporations are friends to two things: money and investors. Anyone believing otherwise is naive and ignorant.

Re:IF (1)

flaming error (1041742) | more than 4 years ago | (#29301691)

IBM seriously expects me to believe the twisted logic that Software Patents help free software

No, IBM seriously expects the Supreme Court will believe the twisted logic.

Misleading quote in TFA (5, Insightful)

OhHellWithIt (756826) | more than 4 years ago | (#29301507)

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 [patentlyo.com]:

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.

Just call it jazz (0)

Anonymous Coward | more than 4 years ago | (#29301525)

Let the non-musicians patent the notes and symbols. If the instruments and software allow me to blend what I want, the non-musicians can spend all the time and money trying to find copycat patterns and sue. .....While I enjoy my jazz music!

How Free Software is 'Weaponized' (2, Interesting)

mpapet (761907) | more than 4 years ago | (#29301565)

Classic example of how economic interests take an inherently good thing (Free software) and weaponize it.

IBM couldn't beat Microsoft, so they regrouped around Free software. Everyone still benefits. So far so good.

IBM is still evil though. Anyone old enough to remember when IBM PC *was* a personal computer can back me up on this.

I would argue that IBM is setting themselves up to be able to litigate competitors using Free software on the basis of patented processes inside the code. Sure, the software can be freely distributed, but if you eat into IBM's business, they will litigate the process patents.

Hence the need to conflate Patents and Free software.

Someone please provide some contrary arguments.

Re:How Free Software is 'Weaponized' (1)

i.r.id10t (595143) | more than 4 years ago | (#29301779)

IBM also "opened" the specs and info on the PC so that clones could be made...

Re:How Free Software is 'Weaponized' (1)

Draek (916851) | more than 4 years ago | (#29302177)

IBM is still evil though. Anyone old enough to remember when IBM PC *was* a personal computer can back me up on this.

I'm old enough to remember that time, and until yesterday I would've disagreed with you and pointed at all the Open Source projects IBM collaborates with, if not created them outright.

Today, however...

Re:How Free Software is 'Weaponized' (1)

I3Tacos (1630573) | more than 4 years ago | (#29302327)

Because, you know, until today IBM never filed for a patent, never held a patent, and never filed a lawsuit against someone else for patent infringement. Oh and they never once created proprietary hardware or software. No, until today, they were the most GNU believing corporation on the face of the earth and let anyone and everyone have specs to all their hardware and released the source to ever program they ever wrote.

does IBM even know their lawyers did this? (2, Insightful)

poetmatt (793785) | more than 4 years ago | (#29301577)

They actively employ people to use open source, and foster it's development, and yet they are supporting patents? Am I missing something in that general concept?

I mean what about employing people to support open office and lotus symphony and all that, which is all expressly supported by IBM?

Re:does IBM even know their lawyers did this? (1)

I3Tacos (1630573) | more than 4 years ago | (#29302191)

They actively employ people to use open source, and foster it's development, and yet they are supporting patents? Am I missing something in that general concept?

Yes, you are missing something. They only employ people to work on Linux and other open source software so that it can be used as a means to sell more of their own proprietary hardware and software platforms. It's so cute that you actually thought they were contributing to open source programs out of altruism or because they were believers in the GNU manifesto rather than purely for their own profit gain. You do realize that probably 80% of their revenue, if not more, comes from proprietary hardware and software and the support of said platforms right?

I mean what about employing people to support open office and lotus symphony and all that, which is all expressly supported by IBM?

Because that provides them profit. If they didn't get any profit out of it they wouldn't employ anyone to work on open source software or to support it. IBM doesn't give two shits about the four freedoms or any other ideals of the FOSS movement.

over-the-top exaggeration (2, Interesting)

prgrmr (568806) | more than 4 years ago | (#29301613)

Software is the means by which we use ourcomputers to do word processing, send email and surf the Web; it enables our cellphones to connect to wireless networks; it allows air traffic controllers to safely schedule the arrival and departure of flights; and it permits physicians to diagnose and treat illnesses. Software is, in short, a fundamental, and increasingly indispensable, technological innovation.

Not quite. Software may assist, expedite, or allow, but it certainly does not "permit" a physician to do his job, as he already had that permission prior to the use of any software-driven medical device. Also, if my cell phone bricks, it may be an inconvenience, but it's not indispensable, as I still have other means and methods of communication available to me.

And that's just from the introduction. The rest of it is just a slanted and over-blown, and ultimately, misleading.

In the months since the Federal Circuit issued its opinion, and to IBMâ(TM)s great concern, a number of administrative and judicial decisions have rigidly applied the âoemachine or transformationâ test to questionâ"in some cases explicitlyâ"the patentability of software per se. Software technology is vital in addressing societyâ(TM)s most pressing challenges. IBM is committed to ensuring that such technology is and remains patentable.

(emphasis mine)

This is IBM's only real agenda here.

So where are all the examples then? (2, Insightful)

TopherC (412335) | more than 4 years ago | (#29301651)

Obviously EndSoftwarePatents needs specific examples of how companies are being hurt. So far I don't see any examples posted here. It depends on what is meant by "harmed". Does this mean they have lost a court case? Perhaps the best example is IBM's own court expenses in the case brought against them by SCO. No, that was alleged copyright infringement, not patents. I guess a proper example is how the vfat filesystem in Linux has to dance around with short and long filenames. That's not on the list yet.

With copyrights, people loose productivity all the time by having to actively avoid looking at certain pieces of code for examples or ideas of good implementation. But with patents it's more of a sinister fear that any idea you come up with might be illegal to distribute, or "speak", because someone else might have patented it. You can't do anything about that other than live in fear, since there's no process in place to automatically avoid patent infringement. Maybe existing patent law could be argued as impinging on free speech! Okay I've rambled enough already.

Re:So where are all the examples then? (1)

PineHall (206441) | more than 4 years ago | (#29301811)

Desktop Linux has been hurt by not being able to produce distributions that have patented audio and video codecs. Patents have prevented desktop Linux from just working. The average Joe wants to watch video and listen to music without having to install software that tells him this may be illegal.

Nerd Language and Lawyer Language (2, Insightful)

MarkvW (1037596) | more than 4 years ago | (#29301855)

IBM's brief does not define "open source." The open source references in the brief are not supported by much in the way of reasoning or argument.

Here's what I think IBM is saying:

If we get a patent, we don't have to keep our source code secret any more--we can now disclose our code to everybody. That's open source!! The source becomes open when we put it in our patent materials! We still have a monopoly (because of the patent), and we can sell our monopoly product any way we want. But now the stuff is OPEN!! That's good for development . . ..

IBM is technically correct in using the term "open source" in this manner. "Open source" means different things to different people. It obviously means one thing to IBM and its lawyers and a different thing another to Stallman and the FreeBSD crowd.

IBM wants a world where it can lock up the use of its software completely (via patent), except for when it CHOOSES to open source it.

This bugs me. It seems to me that if I buy a computer, I ought to be able to freely express myself via algorithms that I independently discover. For example, if I discover a unique algorithm that enables me to very effectively conduct political speech with my computer, IBM shouldn't be able to foreclose me from using my computer (a communication device) in that manner.

Wrong: "Open Source" is well-defined (1)

JSBiff (87824) | more than 4 years ago | (#29301907)

So wrong. The Term Open Source is not ambiguous. It was well defined when it was first used/coined, by the Open Source Initiative, a non-profit who is responsible for beginning the use of the term open source, and who maintains The Definition of Open Source [opensource.org].

The way you are claiming the term "Open Source" is being used is in clear contradiction to the definition. In fact, THE VERY FIRST LINE of the definition is:

"Open source doesn't just mean access to the source code. The distribution terms of open-source software must comply with the following criteria:"

Re:Wrong: "Open Source" is well-defined (3, Insightful)

MarkvW (1037596) | more than 4 years ago | (#29302385)

Just because one person defined a term doesn't mean that all people have to use the term in that way--especially lawyers writing legal briefs. Lawyers twist meaning. That's what's going on here. IBM wants to enlist the cachet of "open source" in aid of its argument. It's as simple as that.

Think about who the IBM lawyer is writing for: The lawyer is writing for the US Supreme Court. Do you think that the Supreme Court will accept the doctrine that the Slashdot meaning of "open source" is the meaning that the Supreme Court must adopt? The definition of "open source" is flat-out fair game right now, and if you assume otherwise you're just a zealot or fanboi.

I'm suggesting that IBM is using the term in a manner different from that used by the FSF/FreeBSD people. The FSF/FreeBSD people need to take that context into account when they frame their argument against IBM's argument.

Wrong way of going about it... (4, Insightful)

Theaetetus (590071) | more than 4 years ago | (#29302207)

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).

Too many lawyers (1, Interesting)

Anonymous Coward | more than 4 years ago | (#29302455)

Just make a camp, a "fun camp" and "happy camp" (citing Southpark movie) for all of these lawyers and America will be happy place again.

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