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Patents GNU is Not Unix Government The Courts News

Maybe Software Patents Won't Kill FOSS After All 305

Posted by timothy from the hurdles-and-hoops dept.
Roblimo writes "Lawrence Rosen, attorney for the Open Source Initiative, doesn't seem to be as worried about software patents' effects on open source development as some Slashdot readers. In this article he says, 'Don't be too paranoid about the patent problem. It's a real problem, but not a catastrophe. Any patent owner that tries to assert its patents against open source software has many hurdles to leap before the royalty checks start to arrive.'"
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Maybe Software Patents Won't Kill FOSS After All More

Maybe Software Patents Won't Kill FOSS After All

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  • It's not about the royalty checks (Score:5, Insightful)

    by One Louder ( 595430 ) on Monday July 26, 2004 @08:43PM (#9807378)
    When the Great Patent War commences next year, it won't be about getting checks - it will be about scaring people away from Open Source solutions to problems previously solved by proprietary products. The companies that will asserting the patents don't need and don't want the money - they want the products dead and customers scared off.

    • Re:It's not about the royalty checks (Score:5, Insightful)

      by gcaseye6677 ( 694805 ) on Monday July 26, 2004 @08:48PM (#9807420)
      Sadly, I think you're right. Just look at what SCO has been doing. I don't even think they were stupid enough to believe that every Linux user would write them a check. Surely someone told Darl that any infringing code could be replaced. They were just spreading FUD for their sponsor (MS) who was paying the bills that would allow them to run their stock scam. At this point, it seems likely that Microsoft, who has the most to lose from open source, will find another SCO-like partner to use as a FUD agent. And this one probably won't be so incompetent.
      • Microsoft, who has the most to lose from open source

        It seems to me that Sun already lost (almost) all of its assets to Linux.

        Microsoft isn't the only player, even if it's a big one.
        • MS just recently paid Sun a gob of money for "intellectual property". You can bet your ass sun will use it to attack open source.

          Sun the next SCO. Another MS puppet attacking open source.

        • No so sure. (Score:4, Insightful)

          by PotatoHead ( 12771 ) * <doug.opengeek@org> on Tuesday July 27, 2004 @04:05AM (#9809237) Homepage Journal
          Sun, being a UNIX house, is near the front of the line, but they won't be the last to lose with Linux. The best asset SUN has is its people. They need to leverage that into new solutions that are more than the common stuff we have today.

          This is what Open Source is all about. We know how to build most of the software people need to use today. Why keep paying for that, when we could be advancing the art of computer science, or helping people make the most of exists now. Good OSS people can build complex, powerful solutions right off the net. They are worth paying for. Software companies can build new things that are worth paying for as well.

          The fortunes of the big software houses were built on the general ignorance the rest of us had. Problem is they stopped innovating and began simply selling and locking in to keep their position. This benefits nobody really, including them, because the backlash from their overselling will tarnish their customer relations to a point where it might almost be better to let new companies, with a clue, step in and show how it should be done.

          Linux and OSS will eventually force a new model. Open operating systems, standards, and applications will provide most of what people need. The software worth paying for will be new software that is tough to write, it will be new software that actually delivers its value in terms of its raw capability. Services will continue to be big as people understand they can pay for solutions that fit them, and perhaps only them, instead of boxed software stamped and sold by the billions. This is where IBM has it right, and also where SUN has some learning to do yet.

          I will pay for software that is new, or that is difficult to write and maintain because those that do the work deserve it. Sadly, this does not fit most of what SUN and Microsoft and their partners package and sell today.

          SUN still has a lot of very bright people capable of great things --they just need to buckle down now, while they have some position and cash in the market and really take things to the next level. They should do this on Linux and let the OSS community do the rest.

          SGI, BTW is beginning to see some real success doing exactly this. Almost cost them the company because they were late to the party and had a very vulnerable position to begin with. SUN is in far better shape, they should have a good chance at keeping things that way, if they work at it...

    • Re:It's not about the royalty checks (Score:5, Insightful)

      by pongo000 ( 97357 ) on Monday July 26, 2004 @08:58PM (#9807508)
      What recourse does a company asserting a patent have against an end user? The end user isn't violating the patent in question -- the alleged violation was committed by the creator of the work. I simply don't see how patents can be used to "scare people away from Open Source solutions."

      • Re:It's not about the royalty checks (Score:5, Interesting)

        by einer ( 459199 ) on Monday July 26, 2004 @09:15PM (#9807598) Journal
        I agree that it has nothing to do with the end user.

        At my previous place of employment, management was scared away from Open Source Software. We had a "consultant" audit our shop. Apparently, Samba has the potential to create "future legal headaches." The SCO debacle was also brought up and used to scare management into purging open source software from every server and workstation. "Future interoperability concerns" were cited as well, since the world stops spinning without Microsoft, and Microsoft doesn't endorse our practice of using OSS.

        I didn't find any actual out and out lies in the review. It's true that in the future, there is a potential for "legal headaches." It's not likely, and I imagine I'm probably more likely to be struck by lightning, while being eaten by a shark, while also holding the winning Powerball ticket.

        Clearly, this is an example of terminal rectal-cranial-inversion, but I doubt it's an isolated case. Suits listen to suits, not to programmers.

        It's not patents per se, but the uncertain (by whose standards I couldn't say) legal water that OSS exists in. The danger exists in the fostering of legal uncertainty.
        • There is likely a higher statistical probability that the use of Microsoft products would create "future legal headaches."

          Two reasons, first from the historical perspective Microsoft has taken action against end users.

          Second, Microsoft is actively auditing end user organisations and causing no end of headaches.

          The Open Source community (and Samba) has shown no indication of taking such action. While SCO has blustered about couty action agaist some Open Source users, it has not actually won a case yet.

          O

          • On that basis, Open Source software is safer than Microsoft software.

            Agreed. However, you have another problem.

            I talk with a lot of businesses about open source. My big push has recently been Mozilla, and most of my customers are really impressed by it. That being said, you have two groups of customers.

            The first sees open source as the "cheap alternative for those who don't want to spend money." They tend to see open source as too informal to be a safe bet. For good reason, I might add-- most open source projects, like most commercial software, never gets off the ground. The difference is that the prereleases or early versions are still publically available. A patent infringement suit would make these people think "I told you so" and go back into their hole.

            The second type sees open source as a low-budget solution which has strategic and legal benefits to offer their organization. These folks are likely to be more interested in control over their infrastructure, standards compliance, modularity of infrastructure than they are over license fees, though these may come into it at some point. I think that these people would probably NOT be scared away from using open source by a patent suit.

            My father, a non-technical physician who has been following the recent fiaSCO said to me the other day, "SCO is giving people a really good reason to use open source software."

            So, such an infringement suit would likely deepen the existing divisions in the business world, as, I think, the SCO suits (both types) are.
          • There is likely a higher statistical probability that the use of Microsoft products would create "future legal headaches."

            3 words: Timeline v. Microssoft.

            A real case where a real court found that real users were infringing Timeline's copyrights and/or licenses because they used code they recieved from Microsoft the way Microsoft told them to. Not bulls*** like the SCO "cases".

        • Comment removed (Score:4, Insightful)

          by account_deleted ( 4530225 ) on Monday July 26, 2004 @11:11PM (#9808159)
          Comment removed based on user account deletion
          • i would agree to an extent. Fortunatly i tend to try and use opensource solutions for much the same reasons. I can pretty much guarente i will be at the minimum consulted on anythign done to my servers i have in place.

            I recently had a law firm set a windows 2003 server in place and upgraded all the workstations to new dells running windows XP. I was against the move but didn't have mmuch say in the matter because they used another consultant that was recomended by a vender trying to sell them some softwar

      • Re:It's not about the royalty checks (Score:4, Informative)

        by hgolden ( 26353 ) <howard_b_golden AT yahoo DOT com> on Monday July 26, 2004 @09:36PM (#9807693)
        pongo, patents allow the patent holder to prevent the end user from using the patented invention. It is a violation to use a patented invention without a license from the patent holder.

        Note that this is different from how copyrights work. Once you have a copy of a copyrighted work, you have (at least in the United States) certain "fair use" rights.

        So, in theory at least, a patent holder can sue an end user to prevent him/her from using the patented invention without a license, and the patent holder can obtain an injunction from a court to forbid use of the patented invention by an unlicensed end user.

    • Re:It's not about the royalty checks (Score:5, Insightful)

      by oogoliegoogolie ( 635356 ) on Monday July 26, 2004 @09:15PM (#9807597)
      That is a possibility, but it could as easily backfire for the company initiating the litigation. SCO certainly hasn't stopped linux adoption.

      Companies when confronted with alleged patent violations often roll over and pay up. For them it is a business decision. Pay $x million now for the right to use the technology, or pay $x million + $y million for laywers if they fight and lose. Sometimes it's better to pay $x and be done with it than pay $x+$y.

      Open source is a different story. When open source gets attacked it's as like when a bear tries to get into the beehive-it's personal! The opensource bees get riled up and come out to protect the open source honey.

      One bee against a bear in no match, but thousands will eventually come out, attack, and drive off the bear. If the bear gets stung too many times, it leaves the bees alone and wanders off to look for something else. The bees are smarter, more alert, and more wary, and notice sooner when a bear approaches. They know the bear wants their honey and work harder to protect it.

      Now the bear thinks twice about trying to get the open source honey. Other bears that heard what happened stay away from the honey because they know how bad the first bear got stung and realize it isn't worth it. And all other creatures who know nothing about the open source honey hear of this bear and think of the bear as foolish, deparate, and a big bully and want nothing to do with the bear.

      • One bee against a bear in no match, but thousands will eventually come out, attack, and drive off the bear.

        I'd like to think you're right, but I'm not sure you are. Do we really have any evidence that community efforts such as Groklaw have had any effect on SCO? So far as I can tell, they are losing solely on the merits.

        • So far as I can tell, they are losing solely on the merits.

          You could attribute the apparent lack of action to just that; the fact that we know SCO is going down. There is not much for the average Linux user to do to speed this up except for the things which have been done -- detailed analysis of SCO's claims (which I'm sure IBMs people have found helpful), (often successful) attempts to soil SCO's PR, support for vendors being sued by SCO (there was a movement for OSS folk to buy something from AutoZone

      • Nice fable, but I don't buy it. Suppose Microsoft alleges patent infringement in Linux, and demands that Linux distribution stop. You think hundreds of angry geeks are going to sue Microsoft? What would be the basis of their lawsuit? If the lawsuits are baseless, and merely a "legal DOS", they would be dismissed and the plaintiffs would be subject to penalties.

        What other kind of sting do you have in mind?
    • The parent is right. It isn't about the royalty checks. It's about the threat to both the development and uptake of OSS.

      Who wants to work on a project that, if it looks successful is going to end up being beaten up and shut down by the patent holder. Since OSS has no revenue stream, even a small royalty can kill it.

      Big biz backers of OSS (IBM, Novell,...) could perceive a threat of big royalties or civil cases if they assist OSS projects. For example, the patent owners could make a case that apart from dire

    • they want the products dead and customers scared off.

      Kinda like a county whose county seat scared off the railroads when the railroads were expanding across the American west.

      This isn't about shooting yourself in the foot. It's about cutting off the industry's air supply. To whose benefit?

    • When the Great Patent War commences next year, it won't be about getting checks - it will be about scaring people away from Open Source solutions to problems previously solved by proprietary products.

      But we can count on "our side" those companies who stand to profit immensely from open source, rather than relying solely upon their own R&D investments to further their products. There's some big names in there, including IBM, Novell, HP, Sun, etc.

      And remember, no product can succeed that stands still

    • When the Great Patent War commences next year, it won't be about getting checks... they want the products dead and customers scared off.

      They don't even need to scare the customers in order to kill the product. It's as simple as saying "You don't have permission to use my patent -- cease and desist immediately." Unless the patent is trivially invalid, the courts will tend to side with the patent holder and issue the necessary orders to make the infringer halt while the case is decided. There are no re

  • OMG! (Score:5, Funny)

    by NaCh0 ( 6124 ) on Monday July 26, 2004 @08:43PM (#9807379) Homepage
    A voice of sanity on slashdot. I knew it was a slow day.

  • No money issue? (Score:4, Insightful)

    by chrispyman ( 710460 ) on Monday July 26, 2004 @08:43PM (#9807383)
    So the main reason it's not likely that an open source project will get sued is simply because they don't have any money. Unfortunately what would likely happen if they did sue is that it would cripple or kill that project. Fortunately I'd suspect that if some open source project had a big company (say Sun or IBM) backing it, I doubt this whole thing would be a problem.
    • So the main reason it's not likely that an open source project will get sued is simply because they don't have any money.

      Don't tell it to Caldera^H^H^H^H^H^HSCO, they think they can make $5BN by suing IBM, RH and Novell over Linux.
    • >Fortunately I'd suspect that if some open source project had a big company (say Sun or IBM) backing it, I doubt this whole thing would be a problem.

      But if IBM settles with $PLAINTIFF by a cross-licensing deal, independent developers are left out in the cold and $PLAINTIFF can still shut them down.

  • Royalties (Score:5, Insightful)

    by phorm ( 591458 ) on Monday July 26, 2004 @08:43PM (#9807386) Journal
    Any patent owner that tries to assert its patents against open source software has many hurdles to leap before the royalty checks start to arrive.

    Except much of the concern is not only paying out royalties, but being dragged through useless court proceeding after court proceeding by companies that find it much more to their benefit to drag OSS through the mud, and strike fear of legal action into the hearts of OS proponents.

    There comes a point where it doesn't really matter if you win in court, particular if one hsa gone through a costly multi-year court battle just to be proclaimed "innocent" of any wrongdoing.
    • From Rosen's viewpoint, remember he's a lawyer, having free software developers be dragged into court is a win, for they are likely to hire him as counsel.

  • its not the royalties (Score:5, Insightful)

    by jrexilius ( 520067 ) on Monday July 26, 2004 @08:46PM (#9807406) Homepage
    Its the fear factor to stop adoption (stop market loss not profit). I dont think MS wants royalties from OpenOffice, they want people to be too afraid to use it.
    • There are a few other comments in a similar vien. But this is where articles like the one we've just read, the EFF and (recently) proven community based defences like Groklaw are really proving their worth. Won't take many "scary" cases to fall over before they are just not scary any more.

  • Is this an issue? (Score:3, Interesting)

    by LivinFree ( 468341 ) on Monday July 26, 2004 @08:46PM (#9807407) Homepage
    Excuse my ignorance, but is this really an issue?

    If the OSS community comes up with an idea first, they can claim prior art, no? Otherwise, the idea (or implementation) rightfully belongs to the person or corporation that comes up with it.

    Proving prior art is a major nusaince, but if it happens enough, will companies place their patents under more scrutiny rather than figting for something they'll likely lose?

    --
    http://acostas.org [acostas.org]
    • It depends on how loosely you term "an idea" and how likely the USPTO is to recognize the prior art. After a petent is awraded to a company, no matter how ridiculous (one-click purchase?), if an OS package comes along that emulates the same general idea people can be sued for using it. The company doesnt even need to win, just to scare and sue people to keep end-users locked in to their solution.

    • Re:Is this an issue? (Score:5, Insightful)

      by BillyBlaze ( 746775 ) <tomfelker@gmail.com> on Monday July 26, 2004 @08:58PM (#9807505)
      The real problem is software patents protect the wrong thing. Ideas are worthless, but in software, the real investment is in implementation. And copyright is perfect for protecting software implementations. Besides that, having the exclusive right to an idea, and not just an implementation of it, works against the goals of having computers work together smoothly and having them be user friendly. If you can patent ideas, then the lock-in problem becomes insurmountable. If you can patent user interfaces, then there will be so many other interfaces to circumvent the patent that nobody will be able to figure out how to use the damn thing.

      And as a seperate problem, no, you can't "just" claim prior art. You have to be dragged into court, comply with C&D letters for several months, and give huge amounts of money to lawyers. Individuals simply can't afford this - for any project smaller than Linux itself, the maintainers would likely give up for financial reasons. Our legal system is too bloated and ineffective to rely on it as a safety valve for the chilling effects of patents.

      • >And as a seperate problem, no, you can't "just" claim prior art.

        Exactly. The article mentions that overturning a patent requires "clear and convincing" evidence. Good luck making something clear and convincing to a non-technical lawyer (the judge) while the plaintiff's lawyers work day and night to make it unclear and unconvincing.
      • You're absolutely correct, however maintaining the pace of technological progress will simply involve all innovative development work being done in other countries. It's already happening: it began with our stupid encryption laws forcing development in that area to be done overseas. Now the Feds seem to have decided that since technology has advanced as far as it needs to here in the U.S., there's really no point in mollycoddling our technical people anymore. They may not think of it that way, but that i
    • It probably would not be an issue in the U.S. if our Patent and Trademark Office had even a semblance of a clue. The problem is that once a patent is granted, however ridiculous, it takes a lot of money and time to invalidate it. By issuing thousands upon thousands of trivial (or simply duplicative) patents, the USPTO has made it very easy to sue anyone into submission over really stupid things.

  • Its not the royalty check that is the problem (Score:5, Insightful)

    by nurb432 ( 527695 ) on Monday July 26, 2004 @08:47PM (#9807412) Homepage Journal
    Its the cease and desist letters that come along first...

    You cant get blood out of a turnip, but you can make the turnip's life miserable...

  • Security matters (Score:3, Interesting)

    by gmuslera ( 3436 ) on Monday July 26, 2004 @08:48PM (#9807425) Homepage Journal
    At least in security you must assume your enemy have a lot of resources and is even smarter than you. With software patents, and you project being in risk because some essential portion is patented by someone else, people could doubt in wasting time if even when sucessful all could fall because the owner of the patent succeed in making trouble.

    And if well could be difficult for individuals holding patents, what about patent trading? If my project puts in the way of i.e. some Microsoft commercial program and starts to be viewed as a threath or at least a cause of not so high profits they could have the resources and the will to probably end my entire project.

  • There's also opportunity costs that an "inventator" can claim.
    The claim would be that the "inventor" is losing money, because the "invention" is illegally available for free as open source.

    However we twist and turn it, patents are there to get a lock on an idea to make money of said idea. Any way to limit the possibility of making money can be prosecuted. Hence Software patents still are bad.
    • Actually, no. Patents are there to get a lock on an implementation of an idea. Well, that's what Jefferson and the rest of the Founders intended. I grant that Congress has screwed with that concept to the point where patents (software or otherwise) have become fundamentally useless for their intended purpose.

      My own feeling is that we are headed for serious economic trouble over this. Serious. Other nations are moving ahead full-steam, picking up the pace of technological development, while we are pu

  • Comment removed (Score:5, Insightful)

    by account_deleted ( 4530225 ) on Monday July 26, 2004 @08:49PM (#9807435)
    Comment removed based on user account deletion

    • Big company, little company (Score:5, Insightful)

      by rumblin'rabbit ( 711865 ) on Monday July 26, 2004 @09:30PM (#9807661) Journal
      It's an article of faith that big corporations are greedy and nasty and the root of all evil. Heretic that I am, I don't buy it.

      Although big corporations have very deep pockets, they also have something called a reputation that they value greatly. Attracting the wrath of IT managers throughout the world is no small matter to them. For this reason, their claws often remained sheathed.

      Might I suggest that it's a new breed of company, small or mid-sized ones, whose very raison d'etre is to collect valuable intellectual property, that we have the most to fear from. They've got everything to win, little to lose, and they don't give rat's ass about their reputation.

      One example - SCO. A near worthless organization (about $10 million in market capitalization) until they discovered they "owned" Linux. They have been accused of ties with Microsoft (there is some evidence through BlueStar), but I'm not convinced. The Justice Department is ever watchful these days.

      A second example - Teleshuttle Technologies, subject of a recent post ( http://yro.slashdot.org/article.pl?sid=04/07/21/15 39205&tid=155 [slashdot.org] ).

      Expect to see more of them as time goes by.

      • "It's an article of faith that big corporations are greedy and nasty and the root of all evil. Heretic that I am, I don't buy it."

        Corporations are amoral. they are soul-less immortal beings whose purpose is to make money and nothing else. Yes that's greedy. Yes that's nasty. And yes if you believe in the bible and jesus it's the root of all evil.

        "Although big corporations have very deep pockets, they also have something called a reputation that they value greatly."

        Bullshit. As evidence I point you to Mic
      • One example - SCO. A near worthless organization (about $10 million in market capitalization) until they discovered they "owned" Linux. They have been accused of ties with Microsoft (there is some evidence through BlueStar), but I'm not convinced. The Justice Department is ever watchful these days.

        Personally, I'd see it as a counterargument to your claim -- a large company fighting a proxy war using a small medium-sized company.
      • Do you hear about IBM threatening small companies all the time using (software) patents? No. Does that mean they don't do that? Hell, no! [ffii.org]
    • It's worse than that ... if you've been selling your OSS then you are potentially liable for damages even if you drop the project. That is the real chilling effect. And if you released your source in good GPL fashion, you may have just opened yourself up to charges of facilitating copyright/patent infringement and all that crap. And if you're operating as a group of private citizens ... well guess what: each individual can be personally liable for any damages, etc. Frankly, I think that any OSS develop

  • A question I've always had... (Score:5, Interesting)

    by pongo000 ( 97357 ) on Monday July 26, 2004 @08:51PM (#9807454)
    ...and one I was hoping Mr. Rosen had an answer for: Exactly who does one sue for patent infringement when it comes to OSS? Once OSS has been "released", you can't call it back. In many cases, alleged infringers are given the opportunity to either license the patented technology, or to no longer use the technology.

    Although IANAL, I maintain that patents pose no real threat to OSS development, since authorship of OSS is a "moving target" (especially where derivative works come into play). Most OSS author are not likely to agree to royalty payments, so exactly what recourse does the accuser have at that point?
    • While you are correctly ou can't "call it back", they can make it illegal to use. If I release software X, that infringes on a patent Y, person or company Z (remember, not all patents are held by big companies) can sure me over my software. If they win, it was essentially illegal for me to release my software, since I didn't have the rights to patent Y. So at that point, the software I wrote is no longer under the GPL, as I didn't have the rights to release it. So it essential null and void. It would b
      • While you are correct you can't "call it back", they can make it illegal to use.

        Clarification: They can make it illegal to use in certain countries where that patent is valid. Now you know one reason that some companies are pushing so hard for software patents in the EU. Without it, development and use continue in Europe and the rest of the world (and with users in the US who are willing to violate the patent).

    • It is true that many projects could be continued elsewhere - look at Myth, formerly PlayFair, which moved overseas in response to legal theats. But driving useful software underground and overseas is still a bad thing - and good luck convincing your boss to let the company run software hosted in Elbonia for legal reasons.
    • They'll sue and harass anyone who tries to publically maintain a project. They'll also sue and harrass distributions and mirror sites.

  • *nods* (Score:2, Insightful)

    by JamesTRexx ( 675890 )
    Indeed, it's hard to sue someone for money if they don't make any from the open source software they write. It would at most only halt the development until there's an alternative to that part that's patented.
    But I think it's more likely there's more prior art to debunk the patent and drop any case in court.
  • The article points out some good reasons for not panicing. To explain them, it then mentions Giant Asteroid Impacts and Mutually Assured Distruction as for a massive nuclear war. These are not the best metaphors to choose in explaining why things are not really all that bad.

    • Re:Mixed message (Score:3, Interesting)

      by julesh ( 229690 )
      Actually, MAD seems like a good metaphor. It points out that the patent war might be avertable -- if the OSS community can acquire allies with enough patents to dissuade an attack, then the attack will probably never come. The question is: how far will IBM et al go to support OSS? Would they openly fight Microsoft?

  • Think before you do a patent search (Score:5, Insightful)

    by Beryllium Sphere(tm) ( 193358 ) on Monday July 26, 2004 @08:55PM (#9807485) Journal
    There's a bug in the idea of doing patent searches.

    To reproduce this bug, go through the following steps:
    1. Look for patents in the area where you're working.
    2. Find a patent which is related but not identical to what you're doing.
    3. Continue what you're doing.
    4. Get sued for infringement by the patent owner.

    Expected:
    Someone gives you credit for due diligence.
    Actual:
    Owner of related but not identical patent asks for triple damages for "willful infringement" using your knowledge of their patent as evidence. The threat of paying out three times as much forces you to settle unfavorably.
    • simply don't look them up
      don't care to know of them.

      create your work, and enjoy it.

      [my step]
      if it steps on someone's toe (which is doubtful) then ignore him until you have positive proof presented that you did in fact do what you did with willful intent to violate his patent... in that case, he can't

  • disagree, this will become a war against FOSS (Score:5, Insightful)

    by Anonymous Coward on Monday July 26, 2004 @09:00PM (#9807516)

    Mr. Rosen is a smart guy who knows about open source. (And I appreciate his "summary" at the end of the article, for those of us who never RTFA ;-). But I find his recommendations a little hard to swallow.

    1. Don't be too paranoid about the patent problem

    The guys with the patents only have two hurdle to cross: writing the cease and desist letter, and writing the FUD press release ("Linux stole are technology"). This *first* step in patent litigition can kill an open source project, never mind the *last* step (getting the royalty checks).

    Sure, maybe Mozilla and Apache will survive a patent attack. But what about a smaller open source project? The "guy in mom's basement". These guys will just pull their projects, regardless of the merits of the case.

    2. Don't try to out-invent the big guys.

    Don't try to out-code them either, right? Wrong!

    If open source can produce a product that competes with a multi-billion dollar company's product, it can pool its resources to generate patents. We should find a way to achieve this goal.

    I bet many clever open source programmers can find all kinds of stuff to patent in their code.. do you use a checksum to save some computation? Use a clever algorithm to distribute work among nodes? Transfer data out-of-order to exploit some optimizable properties of data? Look in your code, start thinking in terms of patents. Keep your bar LOW. Even the simplest thing is patentable, as we have seen time and time again.

    Take software licenses as an example: before the GPL, software licenses were an afterthought.. you just wanted to make sure you got credit. But the GPL is a tactical weapon that opened people's eyes to the issue of software licensing and the world of draconian EULAs we now deal with. Even if you don't like the GPL you must agree that licensing is almost as important as the quality of the code itself.

    We need to have the same eye-opener when it comes to patents. Maybe one of the big guys like FSF or Apache should take the first step and start applying for patents. Start a "patent fund" to research and file the patents.

    3. Conduct a reasonably diligent search for patents we might infringe.

    Why? What do we do when we find a patented technology that has no substitute (like "1-click ordering", the best you can do is make it "2 clicks")? Might as well ignore them until the C&D comes. Let *their* legal departments do the work.

    Design around patented technology wherever possible.

    What if it's not possible? What if the patent depends on, say, some part of a public spec? Either violate the patent, violate the spec, or go home. But generally this is good advice. If you know you are violating a patent, come up with something better, if you can..

    5. Identify allies who can defend us with their patent shields.

    This is good advice. Find a company with a "patent promise" that they won't litigate patents offensively.

    6. Withhold our software from those who sue us for patent infringement.

    Uh, okay, that'll show em. Hey microsoft! Your license to distribute Linux has just expired! TAKE THAT! And how will "the guy in the basement" enforce this anyway???

    Make no mistake, the bigco's (microsoft in particular) are salivating at the thought of destroying open source and painting them as "IP theives" all in one blow.

    If the sky isn't falling yet, it will be someday.

    I would add a #7 to his list:

    Make sure the business world understands the value proposition of open source and software freedom. It's not about altruism or people sitting at home saying "I'd like to write a content management system today, for free". It's about talented people solving real business problems for their own benefit. It works in the free market because it *is* the free market. It's not anti-competitive, it *is* competition: you're as good as your code, and no better.

    When microsoft tr

    • Just a thought. While MS doesn't distribute Linux (the kernel) they did use to distribute Cygwin as a Unix compatibility layer under their own brand. Would they lose that right? Do they still use Cygwin, or did they ever clean room the GNU tools?
    • If open source can produce a product that competes with a multi-billion dollar company's product, it can pool its resources to generate patents. We should find a way to achieve this goal.

      It's not that we couldn't, but it would be against our values. Software patents are plainly wrong and it is very reasonable to think them unconstitutional. If the Open Source community started grabbing for patents, we'd be legitimizing software patents and might even help to encourage their adoption outside the US!

  • Faulty premises (Score:5, Insightful)

    by Anita Coney ( 648748 ) on Monday July 26, 2004 @09:05PM (#9807541) Homepage
    Part of Rosen's argument is based on the fact that patent suits are hard to win in court. The other part of Rosen's argument assumes that anyone using patents against open source is looking for money, i.e., royalty payments.

    Both of those arguments fail when applied to Microsoft. Microsoft would never use its software patents to collect royalties. It would use them to make companies afraid to use open source and compel them to use Microsoft's products.

    Thus, it does not matter if Microsoft's patents are valid or not, when a company gets sued, Microsoft will offer a deal similar to this: Stop using open source and buy our products.

    The money monkeys in charge of the companies will fold because it will be more cost effective to simply buy Microsoft's products rather than risk losing at trial. After Micrsoft wins a few of these "settlements" open source will begin to look unattractive to anyone else considering it.

  • 1) SCO goes on a crusade, accuses anyone/everyone associated with Linux. IBM steps up to the plate and pours tons of time and money into defending Linux. Result? SCO f*ck's their relationship with Baystar, Chrysler, and McDonald's to hell and back and watches their stock go swimming in Wall Street's crapper.

    2) Microsoft patents anything and everything in an attempt to both block open source competition and pave the way for Longhorn's release. Result? Apple upstages MS with the demonstration of Longhorn'

  • Remember the cotton gin (Score:4, Insightful)

    by Bob Cat - NYMPHS ( 313647 ) on Monday July 26, 2004 @09:11PM (#9807569) Homepage
    Eli Whitney had a patent, but he couldn't sue the thousands who made their own. Also, lawyers will only go after the deep pockets, so if you are an infringer living in your parent's basement, they can't justify any action that loses them money.
  • I have been sort of thinking about this, and how patents are used in industry. Perhaps the intent can be reversed, as are done with software licences under copyleft.

    Can we devise something analogous to GPL for a software or hardware patent, so that if you use it in your product or design, then you must provide full source code and/or schematics and/or ensure that all other patents used in the product or software are available under the same terms. Then all open source advocates have to do, is create their own patent portfolio, as long as we can find lawyers willing to help with the filing. We can fight fire with fire, the next time somebody tries to embrace and extend, they will have serious trouble if the interface is protected by a public patent.

    Hello, RMS - are you out there? Wanna bite?

  • Can't Design Around (Score:2, Interesting)

    by HardYakka ( 265884 )
    The only patent I can think of that couldn't be designed around would be the case where a standard is patented i.e. MP3 encoding.

    Can anyone think of any other case were a patent could not be designed around? If so, would the author still be liable if the patent was designed around after they were informed of the infringment?

  • The real problem is the money that is involved in lawsuits.

  • I'm Chicken Little I guess . . . (Score:3, Interesting)

    by Eric Damron ( 553630 ) on Monday July 26, 2004 @09:48PM (#9807786)
    It is my sincerest hopes that Lawrence is correct; that some in the open source community are over stating the danger of patent litigation. He does NOT however state that there is no risk. I must have the "Chicken Little" syndrome that he talks about. Let me share my reasoning:

    From the article...

    "Does the dramatic increase in the number of software patents portend a catastrophe for open source software?

    Some argue that the threat of patents is vastly overstated. They point out that, while there are from time to time serious assertions of software patents, patent litigation is in practice very rare. This reflects both the high cost of such litigation and the difficulty of winning. "

    Although patent litigation has so far been rare, it is my belief that Microsoft sees the writing on the wall and will either directly or indirectly though the use of SCO-Like actions fund law suites in an effort to destroy any open source project that it feels is on its turf. Just because patent litigation has been rare in the past is no assurance that it will remain so. How many copyright litigation cases have been levied against the open source community? Microsoft helped SCO fund it's current litigation and I believe that it is a signal that they intend to use the law as a new anti-competitive tool.

    Litigation against a well funded corporation like IBM would be incredibly expensive but for smaller groups like the SAMBA team it wouldn't. Microsoft wouldn't have to win. All they would have to do is drain the open source company's coffers dry. Unless we all stick together, of course. Will we? Would there be a white knight corporation out there willing to swoop in and save the small open source developer? I don't know the answer to that.

    I believe that Microsoft's strategy is to ensure that Linux cannot be compatible with their next version of Windows. They have been filing ten or more patents every day related to Longhorn. The idea is simple. Find standards that you feel will become important and then patent as much technology as close to those standards as possible.

    Remember that Microsoft doesn't want to allow Linux to talk to it's monopoly OS. If they succeed in their strategy Linux, they hope, will wither on the vine. Look for Microsoft try to patent new protocols and force them to become "the standard." If they can control the way in which computers talk to each other via their monopoly and patent the way computers talk to each other then Linux as we know it could be toast.

  • The linked paper seems to suggest that the open source community doesn't have a sufficently threatening way of counterattack. However, he only considers liscensces that terminate rights to that *particular* piece of code. What if the GPL revoked the rights to *all* other code liscensced under the GPL in the case of a patent or copyright suit.

    Especially if this strong liscenscing clause revoked the right even to *use* the software in this case the FSF would have a very strong position. Almost any large s
    • Such a change to the GPL is not possible, as the GPL is simply a license that allows you to violate the copyright on the code if you obey certain conditions. Since it is only a license and not a contract, it cannot restrict you from doing things that you can normally legally do, such as run the software.

  • Article owner misses point.... (Score:5, Insightful)

    by russotto ( 537200 ) on Monday July 26, 2004 @09:55PM (#9807828) Journal
    And slashdot posters by and large get it right. Now there's something that doesn't occur every day.

    A few points both have missed so far, though. One is that a methodical patent search is impossible; patents use such opaque and obfuscatory language (often deliberately) that there's no way you can search for a patent on any given technique you've been using. Further, it may be a submarine patent.

    Prior art is largely irrelevant because the patent system is broken; the patent office doesn't seem to check it, even when the prior art is other patents (see, e.g. the LZW patent mess). Part of this is because patents (as I mentioned above) are essentially unsearchable. Prior art works when you've got deep pockets and the lawyers to overcome the assumption of validity. When you're Joe Open Source Programmer, you're screwed as soon as they file a lawsuit (assuming you had the nerve to ignore the C&D), regardless of how much prior art there is.

    So, on his recommendations --

    1) is good. Not because the patent problem isn't serious, but because there's nothing you can actually do about it. Like Global Thermonuclear War, you just have to plan for it not coming.

    2) is pointless. Our own prior art won't prevent the patents from being issued

    3) is a mistake. Each patent you discover is more work you have to do to avoid it, if that's even possible, and more chance of getting nailed for willfull infringement. Doing a patent search under these circumstances is like searching for mines with a metal probe.

    4) is good -- if you happen to know about the patent, you should avoid it.

    5) is fine, if you have allies you can trust. You probably don't.

    6) Pointless again. So you terminate their right to use their software. They're either a litigation company which does nothing, a single-product company which is trying to force the world to use their product, or a giant megacorporation. The first two won't use your software anyway, and the last has the lawyers to spit on your termination agreement -- not to mention the programmers to replace your software if necessary. Terminating the rights of patent-users is a feel-good measure only.
  • .... if a patent application is written using the right lingo making it sound complicated and NOT fitting the classifications of what CANNOT be patented then even swinging sideways in a swing will get patent granted ..... SOOOOO...

    Using this exact lingo technique but in describing something in terms fitting the classifications of what cannot be patented..... .... go figure....

    Time to study what qualities cannot be patented and why....
  • I think I've come up with a patent that could destroy Microsoft... Let's obtain a patent on the buffer overflow! Think about it...

    Oh damn... I forgot about prior art... Never mind...

  • One Simple Defense (Score:5, Interesting)

    by Euler ( 31942 ) on Monday July 26, 2004 @10:54PM (#9808089) Journal
    Ok, here's an idea I haven't seen floated around on Slashdot much... Use the closed-source model as a weapon against itself. Corporate software vendors are bound by their own dogma and/or investors to never let their source code out.

    Patents REQUIRE full disclosure. Think of a 19th century inventor like Edison. He has to fully describe his invention in a patent disclosure so that anyone in the field can make use of the invention. That is the spirit of a patent. It is required, or the patent is invalid.

    Fast forward to the 21st century. If a patent holder cannot fully disclose a working model and description of an invention (i.e. source code.), then the patent holder has violated the responsibilities of a patent holder and looses rights to the patent. Yes there are examples of this, and yes it is clearly spelled out in law.

    There are probably concepts that don't require source code to demonstrate, but most code-level innovations that geeks are worried about do. Furthermore, court action brings the possibility that source code could become exposed as evidence - something many companies may greatly fear. A company might not mind leaking some demo code for a single patent. But with a whole arsenal of patents, the burden starts to fall on the patent holder.

    This isn't a totally bullet-proof defense, but one worth exploring.
    • Insightful, interesting proposal that is a good argument against the existence of software patents.
    • [i]There are probably concepts that don't require source code to demonstrate, but most code-level innovations that geeks are worried about do.[/i]
      I disagree. Any algorithm can be described in plain english. Most algorithmic patents are described in pseudocode.
  • I have personal stories from both sides of the argument.

    Apple once sued Microsoft and HP for stealing their GUI (I know, most people do not remember that HP was involved in the lawsuit, but they were). One of the specific claims in Apple's suit related to "overlapping windows". I happened to have worked in a research group that had bought (in 1981) an Apollo workstation which had overlapping windows (not a GUI, each window had a UNIX(tm) style shell). I told one of the defendants about this and later hear

  • There are countries where software patents don't apply.
  • those of us who create FOSS will voluntarily register our products with some central group such as the FSF or EFF. I'll call this entity "FSF/EFF" for the rest of this rant... Maybe this registration will need to have some financial basis, and we all become "shareholders" - any developer registering their product loans the FSF/EFF $US1 on the understanding that this loan will never be collected. This registration will involve assigning all copyrights for the product we've developed to the FSF/EFF, who wi

  • No point in worrying. (Score:3, Interesting)

    by Ambassador Kosh ( 18352 ) on Tuesday July 27, 2004 @01:44AM (#9808767)
    I suspect that even hello world infringes on several dozen patents. Something like python, perl, slashdot, gnome, kde etc are likely to violate thousands to tends of thousands. So much pointless stuff has software patents for it that there is no real point worrying. When you are in the middle of a minefield it is too late to worry about safety.

    Overall I would just ignore all software patents. If you don't pay attention to any the odds are the penalties will be far far less. Also it makes it easier to invalidate a patent if you knew nothing about it when you infringed. Overall just try and write verty good software and get large businesses hooked on it. When it costs far less money to get the patent thrown out then it does to switch to some other system they will defend it.

    Also remember that proprietary software offers no real advantages here. Any proprietary product you use could be nailed by this at any time also and it could put them out of business so it seems the risks are pretty close to me but free software is more likely to be defended by a larger number of people.

    I suspect at some point free software is going to end up with some kind of get out of jail free type thing with resepect to patents like nasa has. Patents just won't apply to it since it hurts the society too much.
  • Ultimately, it's not going to be about tactics like patents and lawsuits and licenses. It's going to be about the populus and the freedoms they deserve and want. The problem is that they don't realize it currently, because the technology is so new that they only thus far believe they want "whiz-bang features".

    We, the faithful, already know what is "right". And, I believe, as the general public becomes more technologically knowledgeable (as has happened in the automotive industry in the last century), t

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