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Patents and the Penguin

CmdrTaco posted more than 10 years ago | from the something-to-think-about dept.

Linux 251

In an article entitled Patents and the Penguin, the non-partisan Alexis de Tocqueville Institute observes, "[i]t is not uncommon today for patent fights to erupt even between parties that have engaged in rigorous diligence. By contrast, open source developers and distributors do not engage in patent searches, thus, there is a real possibility we will see a major patent fight involving open source, sooner than later. The article also ominously warns: "IBM will be competing with large Linux-based developers and distributors themselves. As the deployment of Linux increases, it can be expected that IBM will be going head-to-head with its "friends" in the Linux community. It is unquestionable that the biggest irony of all will be when Big Blue resorts to using its war chest of patents against a "friend" in the Linux community." Even Homer Simpson can see this coming.

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fp (-1, Troll)

Anonymous Coward | more than 10 years ago | (#9115904)


Re:fp (-1, Offtopic)

hplasm (576983) | more than 10 years ago | (#9115919)


Re:fp (-1, Troll)

Anonymous Coward | more than 10 years ago | (#9115946)

Someone modded this "troll" mighty quick. Hard day at work, hey?? Freaking slack arse.

Open Source Apocalypse (4, Interesting)

tedgyz (515156) | more than 10 years ago | (#9115926)

Sadly, I believe this threat will ultimately make the SCO debacle pale in comparison.

Re:Open Source Apocalypse (2, Interesting)

Anonymous Coward | more than 10 years ago | (#9115983)

Beware the military industrial complex. With Nasa and the military using increasingly more and more Open Source apps, I can forsee ugly bed fellows between the likes of Big Blue and Uncle Sam. I must agree with the OS Apocalypse.

Re:Open Source Apocalypse (5, Insightful)

e5z8652 (528912) | more than 10 years ago | (#9116167)

I don't know if the military is much of a potential lawsuit source. There is a good chance that the military could leverage OSS mushroom style.

For example, until Theo pi##ed them off, the Air Force and Darpa were sending money to OpenBSD. Who's to say that they haven't since forked it to "DarpaBSD" and moved on?

The military does have programmers who know their stuff, and they can hire IBM as a contractor doing 'work for hire' that legally belongs to the U.S. Government, complete with NDAs & whiterooms.

They also have a secrecy == security mindset in many areas, so they may choose not to release their work. Even GPL software could dissapear into the system like this, since they would all be working under the umbrella of the U.S. Government and so therefore the work could be widely used in binary but never "distributed."

In that case, patent cases or other IP disputes would probably not be made public, as in order to make a case the military work would have to be published. And unless they publish their work (like SELinux), nobody else would really know enough about it to sue them. Given that Microsoft has already complained about the unfair competition provided by SELinux, I think publishing complete operating systems or adaptations of OSS operating systems would be rare.

Anyway - just a thought.

A few questions.. (4, Interesting)

Ckwop (707653) | more than 10 years ago | (#9116670)

Call my stupid.. but how exactly do you sue an open source project? I can understand suing Redhat or Suse.. but what about non-commericial distributions?
How could a judge award damages for lost revenue when you didn't make any money out of their idea anyway?


Re:Open Source Apocalypse (1)

saden1 (581102) | more than 10 years ago | (#9116175)

Leave Homer Simpson out of this! He is a comical genius if nothing else. As for Alexis de Tocqueville Institute, well they are just a laughingstock of an institute that wants to be taken seriously.

Re:Open Source Apocalypse (1, Insightful)

Anonymous Coward | more than 10 years ago | (#9116472)

You can't really compare this to the SCO case. The big difference is, someone holding a patent could actually have a valid case against an open source project, unless the patent could be invalidated. Sadly, even those patents that obviously never should've been granted in the first place are unlikely to be invalidated or reduced in scope.

and 2nd post too!!! (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#9115927)

nah nah na nah nah

Seems less likely (5, Insightful)

not_a_product_id (604278) | more than 10 years ago | (#9115935)

I thought the whole idea is that IBM are selling services for a product where the vast majority of the developers are NOT employed by IBM. Surely they wouldn't be stupid enough to piss about 95% of 'their' developers?

Re:Seems less likely (2, Interesting)

Tri0de (182282) | more than 10 years ago | (#9115989)

Correct. My understanding is that they were going to try to provide a 'talent agent' model; matching a developer with a client; building the hardware and supporting the OS would give them leverage and expertise to do so efficently. The goal (actually, the Holy Grail)of a lot of the smarter big companies is to co-opt the nimblness of small cos and individuals yet maintain the assets that go along with hugeness -capital and other resources.

Re:Seems less likely (5, Insightful)

Bronster (13157) | more than 10 years ago | (#9115994)

Surely they wouldn't be stupid enough to piss about 95% of 'their' developers?

Not to mention that if the patents cover anything they've distributed under the GPL then they're going to be in direct contridiction of:

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

So the only GPL products they could use their patents against are those that don't incorporate any source code from IBM - and even then the person distributing them could just link them against something IBM distributed to them and be safe.

Re:Seems less likely (3, Informative)

precize (83096) | more than 10 years ago | (#9116077)

If you look at the open source IBM distributes, you notice that very little of it is under the GPL. Most of IBM's distribution is under the CPL, which states in paragraph 2b (bolding mine):

Subject to the terms of this Agreement, each Contributor hereby grants Recipient a non-exclusive, worldwide, royalty-free patent license under Licensed Patents to make, use, sell, offer to sell, import and otherwise transfer the Contribution of such Contributor, if any, in source code and object code form. This patent license shall apply to the combination of the Contribution and the Program if, at the time the Contribution is added by the Contributor, such addition of the Contribution causes such combination to be covered by the Licensed Patents. The patent license shall not apply to any other combinations which include the Contribution. No hardware per se is licensed hereunder.

Re:Seems less likely (3, Insightful)

7-Vodka (195504) | more than 10 years ago | (#9116468)

you are kidding?
IBM distributes just about EVERY GPL Free Software application there is. They distribute full gnu/linux operating systems. That includes the kernel, the libraries, the applications etc. Most gnu/linux distros try to package every GPL software that's out there and IBM distributes more than one distro.

If IBM had any patents which could be applicable to ANY GPL software, that's now in the past.

Re:Seems less likely (4, Interesting)

HBI (604924) | more than 10 years ago | (#9115996)

It's very unlikely indeed. People who worry about this don't understand IBM very well. IBM makes money - they will continue to make money for time immemorial because their method of doing business is a time-tested and good one. They have little to no interest in Linux software as a product. They are interested in support and ancillary services for large corporate clients. They aren't going to change their focus because they know where the money is.

To them, OSS isn't a stick to beat Microsoft with. It's a means of ensuring their dominance in the delivery of computing power and corporate support. If everyone runs a generic OS, that benefits IBM, as long as that OS isn't proprietary.

Re:Seems less likely (2, Interesting)

drinkypoo (153816) | more than 10 years ago | (#9116487)

IBM hasn't made money by ignoring reality - that is a behavior which we see plenty of here on slashdot, though. The fact is that the world is changing and proprietary legacy software becomes more and more distasteful as linux becomes more and more powerful and runs on more computers. Programers have long embraced portions of assorted BSDs, such as a fellow who I read a comment by not long ago who had yanked the TCP/IP stack from OpenBSD and used it in something he was writing - all very legitimate and desirable from the standpoint of the BSD folks of course. But, many of them never really got into BSD as a lifestyle (that particular poster may have , but I don't know) but Linux is becoming THE THING in all sorts of disparate markets. Can it be long before its portability surpasses netbsd's?

OSS is both carrot and stick and as such we must be careful while wielding it. IBM may be interested in selling services, but they are very interested on selling them on top of Linux.

If there is any reason why IBM might not decide to trample all over Open Source versions of their products which contain IBM patents, it is that they won't feel that the others are any kind of competition. IBM has traditionally not seemed to have spent a lot of time and/or effort on patent litigation except defensively, probably because they invent shit and move on. By the time someone else is capable of making a strong showing of infringing on their patent, they've developed the next big thing.

Re:Seems less likely (0)

Anonymous Coward | more than 10 years ago | (#9116247)

We thought Caldera was an open source ally once too.

IBM and its patents (0)

Compact Dick (518888) | more than 10 years ago | (#9115945)

The day IBM uses its patent portfolio against the very community that helped it regain its status quo is the day when the U.S. patent system's foundation begins to crumble.

FOSS == obvious to skilled practitioner (3, Interesting)

Futurepower(R) (558542) | more than 10 years ago | (#9115949)

If it is in FOSS software, it is, by definition, obvious to someone who is skilled in the art. Therefore, it is not patentable.

Is this reasonable?

Re:FOSS == obvious to skilled practitioner (2, Insightful)

kalidasa (577403) | more than 10 years ago | (#9116062)

Nope. This is not reasonable. I don't think you have a very clear sense of what "obvious" means in this context.

Re:FOSS == obvious to skilled practitioner (1)

howlatthemoon (718490) | more than 10 years ago | (#9116080)

The patent office is giving out these patents left and right. If each one needs to have a post-award prior art or other challenge, it will be like bailing the Titanic with a thimble. Eventually the group who is fighting the patent, thus usually has no real dollars at stake is likely to tire first.

I still wonder if preemptive patents or a register of prior art might not be a good idea to fight fire with fire.

Re:FOSS == obvious to skilled practitioner (1)

RAMMS+EIN (578166) | more than 10 years ago | (#9116181)

That won't help you very much. Either the FOSS had it first, which makes it prior art, or it had it later, which means they could have copied it from the inventor. In the first case, the patent should not have been granted in the first place, in the latter case, I doubt the FOSS project stands a chance against the (supposedly wealthy) patent holder.

Re:FOSS == obvious to skilled practitioner (4, Insightful)

curator_thew (778098) | more than 10 years ago | (#9116192)

> Is this reasonable?

No, it has nothing to do with obviousness: it's about novelty. Quite simply, if the (so called) patented invention is already disclosed to the public, then a patent cannot be obtained for it.

In other words, the mere fact of committing code to a CVS repository already discloses it and thus whether it is obvious or not (i.e. "inventive") is irrelevant: no one can now patent it.

There are further complexities once you did deeper, but that's the basic rule.

IBM (5, Insightful)

myom (642275) | more than 10 years ago | (#9115952)

Just because IBM is on the "good" side for now, does not mean that Big Business will be the saviour and flag bearer for the Open Source movement for ever. Sooner or later O.S. will be screwed and we will see court cases vs IBM, HP etc will steamroll over smaller organisations and people in order to enforce software patents.

You underestimate the power... (2, Funny)

Anonymous Coward | more than 10 years ago | (#9116469)

of the (Big) Blue side.

Seems Unlikely (4, Informative)

supersnail (106701) | more than 10 years ago | (#9115954)

IBM has publicly expressed its disapproval of software patents, citing, among other things the cost of litigation.
IBM is the owner of a vast number of patents which provide substantial revenue for the company, however, the vast majosrity of these are hardware patents, and, even here IBM has been reluctant to get involved in litigation except fot the most blatent violations.

Re:Seems Unlikely (5, Interesting)

NighthawkFoo (16928) | more than 10 years ago | (#9116049)

IBM allows anyone to license any and/or all of its patents. All you have to do is give them a call and they will be more than happy to work out an agreement with you. The large patent portfolio is more of a defensive measure - if IBM is sued, it's more than likely that they can countersue with a few choice patent violations.

Bottom line - don't sue IBM unless you are sure you haven't infringed on ANY of their IP.

IBM disapproves software patients ???? (2, Informative)

modipodio (556587) | more than 10 years ago | (#9116252)

" IBM's patent department is actively lobbying Europe to legalise software patents. They have invested millions in fighting example cases to leading European lawcourts such as the EPO's Technical Boards of Appeal and the German Federal Court in order to soften and eventually remove European restrictions on patenting software. They have also threatened European politicians that IBM might close down local facilities if software patents are not legalised in Europe. IBM has also prevented the US government from conducting studies on the value of software patents for the national economy. In the wake of the Opensource hype, IBM's rhetoric has become relatively moderate, but nonetheless it is supported by real pressure. IBM has acquired approximately 1000 European software patents whose legal status is currently unclear. Given the great number of software patents in IBM's hands, IBM is one of the few software companies who may have a genuine interest in software patentability. Once software patents become assertable in Europe, an IBM tax of several billion EUR per year may be levied on European software companies."

For further reading go here :

Don't burst my bubble!! (2, Interesting)

WordODD (706788) | more than 10 years ago | (#9115955)

Without the push IBM has given Linux into the marketplace, the number of Linux users would be nowhere near where it is today. The possibility of a patent war is a nessecary evil, but hopefully it will never come to this. Remember the majority of money IBM is making from its Linix department is coming from the support it offers and the hardware Linux runs on, neither of these areas will be a focal point of any patent war.

You are on crack. (1)

superpulpsicle (533373) | more than 10 years ago | (#9116021)

The REAL conspiracy is IBM pushing linux forward half ass, just so they can preserve AIX.

They are going to sell a linux box here and there and make the linux world a go-go. Then confused marketing, law suits and tech drama will follow.

Re:You are on crack. (1)

WordODD (706788) | more than 10 years ago | (#9116099)

Half assed? Accorinding to IBM raked in $159.9 million in Linux-related sales, up from $75.6 million a year ago. The next closest compitition was HP with about $80M and then Dell with around $72M. Source Article [] I would say their interest is fairly well vested and considering that the sales numbers are only the tip of the iceberg of the Linux related revenue, IBM is in this for more then just preserving AIX.

What about "the rest of the world" (4, Insightful)

krunk7 (748055) | more than 10 years ago | (#9115957)

The power of open source lies in the fact that no one outside of western nations could give a rat's ass over who has what patents. If the west isn't careful they're going to sue themeselves into second place in the world economy......

Re:What about "the rest of the world" (3, Insightful)

Anonymous Coward | more than 10 years ago | (#9116035)

Intellectual property is a myth. You CANNOT and SHOULD not be able to own an idea. I am beginning to think that this may be a real turning point in civilization as we know it. Imagination and the associated innovation based off that imagination is what makes us able to do so many amazing things. Now, you can imagine building something to change the world, you can even imagine how to build it, but if someone has previously thought of it, you are in for a losing legal battle. This may be an extreme statment with regard to software patents, but the premise is frightening in either scenario. This is a legal restriction on free thought and development. Software patents are just one piece of the larger takeover.

MOD PARENT DOWN!!! (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#9116483)

This is yet another fine example of the typical unwashed pinko commie Slashbot groupthink. Mod fucking parent DOWN, asshats.

B. S. (4, Insightful)

Doesn't_Comment_Code (692510) | more than 10 years ago | (#9115958)

Alexis de Tocqueville was a jackass and the institute that bears his name doesn't seem much better.

IBM will be going head to head with Linux why? IBM makes money consulting and selling hardware. They say, "We have this great mainframe for $200,000 that runs Linux. It's fast, scalable and dependable." That is of great value to them. OS2 was no cash cow. That's why they've moved in the direction they have. That's why they're spending so much money to help develop Linux - it is GOOD for them.

Re:B. S. (1)

ClosedSource (238333) | more than 10 years ago | (#9116339)

IBM recently acquired Rational which will not have any impact on selling mainframes. IBM "consulting" mostly consists of advising you to buy IBM stuff. It's not a viable business on its own.

How soon they forget.... (5, Informative)

44BSD (701309) | more than 10 years ago | (#9115961)

Non-partisan, you say? I think not [] .

Re:How soon they forget.... (2, Funny)

harryjrsd (778693) | more than 10 years ago | (#9116031)

Yeah, my first reaction to seeing "non-partisan" in reference to a human was "yeah, like one exists"

/babies maybe...

Come again? (2, Redundant)

Cooper_007 (688308) | more than 10 years ago | (#9115964)

the non-partisan Alexis de Tocqueville Institute observes

Do you mean this very non-partisan intitute [] ?

FUD, plain and simple.

I don't need a pass to pass this pass!
- Groo The Wanderer -

Re:Come again? (4, Informative)

Doesn't_Comment_Code (692510) | more than 10 years ago | (#9116006)

Best information from Wired:

A Microsoft spokesman confirmed that Microsoft provides funding to the Alexis de Tocqueville Institution.
Microsoft did not respond to requests for comment on whether the company directly sponsored the debate paper. De Tocqueville Institute president Ken Brown and chairman Gregory Fossedal refused to comment on whether Microsoft sponsored the report.

Just one more independant review - my ass.

Re:Come again? (1)

Tarantolato (760537) | more than 10 years ago | (#9116189)

Half the links on the homepage are broken. The ones that do work lead you to a bunch of op-ed essays and recorded radio broadcasts, all attributed to about half a dozen names.

Open Patents (3, Insightful)

harrkev (623093) | more than 10 years ago | (#9115965)

OSS people need to file for patents, and lots of them.

Then, call them "Open patents." They are free for ANYBODY to use AS LONG AS they do not file any patent suits against open-source projects. This would create an interesting arms race. "We will use yours, but then you get to use ours. If you start a fight, we take our ball and go home." Of course, for this to work, there has to be a substantial body of open patents...

1, 2, 3 Plan (3, Informative)

Famatra (669740) | more than 10 years ago | (#9116072)

The plan should be:

1) Like you said, F/OSS organizations should file for their own patents that are freely available for all to use. I am unsure how this will be sponsored though since filing for a patent is nontrivially expensive.

2) Support PubPat [] in looking for prior art for the worse offending patents against free / open source software, and other patents that are harmful to society. A story [] from Groklaw [] about PubPat.

3) Try to get patent reform done including disallowing software patents, and have more patent examiners hired with actual experience so they can sniff out bogus claims.

Re:1, 2, 3 Plan (1)

sparcnut (775902) | more than 10 years ago | (#9116463)

The plan should be:

1) Like you said, F/OSS organizations should file for their own patents that are freely available for all to use. I am unsure how this will be sponsored though since filing for a patent is nontrivially expensive.

2) Support PubPat in looking for prior art for the worse offending patents against free / open source software, and other patents that are harmful to society. A story from Groklaw about PubPat.

3) Try to get patent reform done including disallowing software patents, and have more patent examiners hired with actual experience so they can sniff out bogus claims.

You seem to have missed one.

4) Profit!

Re:Open Patents (2, Insightful)

molarmass192 (608071) | more than 10 years ago | (#9116135)

Fantastic idea ... one small problem ... it costs $10K on average to prepare and file a patent in the US alone, so where is the money going to come from??? Beyond that, defending even a single patent in court would make that $10K seem like milk money. The only practical solution from a FOSS perspective is to abolish software / business method patents altogether, and that's a little like taking a steak away from a Rottweiler as it's chowing down on it. The silver lining is that the patent system is becoming increasing cumbersome so there's a very slim chance it will choke the economy so much that the US government will have no other option other than to abolish / reduce the lifespan of these patents altogether. So, maybe we'd be better off creating an "Open Lobbyist" project.

Re:Open Patents (0)

Anonymous Coward | more than 10 years ago | (#9116300)

Do you know how this $10K breaks down? What is the actual filing fee? If it is small, someone could work on a fill inthe blanks boiler-plate application and away we go.

Even if the patents aren't granted, it may gum up the system, which may be a good thing. I have not thought of that too much. Any comments?

A Nony Mouse

Re:Open Patents (3, Informative)

molarmass192 (608071) | more than 10 years ago | (#9116332)

Found this [] on Google ... looks like lawyer eat the biggest chunk with the USPTO taking in only about $500 of that $10K.

Re:Open Patents (3, Informative)

servoled (174239) | more than 10 years ago | (#9116356)

According to the FY2004 USPTO Fee Schedule [] it would cost $385 to file and then $665 at issuance assuming the patent issues. The filing and arguments could all be done pro se (i.e. without a lawyer) and the patent could be abandoned at the due date of the first issue fee. Grand total: $1050 per patent.

Defending against a lawsuit initiated by someone else would cost money no matter what, even if the OSS files for patents, but if they did it would give them more leverage. Defending your own patents is entirely optional.

Re:Open Patents (3, Insightful)

mjh (57755) | more than 10 years ago | (#9116161)

Of course, for this to work, there has to be a substantial body of open patents...

...and a substantial amount of money. Who's going to litigate the enforcement of "open patents"? How would that be financed?

Re:Open Patents (4, Insightful)

grahamm (8844) | more than 10 years ago | (#9116212)

OSS should not need to file patents. The objects of the patent system and OSS are quite similar - to put information on public view rather than kept as trade secrets (as the old guilds used to do). OSS publishes source code, so this should act as prior art and publication as far as patents are concerned. So that it should be impossible for anyone to obtain a patent on something that is already done by OSS. Therefore, there is no advantage (and as has already been noted, the cost of a patent is a disadvantage) in OSS obtaining any patents.

Re:Open Patents (3, Insightful)

harrkev (623093) | more than 10 years ago | (#9116361)

There WOULD be an advantage! If some lawyers who love Linux would step up to the plate and do this, then the advantage would be if company X sues XFree (for example) for patent infringement, then company X would loose all rights to use any OSS patents. If OSS has enough patents, then it would be a big stick to use, expecially if company X was using this technology in one of their other products.

This would be sort of like the USA/USSR arms race. If you shoot me, I shoot back and we both die.

Re:Open Patents (3, Insightful)

deck (201035) | more than 10 years ago | (#9116476)

I disagree. If an invention is published and someone files a patent on the same in less than a year after it is published they can get a patent on it. Very often scientific researchers get the patent applied for before their papers are published just for this reason.

My conclusion therefore is that OSS developers should be applying for patents. These patents could be used in a defensive manner if challenged by a proprietary, closed source developer (company).

Re:Open Patents (3, Informative)

FattMattP (86246) | more than 10 years ago | (#9116395)

Someone has already been working on this idea. See the Open Patents web site [] .

Re:Open Patents (2, Informative)

stealth.c (724419) | more than 10 years ago | (#9116643)

Except, according to the home page, the Open Patents website was last updated back in 2002. Looks abandoned. Maybe presenting the topic to some folks at Groklaw will bring the idea back into action.

Is this some kind of joke? (1, Troll)

tooloftheoligarchy (557158) | more than 10 years ago | (#9115970)

What the hell kind of half-ass "think tank" publishes a paper with two flagrant spelling errors ("hobbiest", presumably meaning "most hobby", and "eying") in the first two paragraphs?! Microsoft needs to invest in higher quality FUD.

Re:Is this some kind of joke? (2, Funny)

VanWEric (700062) | more than 10 years ago | (#9116033)

Corrrrect Spelling was patented by Clippy in '98. Using akurate spellering wood give a dirrect link between the FUD and the FUDders.

Re:Is this some kind of joke? (1)

smsp (736236) | more than 10 years ago | (#9116113)

(Score:0, Troll)

And apparently, he's got some mod points too.

Re:Is this some kind of joke? (1)

danknight (570145) | more than 10 years ago | (#9116228)

What the hell kind of half-ass "moderator" mods this comment troll ?!

The bad company (2, Interesting)

PhuckH34D (743521) | more than 10 years ago | (#9115972)

Well, IBM used to be the evil company before Microsoft, so... I think it is a good chance that IBM will do something like that.

This assertion is pretty stupid because of the GPL (5, Insightful)

Anonymous Coward | more than 10 years ago | (#9115979)

If they would have read the GPL it says that you license *all* your patents with that software for that software. So if IBM is distributing Linux it would have a pretty hard time suing any other Linux distributor or user over code that IBM has distributed under the GPL. It's pretty easy actually and one of the beauties of the designed in features of the GPL.

IIRC this wonderful institute has written some very controversial studies and analysis for Microsoft and other proprietary interest before. They can hardly be called neutral or non-partisan.


Re:This assertion is pretty stupid because of the (1)

mr i want to go home (610257) | more than 10 years ago | (#9116107)

You know, I never realised this.

You are totally right. This article is a non-issue.

Only the GPL and LGPL so-called "viral" licenses effectively grants all downstream users the right to freely use the software.

This is one of those times I wish we could moderate a topic as "troll". It's complete FUD.

Remember Caldera (1)

MonkeyDluffy (577002) | more than 10 years ago | (#9115981)

It was only a few years ago that many of us were cheering for Caldera in its DR DOS lawsuit against Microsoft. Hopefully, IBM would not do anything as stupid as Caldera/TSG has done since then.


It would be stupid (1)

MrRuslan (767128) | more than 10 years ago | (#9115982)

for IBM to do that because that would alianate the entire linux community and turn alot of important people against them it's not gonna work no matter how big they are...Linux is ment to be open and dirty tricks will make things bad for them...look at SCO...

Homer can't see this... (5, Funny)

e5z8652 (528912) | more than 10 years ago | (#9116007)

"Even Homer Simpson can see this coming.

Homer Simpson CANNOT see this coming. However, given a half hour, he could accidentally trap the entire IBM legal department in some underground cave (or perhaps Moe's), find an old patent in his attic registered by his great grandfather* in 1901 for a "computing device", show up to court and take IBM to the cleaners for, oh let's just say $3 Billion, and then sign over the check to Mr. Burns in return for a week off and a couple of donuts.

*OK, we all know Lisa forged the 1901 patent, but as long as it works in court we're fine.

Re:Homer can't see this... (1)

elwell642 (754833) | more than 10 years ago | (#9116096)

"I see Esc, K'tarl, and pig-up... where's the any key?"

I'm still wondering how Homer got his name mentioned in this article. Article -1, Offtopic

Re:Homer can't see this... (0)

Anonymous Coward | more than 10 years ago | (#9116105)

Hey, I saw that episode!

Re:Homer can't see this... (1)

NaugaHunter (639364) | more than 10 years ago | (#9116213)

Worst. Episode. Ever.

Sorry, had to be said. It's actually way more coherent than many of this season's episodes so far.

Last card in the deck (5, Insightful)

akaina (472254) | more than 10 years ago | (#9116025)

Patents are the last card in the deck. Consider the fact that SCO was looking to generate revenue having exhausted all of its other streams. Everyone knows SCO had nothing to offer, and that's where part of their disdain came from.

On the flip side there are small companies making a name - but most grass roots efforts can defeat them.

IBM is no where near as close to closing its doors as Sun, so I don't know why everybody is worried about IBM.

Re:Last card in the deck (1)

bersl2 (689221) | more than 10 years ago | (#9116093)

Perhaps IBM truly has "mellowed out" in its middle age...

I'm willing to give them support for now. Nevertheless, you know what they say about the price of freedom...

IBM gets it, so far (4, Interesting)

Anonymous Coward | more than 10 years ago | (#9116051)

I think IBM recognizes that it's getting free labor from the community. I don't think they'll flex their patent muscles over that w/r/t Linux, unless some corporate goomer tries to prevent them from getting their free labor and goodwill (coughSCOugh). Other software that competes with stuff they sell? That's another matter.

Microsoft, reportedly, is patenting everything in sight. As the IBM portfolio begins to expire they may begin to rival IBM in active software and process patents. The real concern is in the application layer and interoperability protocols. This area is infinitely variable and still offers some hope for profitability, if a company can get a lock on a needed software function. Expect to see hostile action and possible barratry against security protocols, multimedia projects, groupware, web application interfaces and maybe even virtual machine systems. These are all areas where research is done and new ideas are being tried, and probably areas where MS and IBM are filing new software patents. They are certainly areas where MS and IBM hope to make money on software or delivery of unique services. Patents are a way to keep their offerings (legally) unique.

is it just me? (1, Funny)

Anonymous Coward | more than 10 years ago | (#9116066)

Is it just me or does this look like just a hate story against the big blue? Okay, IBM is not the saint that is portaired by some hardcore fans of its recent linux 'friendliness' since it has showed clear signs of greediness in the past. I've heard of IBM 'solutions' being sold in the late 20th century to 'support' the 'employment' of colored people in africa but.. that's all in the past. And if the IBM is going to do such a bad thing to linux, fight its distributions we'd like to see the proof.

Where's the proof? Is this thread just a speculation?

Is ignorance an excuse? (2, Interesting)

CodeMonkey4Hire (773870) | more than 10 years ago | (#9116073)

IANAP[atent]L[awyer], but surely there is some protection for a person/organization that unknowingly infringes. Could they not cease the infringing practice from the time of disclosure and/or come to an agreement. Otherwise, it seems like the party that accidentally infringes could be subject to some serious demands/damages.

The cost of a sufficient patent search would be prohibitive to many OSS teams.

Choice? (1)

SavedLinuXgeeK (769306) | more than 10 years ago | (#9116087)

Patents ensure money for the creator, for a given period of time, so that they work they put into their product, is returned. Normally monitarily. With Open Source, they do not really create for $$ but just so they can use their software when they are done. I understand now as F/OSS is hitting mainstream there are going to be come conflicts between the two ideals of closed and open. But honestly, the open source community is full of people unhappy with current programs, and creating their own. If people start patenting their products, it will kill the ability to create different choices, and choice is the power of OSS. I am not sure how this will affect the situation, but I cannot see it as being good at all. Throwing money into F/OSS is only grounds for making more conflict, not helping the open source development model.

Non-partisan? (1)

Tarantolato (760537) | more than 10 years ago | (#9116098)

The Alexis de Tocqueville Institute may officially be non-partisan, but it's basically a jobs program for second-tier Neoconservatives.

Funded by Microsoft (5, Informative)

Anonymous Coward | more than 10 years ago | (#9116118)

Is this the same "non-partisan Alexis de Tocqueville Institute" which is funded by Microsoft? That suggested "Open Source Software allows terrorists an easy time hacking into our systems"? Or did people forget this already? &mode=thread&tid=109 []

Indeed (0)

Anonymous Coward | more than 10 years ago | (#9116152)

Mod parent up

sigh...spelling error in first sentence. (1)

stealth.c (724419) | more than 10 years ago | (#9116119)

In the quote by Russel McOrmond, the writer quotes him as saying "This isn't hobbiest stuff."

Now, if "hobby" were an adjective (even in a term like "hobby market," "hobby" is still not an adjective--it's a modifying noun), then "hobbiest" would mean the object you're describing is hobbier than anything else. But hobby is not an adjective. It is a noun. The word the author was looking for is a word for a person who engages in a hobby: "hobbyist."

Second, even if the quoted party (Mr. McOrmond) spelled it that way, it's important for the quoter to put a [sic] after the word to signify that yes, it's spelled wrong but it's not a typo. You do this instead of correcting the spelling in the name of journalistic integrity. Leaving it the way it is tells me either 1: the author doesn't know how to spell "hobbyist" or 2: the author is a sloppy typist.

Re:sigh...spelling error in first sentence. (0)

Anonymous Coward | more than 10 years ago | (#9116389)

It's a sign of the times. Most people have piss-poor written grammar and have no more idea about word choice than a 3rd grader. Example:

We'll, looks like they're softwares got a bug. What do you suggest we do about it.

A spell checker won't complain about any of the text above, but it's obviously wrong. Bunch of damn hobbiests!

Patents, Penguin and Daemons too! (2, Interesting)

modipodio (556587) | more than 10 years ago | (#9116132)

Don't forget that software patents are a big issue for software developers that use the BSD licence as well and that the BSD community has seen its fair share of litigation. This isnt just a Linux/GPL issue.

Solution: sue the patent office (4, Interesting)

Sebby (238625) | more than 10 years ago | (#9116138)

1. sue the patent office for not doing their job when we find plenty of prior art for all the trivial patents

2. force them to open up their approval process to the public so that these trivial patents won't even get approved as a condition of winning #1.

3. Freedom!

Re:Solution: sue the patent office (1)

space77pup (743735) | more than 10 years ago | (#9116317)

" Only Americans would moderate the truth as 'Troll' or 'Flamebait' " -Anonymous

That's because there's no ratings for 'Naive' or 'Ignorant'

IBM is in the hardware business (4, Insightful)

Thangodin (177516) | more than 10 years ago | (#9116140)

IBM's only interest in software is to have a free code base to run on their actual product--the hardware. They don't want to sell an OS, and they don't want to buy one either. Their interest is in keeping it free in order to limit their overhead. IBM got sick of having to shell out cash to Microsoft on every box they sold. The other hardware manufacturers have the same motivation. The point of Linux, for all of them, has always been that it is free and open. Anything else just doesn't fit their business model.

How does this junk make the front page? (5, Insightful)

augustz (18082) | more than 10 years ago | (#9116168)

This group has a long history of being microsoft funded and packed with neocons. Non-partisan? I had to laugh when I saw CmdrTaco put that there.

On the IBM point, IBM already has a giant patent portfolio. GIANT.

The difference with IBM is while they'll make money on their portfolio, they are not a dying company who'es only source of revenue are patents. They've played exceeding well with the linux world, have expressed their dislike of patents in the past, and distribute Linux so have agreed to the GPL.

Even Home Simpson could see this is a bunch of BS.

Non Partisan? Really?? (4, Interesting)

maroberts (15852) | more than 10 years ago | (#9116170)

A rummage of Slashdot shows that they did an earlier FUD article [] on associating Terrorism with the GPL. It was suspected that it the institute was inflenced or funded [] by Microsoft

Re:Non Partisan? Really?? (2, Funny)

GPLDAN (732269) | more than 10 years ago | (#9116341)

This "non-partisan" bunch of wankers next project paper:

1. Why Longhorn promotes goodness in the world.
2. Why the Linux penguin is a symbol of a secret cult.
3. Hitler's Diaries, the hidden chapter on why open source is good for fascism.
4. Linus Torvalds spelled backwards means "Horrible Disease" in Swahili.
5. Why only a pinko commie who hates America and freedom would use Linux.
6. The Finnish conspiracy.
7. How the Olympics banned Linux.
8. How Al-Queda can strike all the companies in the world you run Linux.
9. How Darl mcBride will go down as a hero in the revised history books of the future.
10. Why apache causes AIDS in the third world.

These will be, of course, unbiased factual reports.

The Homer? (2, Funny)

_iris (92554) | more than 10 years ago | (#9116183)

Homer Simpson!? Is that guy still around?

Misleading article: Editors asleep at the wheel (1, Redundant)

LibrePensador (668335) | more than 10 years ago | (#9116205)

What a sham and what a same it is to describe The Alexis de Tocqueville Institute as being non-partisan.

Not in a hundred years. Read the previous fud that they published about Linux. You particulary want to read the articles by Kenneth P. Brown.

In fact, I see this as nothing but an attempt to divide the Linux community. Linux is not a zero-sum game. It has already proven that we can all win, some may win more than others, but both users and companies are better off because of its existence.

Obligatory Jerky Boys Reference (2, Interesting)

List of FAILURES (769395) | more than 10 years ago | (#9116254)

Lawyer: Sue who?
Sol: Sue you people for punitive damages that you're giving me.
Lawyer: You want to sue me?
Sol: Sure. Sue everyone!!

Maybe (0)

Anonymous Coward | more than 10 years ago | (#9116306)

I'll have to stay AC on this one. I got into an interesting situation specifically in regard to this, but I can't talk about it which is too bad because I wonder if others have run into this situation also.

What I can say is that the typical head stuck in the sand (or some other unmentionable place) attiude of the open source community does not help here. Lessig has complained about this on occasion.

That said, there is this saying "the enemy of my enemy is my friend". Linux's survival depends on it being an enemy to the right enemy and being essential in that regard.

Could IBM possibly mandate a proprietary component (2, Insightful)

CompSci101 (706779) | more than 10 years ago | (#9116367)

Everyone is discounting IBM's ability to derail and/or subsume F/OSS by virtue of the GPL (that is, they won't be able to because the GPL requires that they provide the source for their contributions to the kernel). The problem I see with this is that they have the ability, due to their market presence, to incorporate a proprietary component into their distributions -- possibly protected by patents -- that is subsequently shoved down the throats of businesses they service.

In other words, they definitely have the potential/capability to "pull a Microsoft" and steer people in the direction of building their enterprises around a proprietary solution that sits on top of an open standard (in Microsoft's case, it was the open x86 ISA -- make no mistake that it's the *main* reason they succeeded against Apple and the Mac).

Imagine that IBM creates "Super-indispensable-wonder-widget-for-business" 1.0 and incorporates it into their distributions for the low, low price of $0.00 (think "Internet Explorer"). Meanwhile, they file a patent for said widget, ensuring that nobody, anywhere will be able to implement the same concept without getting sued. Businesses that are now reliant on the formerly free widget are now shocked to learn that buying the widget along with the support for their otherwise free distribution costs a staggering $gajillion.00.

Their position will be cemented, and there will be no recourse to an open-source alternative. Simply implementing the idea would require paying IBM a licensing fee.

Software patents are evil. Plain and simple.


Re:Could IBM possibly mandate a proprietary compon (2, Interesting)

stevedc2000 (528489) | more than 10 years ago | (#9116504)

WFIW, I agree..

And Personally, I feel that any large corporation, be it IBM, HP or Microsoft, will do whatever it feels is necessary to protect it's own position.

IBM may be the 'hero of the hour' right now, but I have a nasty feeling that this may be a very insideous form of 'Embrace and Extend'...a practice that may on slashdot accuse Microsoft of carrying out, and yet it may be happening even now, right under our noses.

In the end companies are in business to make money, not friends...

IBM DOES sue over patents (1, Interesting)

Anonymous Coward | more than 10 years ago | (#9116414)

Anyone who thinks IBM doesn't sue over patents doesn't know anything. The company I work for was recently sued by IBM over a software patent. We have been using the same technique for quite some time (15 years). It was only shortly after the company reached a certain market size that IBM came after the company claiming that we had violated several of their patents.

This wasn't a defensive move. It was a blatant example of IBM wanting to make money.

Fortunatley enough for us, our methods were dissimilar enough to satisfy them.

The next time anyone says that "its a defensive measure" for IBM patenting everything under the sun, you can freely call them an idiot.

The real issue (-1, Flamebait)

Anonymous Coward | more than 10 years ago | (#9116442)

Is that linux pisses me off.

I aquired an old travan drive and a box full of 20gig tapes from work, and wanted to add it to my samba PDC/fileserver at home, being a much simpler backup solution than 4 or 5 cds a week.

So I had to recompile my kernel (2.6.5). All I did was load the old config and add the ftape stuff as modules. I did it the new "right"

And now the shit hits the fan! Suddenly I cant see the machine in windows networking. But sambas running. What the hell is this! Then I realize I can see it by IP, so it's an nmbd problem. I check the logs. nmbd is segfaulting like a bitch in heat. But why?

So on a hunch I try to ping some machines by name from the linux box. The hosts are set to be read from "files ldap wins dns" in nsswitch.conf It wont work! Somethings wrong here. I type "getent hosts", and get the two entries from hosts.conf and a seg fault.

A-ha! LDAP is busted, again! I'm not surprised, since apparently the sleepycat db backend doesnt actually work. A db_recover should settle its hash. So I kill -9 the now hung slapd and do a db_recover and restart it. I try "getent hosts" again, same problem. I try attaching to ldap using a java based browser on my windows box. I can connect, read, modify entries no problem. pam still seems to be able to read ldap since I can login as users who only exist in ldap.

So I figure that kernel has gone nuts, I was certain I hadn't done anything crazy to the config, I always double check everything when I load an old config file (since I've been burned by buggy menuconfig before). Pretty mundane stuff, really. No need for sound support, DRI, firewire, only basic USB support. The most esoteric thing I had selected was support for cryptoloop, with the various cyphers built as modules.

Apparently in his wisdom Morton is going to pull cryptoloop out of a STABLE kernel and fuck over anyone using it, because it isn't as secure on paper as he'd like it to be, when frankly for my and most other purposes it's more than secure enough. I could give a fuck if the NSA could brute force the 256 bit key by comparing the init vectors, I'm confident noone with any normal equipment could.

My advice from past and present experience, don't encrypt ANYTHING in linux. You may find yourself in a position where you can never get it back.

Whatever, I'll rebuild it completely clean. Hell, I'll upgrade to this fancy-shmancy 2.6.6 while I'm at it.

So I blow away my old kernel tree, I dont want to risk merely patching it. I download the full 2.6.6 tarball, extract it, make menuconfig, make, make modules_install, and copy bzImage and myself. I run lilo, and get ready to reboot.

Now it hangs during init when it tries to run gpm. Nice. I cant ssh or telnet in. I guess its singleuser mode for me.

I can only imagine going through this in a real enterprise environment. Yowch! No wonder win2k3 is flying off the shelves.

Anyways, my point is, I hope IBM pulls out a patent on the monolithic kernel (likely dating from the 50s) and forces the free unix-like OS to abandon the linux kernel in favor of a decent microkernel, so a guy can add a tape drive without a week of hassles. Frankly, the kernel is the WEAKEST LINK. You all know it, but wont admit it. It belongs embedded in tivos, not on modern general purpose computing hardware. It's much too inflexible.

Long live GNU/mach.

Counterquestions??? (0)

Anonymous Coward | more than 10 years ago | (#9116488)

When you think of opensource as a single product made by a single entity (like this paper does, where it says opensource it "thinks" linux) then ofcourse a succesfull patent "problem" (not just lawsuits, simply publicly "thinking" about non-free licencing condition will do) means problems for allmost anyone involved in anyway in the project... But in opensource anyone can solve a problem (that goes for legal ones as well as technical ones). And ofcourse there is always more then one way to do it. Plenty of alternatives for almost any idea *and* any implementation.

So where should a big IP boy strike to make a real diffrence in the open-source world? Is there anything for which there is no alternative? Is there anything covered by a patent that cant be done without implementing it in patented way?

Also the paper has a big mistake, it says: "Another problem is that the open source community is heavily relying upon companies in the Linux community to patent software to keep them safe from would-be villains that would go after them or their companies." Sure, redhat has "promised" to defensivly use its patents to protect open-source and this is no protection against all posible patent and patent trouble makers. *but* a patent covers all systems implementing its idea, *including propriaitairy ones*. Once a company big or small starts making any kind of patent trouble it will be picked up on the raders of the legal departments of all big players, propriatairy or otherwise. Afterall these are the people ones who will end up paying for licences if a patent trouble maker is allowed to succeed for to long and a patend stand. This is especially the case of open standards with patents in them.

The headline of this story could have been: "Is open-source in big trouble if all of the following patent protection tactics fail?", and as in most cases of a question in a headline the answer is: No And as in all these cases from tabloids to this, this is admitted in fine print at then end of the article...

  1. fud
  2. ....
  3. money?

OSS Patent Orginization (2, Interesting)

stumbler (219354) | more than 10 years ago | (#9116491)

I believe it would be in the community's best interest to establish a foundation solely dedicated to creating, holding and managing OSS patents.

Without such a foundation, it will be hard --- if not impossible --- to protect the IP created by OSS projects. The patents created can be licenses (to commercial companies) for the sole purpose of creating a warchest to defend against patent suits and to fund submissions to the patent process.

Obviously, the current patent system is forcing the community in this direction.

It's imparative that we do not fall behind and lose the ability to create.

Turing and (!) embryology (1)

dpbsmith (263124) | more than 10 years ago | (#9116497)

Turing was quite a guy. When I was a grad student in zoology, I was casually interested for a while in differentiation--the process by which a bunch of seemingly similar cells decide that some of them should become a liver, some lungs, etc. I ran across a 1950s paper, I think it was in Transactions of the Royal Academy of Science that touched on the subject in some depth--and my jaw dropped when I discovered it was by Alan Turing. I had to blink twice and double check to confirm that it really was the Turing-machine Turing and not other Alan Turing. (Google search on "turing embryology" for more).

Prevention is Obvious (2, Funny)

SEWilco (27983) | more than 10 years ago | (#9116567)

An idea which is obvious to someone who works in the field can not be patented.

When you announce your latest addition to Linux, don't say "I had a great new idea!". Say "It certainly is obvious that this was needed."

"Conservative think tank" (1)

dpbsmith (263124) | more than 10 years ago | (#9116573)

The Alexis de Tocqueville Institution may be nominally "non-partisan," but it is usually described as a "conservative think tank."

I personally read the article as an attack on the Open Source community on the basis of its being sort of leftish or socialistic--much like Darl McBride's claim that the GPL is unconstitutional--but a much cleverer, well-reasoned, subtle attack than Darl's.

I have met the enemy... (1)

Ann Elk (668880) | more than 10 years ago | (#9116597)

...and his name is Microsoft.

I cannot imagine IBM going after Open Source developers for patent infringement. Like other people on this thread have mentioned, it's just not in IBM's best interest, doesn't fit with their business model, etc. But Microsoft...

Microsoft has claimed repeatedly that their patent portfolio is "purely defensive". This is also the message spread internally to get uncooperative engineers to contribute to patent applications. At least, that was my experience.

The real question is: At what point will Microsoft feel the need to respond "defensively" to the Linux threat?

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