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Tim Bray Finds An Affinity Between Patents And OSS

timothy posted more than 9 years ago | from the but-the-broken-system-remains-broken dept.

Patents 209

Manuzhai writes "Tim Bray, of XML co-invention fame, is writing about software patents and Open Source software today. While he deprecates the 'business-method' patents like one-click ordering, he thinks some (Open) source code could tell the truth about a patent application: 'In fact, in an ideal world, I'd rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one.'"

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209 comments

fp (-1, Offtopic)

Anonymous Coward | more than 9 years ago | (#10512651)

suck it down

Coral Links (0, Troll)

Anonymous Coward | more than 9 years ago | (#10512656)

XML [nyud.net]
Software Patents [nyud.net]

first post? (0)

Anonymous Coward | more than 9 years ago | (#10512657)

I think this is a really good idea. But, the licence could not be the GNU GPL.

Re:first post? (-1)

Anonymous Coward | more than 9 years ago | (#10512830)

Not FP. http://yro.slashdot.org/comments.pl?sid=125475&cid =10512651. Suck it down.

At least... (2, Insightful)

mirko (198274) | more than 9 years ago | (#10512661)

sombebody's who doesn't agree proposes a constructive solution.
I like it provided there's no more 1-click-purchase involved.

Re:At least... (5, Interesting)

Halo1 (136547) | more than 9 years ago | (#10512753)

Plenty of alternatives [ffii.org] have already been proposed. The problem is that patent lawyer associations simply do not want any changes [typepad.com] that could substantially reduce the number of granted patents (see points 6 and 10).

Besides, this proposal has a problem of its own: software patents can include so-called "program claims". In that case, not just the use of a program which infringes the patent, but also the publication of such a program can be forbidden. Many software patents (and even non-software patents) are starting to include those.

If you start adding source code to patents, then those patent descriptions themselves can infringe on other patents. It's completely silly since the patent system is supposed to encourage publication of information, but nowadays it can also be used to for forbidding publication of information (because some people think software is the same as a "machine", instead of simply a description of something).

Eliminates patent benefit. (0, Troll)

Anonymous Coward | more than 9 years ago | (#10512662)

But doesn't that just eliminate the benefit of a patent?

Re:Eliminates patent benefit. (1)

BaldGhoti (265981) | more than 9 years ago | (#10512700)

Works for me.

Re:Eliminates patent benefit. (1)

Jim_Maryland (718224) | more than 9 years ago | (#10512813)

May work for you, but what about the company that invested in the discovery? Do you believe they should be compensated for the money invested in the discovery process? I realize some patented ideas are very obvious, but some are for ideas that required some real effort/money and should allow for some level of reward. I realize that some people are motivated to innovate for the sake of innovation, but many innovate for the rewards.

Re:Eliminates patent benefit. (0)

Jondor (55589) | more than 9 years ago | (#10512702)

No, imho the patent eliminates the usefullness of the open source implementation..

No, it doesn't (4, Interesting)

HBI (604924) | more than 9 years ago | (#10512711)

It's a way of pinning down patents to a specific algorithm. Some (most) of these applications are so broad it's difficult to figure out what the patent covers and what it doesnt. A working implementation makes this 100% clear.

If you use the code, if you use their patented stuff, you had best negotiate a license or be sued out of existence. However, if you want to code around the patent, this could be very useful.

Re:No, it doesn't (4, Insightful)

Mr Smidge (668120) | more than 9 years ago | (#10512853)

If you use the code, if you use their patented stuff, you had best negotiate a license or be sued out of existence. However, if you want to code around the patent, this could be very useful.

As much as this might disappoint the Perl hackers, there isn't always one way to do it. Sometimes there's only one good way of doing things (MP3 decoding comes to mind), and if the single-path bottleneck is patented then things might get difficult.

Why does free software have to be subjected to patents? It's not a commercial enterprise. If commercial entities stand to lose money from the competition of free software, surely that's their problem and not the free software coders'?

I think this could only work if the duration for which software patents were valid was shortened considerably (to, say, 3 years).

Re:No, it doesn't (2, Insightful)

pvanheus (186787) | more than 9 years ago | (#10512868)

Imagine the 'one-click' shopping patent - submitting an implementation hardly restricts the patent to a "specific algorithm".

And if you want to pin down patents to a "specific algorithm", how precise do you need to be? If you get too specific, patents effectively become almost identical to copyright. If you become too broad, you have... almost what we have now.

Imagine the code submitted along with a patent for a codec like MP3. Does your patent now cover just exactly that one way of encoding in MP3, or does it cover encoding in MP3 per-se? Or something in-between?

Re:Eliminates patent benefit. (2, Insightful)

maxwell demon (590494) | more than 9 years ago | (#10512712)

No, because despite having the source, you may not just use it due to the patent (after all you wouldn't even be allowed to use it if you had written it yourself). Therefore for the duration of the patent, it eliminates the benefit of open source. Of course after the end of the patent period it will recover the OSS advantages - unless at that time it's obsolete anyway.

Re:Eliminates patent benefit. (1)

DigitumDei (578031) | more than 9 years ago | (#10512764)

It would be nice if the patent law was modified to make it so anyone can use your patent, they are just forced by law to give a set percentage of their income from that patent to the patent holder.

I suppose this would be open to abuse, but the benifits from this as I see them are that patent holders cannot hold back use of the patent but they are guaranteed to gain from its use.

Re:Eliminates patent benefit. (1, Interesting)

Anonymous Coward | more than 9 years ago | (#10512812)

And just out of curiosity, what happens when you write a piece of software which uses 11 patents, all of which are guaranteed 10% of the profits?

Re:Eliminates patent benefit. (1)

DigitumDei (578031) | more than 9 years ago | (#10512845)

Well for one I don't think making it 10% would be silly.

But even today, writing something which uses a large number of patents becomes prohibativly expensive.

Of course they could put an upper cap on the amount, so 1% (pure thumb suck number) could never be more than $10 (another thumb suck number).

Re:Eliminates patent benefit. (0)

Anonymous Coward | more than 9 years ago | (#10512900)

Erm, I meant to say: I think making it 10% would be silly.

Re:Eliminates patent benefit. (5, Informative)

DigitumDei (578031) | more than 9 years ago | (#10512713)

No. The point is anyone can look at it, anyone can use it, if they want to make money off it, they have to pay up.

Given that there is concrete evidence for what the patent is about (the source code), it becomes much harder for companies to claim that patents have been violated. It also becomes harder for patents to be put forward for such simple stuff as "one-click purchasing", patents would then have to be awarded on innovative algorithms.

Re:Eliminates patent benefit. (2, Informative)

DrSkwid (118965) | more than 9 years ago | (#10512737)


A patent was supposed to grant you a monopoly on your invention in return for describing said invention such that when the King decided your monopoly expires then other members of the kingdom could share the knowledge.

Thus when source code is the documentation one could argue that presenting such code is *already* a pre-requisite.

Re:Eliminates patent benefit. (2, Insightful)

Anonymous Coward | more than 9 years ago | (#10512738)

In fact, this is more like the way patents work in real objects. Take a car engine for instance.

You can patent parts of the engine. Everyone can look at how you did it, and maybe create a better solution for it. The only thing patent protects the owner from, is using the same exact implementation in products that are sold for profit.

IMHO this is an excellent proposition

Why does everyone keep (2, Insightful)

warrax_666 (144623) | more than 9 years ago | (#10512918)

mentioning profits? Whether or not you are profiting from using a patented invention has nothing whatsoever to do with enforcement of said patent. Conditions of use stipulated by patent owners can be completely arbitrary, i.e. "you must release any software using this patent under an OSS license", "you must pay me $1 for every item sold", or "you must stand on one leg while using this patented algorithm". Of course, the latter is somewhat less enforcable, but still... whether or not the patent-using party profits is completely irrelevant.

Re:Eliminates patent benefit. (5, Insightful)

gbjbaanb (229885) | more than 9 years ago | (#10512770)

It doesn't have to be 'free open source', just open and source.

ie. The patent applicant not only has to write some code showing how his invention works in detail, but also has to show it to anyone who wants to see it. Those people who see it may not use it in their own applications (or they'd be violating the patent) so all the benefits of having a patent apply, but no-one would be able to patent anything that didn't have a concrete implementation (like 1-click for example).

I think that's the idea, but if you think about it - if you wrote code for 1-click, either you'd be restricting people from using the same techniques but they could implement 1-click in a different way, which I think does invalidate the idea of a patent after all.

Imagine I come up with a novel way of toasting bread, and I have to create my 'toaster'. If patents are to work, that'd have to stop other people from inventing the 'grill'. If that is true, then my way of implementing 1-click would stop other people from implementing 1-click in their own way.
The alternative, if my software only applies to my way of doing 1-click, then someone could legally invent the grill even though I have the toaster patent.

(I think I'll go lie down and wait for someone knowledgeable about patents to tell me what I mean :) )

Re:Eliminates patent benefit. (0)

Anonymous Coward | more than 9 years ago | (#10512930)

That's exactly how patents are suppose to work. You can patent a 'toaster', and I can buy it, pull it apart and see how it works. If I think I can come up with a better way, I can innovate and sell a 'grill', but I can't make a cheap toaster knock-off.

Patents were orginally designed to encourage new innovations and protect those that were made from being cloned, not as a way to block competition to hold onto a market... they actually have anti-monopoly laws to stop that.

Hum?! (4, Insightful)

Jondor (55589) | more than 9 years ago | (#10512679)

Sounds more like a "shared source" (look, don't touch) than "open source" to me.. Especialy the freedom part doesn't seem to be there as the open source implementation is needed to get a patent. So the contents is patented and unusable as open source.. Or did I mis something here?

Re:Hum?! (1)

Synistar (8654) | more than 9 years ago | (#10512736)

Although the code would be usable in areas not covered by the patent law of the coutry it was patented in.

Re:Hum?! (1)

JanneM (7445) | more than 9 years ago | (#10512858)

I think the idea was that free use of the patent would be granted for the open source implementation (pretty much a prerequisite of releasing it as OSS, as you point out). If you want to make a closed implementation, you'd have to negotiate licensing as usual.

Re:Hum?! (3, Informative)

cperciva (102828) | more than 9 years ago | (#10512964)

Or did I mis something here?

Aside from the second 's' in "miss", yes.

Patents are supposed to give sufficient detail to allow someone "skilled in the art" to reproduce the invention. Almost all "software patents" miserably fail at this task.

Requiring that working source code be provided would avoid the current situation where patenters obtain legal patent protection while still retaining effective secrecy.

Novell (3, Interesting)

Anonymous Coward | more than 9 years ago | (#10512681)

Well, with Novell now throwing its substantial patent portfolio [groklaw.net] behind open source, and Microsoft having promised they won't use their patents to crush open source, I don't see what all the fuss is about.

Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them.

Re:Novell (2, Informative)

Golthar (162696) | more than 9 years ago | (#10512735)

Where did Microsoft promise this?
All I can remember them saying is that they will use their patents as a source of revenue (which can be construed as not going after open source projects per se as there is little money there)

Microsoft Linux 2005 (0)

Anonymous Coward | more than 9 years ago | (#10512766)

Microsoft will likely adopt open source in 2005 and claim it invented Linux like it invented the internet...

The only two inventions of Microsoft's that I know are NETBUI/Netbios and NTLM hashes. I like them both as they are easy to hack'n crack.

Re:Novell (1, Interesting)

0x0d0a (568518) | more than 9 years ago | (#10512776)

Wow. Novell just did something that

a) They're good at.

b) It's hard for the FOSS community to do.

c) Helps the FOSS community a lot.

I think I speak for just about everyone when I give a hearty "Thanks!" to Novell.

Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them.

[Sigh] Yes, this is always where the argument gets uncomfortable, because you're forced into a position of attacking someone's current source of income, and that pretty much always makes people unhappy.

You're posting AC and didn't link to the patent, so I assume that you don't want people to know who you are. This is a little unfortunate, since I have to be abstract. However, I can say that, despite reading a number of software patents, I have seen not one idea that I would consider novel enough and intelligent enough in software to warrant a patent -- stuff that wouldn't have been produced without a patent in place and that actually helps mankind. The RSA patent qualifies as a non-trivial, very helpful patent, but the ideas behind RSA were developed without a patent as a driver, more as a personal interest. It is possible, of course, that RSA would not have been publicized in such an event, though, so I'll give RSA a pass. Other than that, though, I've seen a huge flood of bullshit patents. If I go to the USPTO and search for "computer", the hits that come up are a mass of ridiculous, obvious (in the conventional sense, not the legal sense unfortunately used to determine patent validity) patents.

So, I can't see your patent and say "that should really not be a patent". However, I don't understand why, if you have the ability to come up with a new mechanism, you can't simply implement it and make money from that.

Re:Novell (1)

Wolfbone (668810) | more than 9 years ago | (#10512878)

Please don't use RSA as an example of a 'good' software patent - it is one of the worst. The ideas behind it are purely mathematical and the cryptographic use of the algorithmic form of the trivial lemma rediscovered by R, S and A is truly simple and obvious.

Re:Novell (2, Insightful)

Wolfbone (668810) | more than 9 years ago | (#10512803)

Novell aren't throwing their patent portfolio behind open source, they're throwing it behind themselves and their customers. Microsoft has promised nothing substantial afaik and even if they had you'd have to have been born 10 minutes ago to swallow it.

As for your last remark, well... Perhaps if slashdotters relied on providing spamming services to viagra and penis enlargement companies, as I do, they wouldn't be so critical of spam.

Re:Novell (0)

JanneM (7445) | more than 9 years ago | (#10512884)

"Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them."

Not a very good argument, is it?

"Perhaps if slashdotters relied on closed source apps as their primary source of income, as I do, they wouldn't be so critical of them."

"Perhaps if slashdotters relied on heroin sales as their primary source of income, as I do, they wouldn't be so critical of it."

Re:Novell (3, Insightful)

maxwell demon (590494) | more than 9 years ago | (#10512940)

Perhaps if you didn't rely on a software patent as your primary source of income, you would be more critical of them.

Of course if your income depends on something, you'll be automatically biased. But the fact that you rely on it doesn't mean you should.

To make an extreme example: Say, in some country there was passed a law. This law states that you can get a killer license (which are sold in a limited amount by the state), and after aquiring that license, you are allowed to kill about everyone you like (with some exceptions for government members and similar). Some people bought those licenses and now legally make a living as professional killer. Of course there are people against this law, but the killers just say: "If your income depended on killing other people, you wouldn't be so critical about it." Now, would this killer convince you?

Note that I don't equate software patents with killing people (while pharmaceutic patents indeed can cause the death of people in some cases), but this is just to demonstrate that the fact that you rely on it as primary source of income doesn't tell anything about if it is right or wrong to have it.

Re:Novell (1)

julesh (229690) | more than 9 years ago | (#10512970)

Well, with Novell now throwing its substantial patent portfolio behind open source, and Microsoft having promised they won't use their patents to crush open source, I don't see what all the fuss is about.

Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them.


That's an entirely separate issue, about protecting OSS from claims of patent infringement.

This article, on the other hand, is about changing the way software patents are issued in order to make them more fair. And believe me, they aren't fair at the moment, because the inventions are usually described in extremely vague terms that inventors in other fields would not be allowed to get away with (and are usually required to produce detailed engineering drawings, etc, of the invention).

public patent license (3, Interesting)

AeiwiMaster (20560) | more than 9 years ago | (#10512688)

I think a way to handle the patent problem
is to make a patent license which work with patent law
as the GPL work with copyright law.

Re:public patent license (1)

cpt kangarooski (3773) | more than 9 years ago | (#10512921)

These exist, but they would not solve the problem.

Re:public patent license (1)

AeiwiMaster (20560) | more than 9 years ago | (#10512957)

Could you post some links, so I can verify your claim ;-)

Re:public patent license (2, Insightful)

cpt kangarooski (3773) | more than 9 years ago | (#10513104)

Here [216.239.41.104] is a google cache of part of a license. The relevant bit is the grant-back clause.

Basically it works like the GPL. A licensee can use the licensor's patented invention provided that, among other things, he grants back to the licensor a right to use any relevant improvement patents the licensee invents.

Tweak it a bit, and there's your GPL for patents.

But it doesn't help much, since the scope of patent protection is amazingly broad, and most people willing to invest into getting patents aren't likely to then want to let everyone use them. So so long as any GPL-Patent developer could still stand a good chance of infringing a non GPL-Patent invention, the problem remains.

With all due respect to Tim (-1, Troll)

Anonymous Coward | more than 9 years ago | (#10512689)

In this case, I find no evidence that he has any idea what he is talking about. If he has a better idea, he should articulate it.

Patenting of laws (5, Funny)

Anonymous Coward | more than 9 years ago | (#10512693)

Sorry this may seem slightly offtopic but.. How come John Kerry or GWB don't patent their ideas for laws? That way innovation in legislature can be boosted. Hell, you can then have companies R&D'ing effective legislation that can boost the economy. They can then sell the law to the politicians who will pay a either a one time lump sum or portion of the laws revenue to the company.

If patents boost innovation and improve quality of life .. why isn't this a practice for legislature as well. Also it will cut down on Democrats stealing Republicans ideas and vice versa .. and spur innovation within these parties.

Technically existing business process patents can be utilized to patent laws.

Anyway, nuff said .. I'm off to patent my universal healthcare idea.

Re:Patenting of laws (3, Interesting)

Halo1 (136547) | more than 9 years ago | (#10512800)

People mod this as funny, but why not? Patent-related business methods [dailyjournal.com] (implemented in software, of course) are already getting patented now. I guess you could see the introduction of laws also as some kind of business method in certain cases (DMCA anyone?)

Anyway, not all lawyers seem to be happy with this, but as Karl-Friedrich Lenz writes: [lenz.name]

If in their view software patents are so desirable, the patent attorney community should eagerly volunteer to be the first in line for the fantastic technological advances they promise everybody else. Then, after the great leap ahead in patent attorney productivity gained by giving them patent protection for themselves becomes clear, we can consider gradually expanding the system to other areas.

Patent system really is broken. (3, Insightful)

Jaywalk (94910) | more than 9 years ago | (#10512706)

The article argues that the patent system is not broken and that the only problem is the implementation. That's not a consistent argument because the way it's implemented is part of the system. Even his opening example, where an individual programmer comes up with an innovative algorithm and wants to patent it, contradicts the premise. The way the current patent system is written, the ante for playing the patent game (in terms of lawyers and fees) is too high for most individual players or small businesses. Before patenting software can even be considered, the patent system itself needs fixing. There is a good alternate proposal for this on Groklaw [groklaw.net] .

I understand his point, but... (3, Insightful)

atrizzah (532135) | more than 9 years ago | (#10512718)

I still think that software patents stifle innovation. The average useful program is made up of numerous components, not like an improved butter churn. Imagine if every little part of a program were patented: people would be way too caught up in liscensing fees to be able to write anything, especially a large application. If the patent system were to ever reasonably be applied to software, it will definitely need standards, something it sorely lacks now.

I do agree with him that anything software that is patented should be open source. At least this way, the company is forced to essentially put their idea in the public domain. Don't they make inventors of mechanical systems publish a blueprint?

I sure hope we get this figured out soon, because with multibillion dollar lawsuits flying around, I don't see how even giant corporations can feel safe doing business here in the US

Re:I understand his point, but... (1)

17028 (122384) | more than 9 years ago | (#10512811)

Yes, schematics were/are often submitted as part of the patent application when dealing with mechanical devices, if it's needed for the person reviewing the application to understand how it works. I think the problem is that the patent office isn't savvy enough to realize when a software patent is too broad. Requiring some form of an actual implementation would help there.

Self-Contradicting? (1)

Trolling4Columbine (679367) | more than 9 years ago | (#10512721)

"I'd rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one."

Aside from whether software patents are good or bad, wouldn't that totally defeat the purpose of getting a patent in the first place? Why would people pay the patent-holder royalties if they can get the source for free?

Maybe I just don't understand what he's saying...

Re:Self-Contradicting? (1)

SoTuA (683507) | more than 9 years ago | (#10512784)

Because, um, it is patented, and they can't use that source without licensing the patent?

The benefit of this would be that you can see the patent as a working implementation, and decide if you want to license it or code around it. Plus, a working implementation makes a patent much more precise than "a method for doing something in some place".

Re:Self-Contradicting? (1)

sangreal66 (740295) | more than 9 years ago | (#10512835)

They'd pay, because you can't use it otherwise. The entire idea behind patents is to grant the inventor a limited-time monopoly in exchange for telling everyone how they did it. As it stands we grant the monopoly but don't get anything in return. Personally, I think software patents of specific implementations, not ideas, are perfectly acceptable. The system is definitely broken, however, and I believe this is a reasonable solution.

Re:Self-Contradicting? (2, Insightful)

tigertiger (580064) | more than 9 years ago | (#10512860)

Aside from whether software patents are good or bad, wouldn't that totally defeat the purpose of getting a patent in the first place? Why would people pay the patent-holder royalties if they can get the source for free?
No, that's exactly the idea of both patents and copyrights. They would have to pay because it is the law, however difficult that may be to enforce.

A patent is a promise by the state to enforce your exclusive rights on an invention in exchange for your publishing its details. Similarly, you are granted a copyright by the state on something in exchange for publishing it. In both cases it has to be "useful" to be protected - you cannot patent trivial ideas as you cannot copyright gibberish.

If you could just keep the inner workings of your invention secret, you would not need a patent to make money out of it, but then nobody else could learn from it and improve upon it. In that sense, open source and patenting are indeed the same idea .

Re:Self-Contradicting? (1)

julesh (229690) | more than 9 years ago | (#10512891)

They can get the source. They still need to pay for the patent license if they want to use it for anything other than personal non-commercial research.

Patents are big business for Big Business (2, Interesting)

joelethan (782993) | more than 9 years ago | (#10512728)

While the lawyers get rich and the large corps spend their small change in the patents courts it's the small innovator who continues to suffer.

Just how long do patents last on software, 75 years(ish)? It strikes me that innovation should be rewarded by a short patent of say 7 years then the IT community benefit straight after.

Re:Patents are big business for Big Business (2, Informative)

cpt kangarooski (3773) | more than 9 years ago | (#10512968)

Since we're still close enough to the transitory period, the patent might last 17 years from issuance or 20 years from filing. (the latter is the newer term)

Good idea (0)

Anonymous Coward | more than 9 years ago | (#10512729)

That is a good idea! It sure would prevent the frivolous use of patents today.

Mind you, if they don't do something about useless patents the system will collapse removing the problem all together.

Open-sourcing patented sofwtare is pointless (1)

JaredOfEuropa (526365) | more than 9 years ago | (#10512743)

They'd incent the inventor to share the goodies and the whole world would end up improved
How would revealing the source help? It would save you the effort of reverse engineering, but you would still not be (legally) able to use whatever it is you were interested in, without obtaining a license from the inventor.

Re:Open-sourcing patented sofwtare is pointless (1)

Al Dimond (792444) | more than 9 years ago | (#10512865)

Exactly. It would still allow the holder to license it however it wants, but would concretely explain just what it is that the patent is supposed to cover. It would eliminate the ability to create broad patents and ensure that the patent holder actually has the ability to make something useful with the patent and not just hold a submarine/defensive/offensive patent portfolio.

say who? (1)

tomstdenis (446163) | more than 9 years ago | (#10512744)

XML "co-invention fame"? XML isn't exactly something that um... original. For crying out loud it's just angle brackets and a small grammar!

That's like saying

Tom St Denis [of key=value pair co-invention fame]

I think we need to stop deifying every nutjob with a RFC.

royalties as a percentage of sales price (2, Informative)

another blockhead (515009) | more than 9 years ago | (#10512749)

A recent discussion on Groklaw included the idea of mandating that royalties on use of patented software must be based on a percentage of the sales price. Any percentage of zero is a reasonable amount to pay for including patented algorithms in free software. I couldn't care less what impact this might have on proprietary software makers; let them all sue each other into oblivion if that's what they do best.

Re:royalties as a percentage of sales price (1)

julesh (229690) | more than 9 years ago | (#10512913)

A ridiculous idea. Say that the MPLA (who arrange licensing of patents on MPEG) set the royalty for licensing MPEG2 at 5%. They also set the royalty for licensing MPEG4 at 5%.

I now create two products, a media player than can play MPEG2 content, and an extended one that can play both MPEG2 _and_ MPEG4 content.

I price the first at $200, so MPLA get $10 per unit. I price the second at $300, because it's a lot better. MPLA get $30 per unit.

Why do they get 3 times as much money when I've only used twice as much of their IP?

What is he smoking? (1)

k98sven (324383) | more than 9 years ago | (#10512750)

How can you have an 'open source' implementation of something which is patented?

If it's patented, you'd need a license to develop the program further. You'd need a license just to run it.

How is that 'open source'?

Re:What is he smoking? (1)

julesh (229690) | more than 9 years ago | (#10512838)

How can you have an 'open source' implementation of something which is patented?

If it's patented, you'd need a license to develop the program further. You'd need a license just to run it.

How is that 'open source'?


Patented inventions can be used for 'experimental non-commercial' purposes (e.g. educational use) without a licence. It isn't open source in the way we currently understand it, but there is scope for this to be useful.

Re:What is he smoking? (1)

cpt kangarooski (3773) | more than 9 years ago | (#10513013)

The experimental use exception is amazingly narrow. Not all, in fact, not most, educational uses are within it.

Re:What is he smoking? (1)

tigertiger (580064) | more than 9 years ago | (#10512909)

If it's patented, you'd need a license to develop the program further. You'd need a license just to run it.

You need a license to make commercial use of the invention. You can still make an improvement on an invention, and patent the improvement - people wanting to use the improved version would have to pay both you and the original patent holder.

At least German copyright law exempts both private and research use of a patent from licensing. The idea is basically, only if you use it commercially, the patent applies. So patents would kill the Open Source business, but not the original hobbyist-based open-source development model. An university research and teaching would almost certainly been exempted, as the whole idea of publishing a patent is that it can be learned from.

ADic4 (-1, Troll)

Anonymous Coward | more than 9 years ago | (#10512761)

Want them there. United States. Accounts for less in ratio of 5 to Discussion I'm Daaren Reed, which to stick something addresses will Supplies to private You don't need to one common goal - battled in court, Usenet is roughly corpse turned over task. Research architecture. My could save it Are there? Oh,

does source code actually violate a patent? (2, Interesting)

gr8_phk (621180) | more than 9 years ago | (#10512774)

I've been considering an unusual idea. Source code is the natural language to describe a software patent. If source code is only a description of the patent, and an executable running on a machine (which seems to be required to complete the "patented device") is required to be a violation... Wouldn't software distributed only as source code be non-infringing?

As I recall, you are also free to use patented stuff in your own home without paying for it - only commercial use would actually infringe.

IANAL, and while this seems like an attempt to weasle around the system I rather like it.

Re:does source code actually violate a patent? (1)

micromoog (206608) | more than 9 years ago | (#10512844)

That's all true. You're more than welcome to write your own open-source one-click shopping system, to use in the privacy of your home.

Re:does source code actually violate a patent? (1)

tigertiger (580064) | more than 9 years ago | (#10512981)

Wouldn't software distributed only as source code be non-infringing?

That is a famous discussion even beyond patent law, namely whether source code should be protected as free speech. It might well be.

Then open-source code would be legally privileged over binary executables - something Richard Stallman must have been dreaming about for years. Make it actually illegal to distribute binaries...

For an example of the shallow border between source code and constitutionally protected speech, have a look at the Gallery of CSS Descramblers [cmu.edu] .

Re:does source code actually violate a patent? (1)

maxwell demon (590494) | more than 9 years ago | (#10513109)

But if it were illegal to distribute binaries ... how would you get the compiler to compile your source code with? Well, of course as source, which you would compile ... how?

Re:does source code actually violate a patent? (1, Informative)

Anonymous Coward | more than 9 years ago | (#10513101)

q: Does Source Code actually violate a patent?

a: It might if it is eventually converted into a working product. From the Eolas v. MS case:

The intellectual property at issue in this case, namely the Windows source code, is contained on a computer disk, known as the "golden master." Microsoft
provides this disk to foreign Original Equipment Manufacturers ("OEMs") pursuant to intellectual property licensing agreements for their use in making and selling abroad computer products containing Windows. According to Microsoft, new units of Windows code are created abroad when the foreign OEMs, for each unit, replicate the Windows code in its manufacturing facility using the single "golden master" and installs these new units of replicated code on a computer useable medium, such as a computer disk or hard drive, which is supplied by the foreign OEM. Microsoft argues that this "golden master" is not a component of the foreign sales products within the meaning of Section 271(f).
The closest cases are W.R. Grace & Co-Conn v. Intercat, Inc., 60 F. Supp. 2d 316, 319-21 (D. Del. 1999) and Lubrizol Corp. v. Exxon Corp., 696 F. Supp. 302, 325 (N.D. Ohio 1988). In these cases the defendants sent chemical products
abroad that were combined as supplied with other compounds into compositions that would have infringed had the combination occurred here. Those judges found that there was liability under Section 271(f). Only one of these opinions offered a rationale but both relied on what they, and I, agree is the plain language of the statute.
Microsoft argues that the "golden master" is distinguishable from the chemical products in these cases. It asserts that the disk is analogous to the formula for those chemicals sent abroad, not the chemicals themselves and
therefore, the disk is not a component of the allegedly infringing product.
The "golden master" is like a chemical formula in that it is a series of directions (commands) written down so that it can be used again and again. If followed, the formula produces a result which is desired by its user or purchaser.
The "golden master" is unlike a chemical formula because its contents are an operating element of the process which produces the result which is desired by a user or purchaser (like Paranox 300 and Paranox 600 when added to other ingredients made a better oil additive in Lubrizol).
A chemical formula can be memorized (as many complex recipes are) and discarded. The source code has to be installed, never to be discarded.
A philosophical argument can be made that installation of the source code is akin to memorizing it. But I think the recipe memory, of which we speak (in ordinary language) is not what we mean when we speak of computer memory.
The machine does not 'remember'--it holds code and, unlike the human, that is all it does. The result desired by the user of the compound product of the programmable machine (a computer) and Windows code is made from code and
hardware together. That which invokes the operation to secure a result (i.e., my
finger pushing buttons) and the devices connected to the buttons are, in the important sense here, external to the basic product. So too are the devices which input data. That which displays the machine's output is external in this way. The devices which start the machine, input data, or display output are essential to the usefulness of the machine to users. Yet if the laptop on which I am writing this opinion had a power button stuck in the on position, a keyboard covered by a solid locked plate, and the screen was dead, but "my laptop" is still there. What is there is the internal hardware and the source code which operates, provides utilities, can browse and execute applications.
This analysis is not metaphysical. It is an analysis of language. It is appropriate because the goal is to find the meaning of ordinary language as it is used by lawyers and judges when deciding whether something is made and, if so,
where it is made. Where code is installed on a disk or a hard drive to be put into a programmable machine, I conclude that source code in a computer product like my laptop is, in law, the legal equivalent of a piece of computer hardware and not the legal equivalent of a chemical formula.
In a legal sense, a source code is a made part of a computer product. In contrast, a chemical formula is discovered rather than made, and is not part of any product.


This ruling will likely be revisited in the pending appeal.

q: are you free to use patented stuff in your own home without paying for it? - only commercial use would actually infringe?

a: As long as your home use does not lead to any sort of financial gain (Madey v. Duke):


However, it is on the experimental use issue that the universities are most upset. Duke apparently argued that as a non-profit educational establishment its activities were inoculated against patent infringement as long as they were solely for research, academic or experimental purposes. The Federal Circuit disagreed and pointed out that in Roche v. Bolar[3] and other cases it had held that although an experimental use exception as crafted in the nineteenth century continued to exist, it was a very narrow one for example "to satisfy idle curiosity or for strictly philosophical enquiry". The court went on to state:

regardless of whether a particular institution or entity is engaged in an endeavor for commercial gain, so long as the act is in furtherance of the alleged infringer's legitimate business and is not solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry, the act does not qualify for the very narrow and strictly limited experimental use defense. Moreover, the profit or non-profit status of the user is not determinative.

The court noted that even projects undertaken without direct commercial application often "unmistakably further the institutes legitimate business interests ... These projects also serve for example to increase the status of the institution and lure lucrative research grants, students and faculty.


Sun employee peddles Sun line, (yawn) (3, Interesting)

hopethishelps (782331) | more than 9 years ago | (#10512791)

From Bray's article:

Suppose you're a keen young programmer and you've figured out a keen new algorithm for securing a communications channel or crash-proofing a database or animating an MMPORG monster.

He goes on to suggest "well, why not" a patent.

He expects us to believe that he doesn't realize that "a keen young programmer" hasn't got the tens of K dollars to get a patent, and certainly hasn't got the millions of dollars needed to defend a patent against wilful infringers.

I think the article is probably just astroturf; after all, Bray is now a Sun employee and the Sun's line is that software patents are a Good Thing.

Good troll (0)

DogDude (805747) | more than 9 years ago | (#10512846)

I like your troll. You don't agree or don't understand or don't want to admit he's right, so you suggest that he's a corporate mouthpiece. Fantastic. How do you propose that "keen young programmers" can make a living from a software invention? [Keep in mind that you should tell us who you work for in your response so we can call you a "shill" or something else appropriate if we don't agree with you].

Re:Sun employee peddles Sun line, (yawn) (1)

julesh (229690) | more than 9 years ago | (#10512867)

He expects us to believe that he doesn't realize that "a keen young programmer" hasn't got the tens of K dollars to get a patent

I believe you're out by an order of magnitude. You don't _have_ to hire a patent attorney to get a patent. It only improves the chance of being successful, as they know how to phrase them to get them through.

and certainly hasn't got the millions of dollars needed to defend a patent against wilful infringers.

At this point, he would show his patent and the infringer to potential investors. Sooner or later, one would say, "yeah, looks like you can nail those bastards" and agree to finance him for a hefty cut of the proceeds. It might work.

SCO business model (0)

Anonymous Coward | more than 9 years ago | (#10513043)

At this point, he would show his patent and the infringer to potential investors. Sooner or later, one would say, "yeah, looks like you can nail those bastards" and agree to finance him for a hefty cut of the proceeds. It might work.

SCO business model, sure, nothing broken here.

Re:SCO business model (1)

julesh (229690) | more than 9 years ago | (#10513123)

SCO business model, sure, nothing broken here.

Except what I'm not talking about is fabricating claims that are highly unlikely to be true and somehow conning people who ought to know better into believing them.

Copy...r...i...g...h..t... (1)

http101 (522275) | more than 9 years ago | (#10512806)

I don't believe being bound to an 'open-source' rule would justify getting a patent. One should not be forced to supplement confidential product plans or company "trade secret" in order to apply for a patent. That's like buying a car, test driving it, insuring it, washing it, then getting a license for it. Its back-ass-wards. When other companies decided to make similar products of another company, they reverse-engineered the product and changed enough of the architecture and called it their own.

Re:Copy...r...i...g...h..t... (1)

julesh (229690) | more than 9 years ago | (#10512947)

One should not be forced to supplement confidential product plans or company "trade secret" in order to apply for a patent.

Err, that's exactly how the patent system is _supposed_ to work. In order to get a patent you supply your "trade secret" details of how your invention works to the patent office, and they give you a patent in exchange for the right to publish those secrets.

No arguments for Open Source implementation (1)

g_bit (253703) | more than 9 years ago | (#10512822)

Can you find one argument in that article for the reason *why* an Open Source implementation would help?

The author makes a nice argument for the existence of patents in general and for software patents, but I didn't see anything in the way of telling my why the hell I would want to Open Source my new invention.

Well, I guess the words Open Source showed up so it must be news.

Re:No arguments for Open Source implementation (1)

Deorus (811828) | more than 9 years ago | (#10512977)

> Can you find one argument in that article for the reason *why* an Open Source implementation would help?

According to the article, the author complains about how software patents are implemented in US, so the only way to avoid the US patent mess in other countries would be to disclose the source so that everyone could see and avoid copying.

There is a big disvantage with this proposed patent implementatiom though: one may not be able to implement THAT algorithm, but one can still use the idea they got from it with their superior programming skills to make a 10 times faster algorithm which didn't look anything similar to the original one besides producing the same results.

Give no ground. Not an inch. (5, Informative)

Featureless (599963) | more than 9 years ago | (#10512825)

I read the article. It's basically incoherent, or rather, it doesn't give enough details to even properly evaluate the idea. One thing's for sure. It does not answer any of the major, show-stopping problems with software patents.

If you have a patent office staffed with geniuses, gifted with eidetic memories, even if every patent holder submits open-source code along with the patent, you will still have a body of hundreds of thousands or millions of patents, and hundreds or thousands more each day.

A software developer will have to read the entire patent database, and then stay current with all the new applications. Obviously this is physically impossible. The end result? Every piece of code is a ticking patent timebomb.

"Hello, sir. I see you are violating my patent on dereferencing pointers on Tuesdays. I assure you this was extremely innovative in 1992. My fee is $1,000 per asterisk, of I will see you in court. By the way, a little hint about court: it will scare off your customers, cost you millions in attorneys fees even if you win (and you might lose!), and take ten years. Your choice."

Software patents are purely an anticompetitive tool designed and maintained exclusively for a few large corporations who just happen to have created large, shockingly broad software patent portfolios. It allows them to sue any small competitor out of existence, and threaten even larger competitors. They have already been seriously destructive to our economy, and their effect on innovation, and eventually America's place in the global technology industry, is an ongoing catastrophe.

There is no possible compromise. The system is inherently, obviously broken - a ridiculous legal con game. Software patents must be repealed, or our technology industry will wither and die (and happily be replaced by Europe - or, if Europe isn't smart enough to steer clear of them, in Asia).

This shouldn't need a change in the law. (1)

91degrees (207121) | more than 9 years ago | (#10512826)

Inventors are already required to disclose how the invention works to someone skilled in the domain of the invention. Hence, such a diagram should be either in a programming language, or some sort of standard design (e.g UML). For some reason, a vague, verbose wordy description seems to be accepted by the USPTO.

Makes sense to me. (1)

Anonymous Coward | more than 9 years ago | (#10512828)

If I were to try to patent a car part, I'd have to show a schematic of the part to the Patent Office, and after that, the schematic would be on the public record, forever. Seems like software patents should be the same: Want a patent? Publish your code or just live with only having a copyright on the binaries. This way, when the patent expires, we'll still have the code out there for inspiration. Also, if the patent is public record, it would be easier to tell if someone was using stolen code. Give the disputed code to an arbitrator, tell them how to compile it, diff the binaries to make sure it's the same as the commercial product. As long as the source that generates the product isn't using code that's the same as the patent code, no problem. The SCO case closed would be closed in the time it takes to grep the linux source.

Or am I missing something?

Not sure this will help (3, Interesting)

nels_tomlinson (106413) | more than 9 years ago | (#10512833)

The patent office used to do something like this: they once required that every patent be accompanied by a working model. They spent a lot of money over the years storing those models. Today, they only require models of eternal motion machines. There is little downside to Bray's proposal, since the storage space for the software models would be negligable.

Bray says that software patents do a lousy job of disclosing inventions: they are (sez he) ``notoriously inaccurate, incomplete, and unreadable.'' He assumes that the patent office, which can't even seem to read the patent applications, would be able to test the software and determine whether it was indeed a functional and useful implementaion. That sounds optimistic.

Furthermore, any patented methods and the code which embodied them would be of no value to Libre software until the patent had run out. After all, public domain implementation or not, you still have the problem of a license for the method!

The story repeats (1)

Deorus (811828) | more than 9 years ago | (#10512842)

What the author speaks about here is in my opinion the same Microsoft tried to do in regard to the Sender ID standard draft, and it did not work because according to the (well fundamented, in my opinion) Apache Software Foundation [apache.org] 's position [apache.org] (just to name an example), the problem happens when people insist that there must be end users. One of the main goals of free software is to allow everyone who gets a copy of a program to be able to do whatever he wishes with that program, provided that credits to previous changes remain intact, new changes are disclosed, and the receiving party gets exactly the same rights. A patent system is closed in respect to this problem, because the receiving party is forced to ask the original author of the patented software for a royalty if he wishes to make changes and/or redistribute.

Patents should protect individual inventors (0)

Anonymous Coward | more than 9 years ago | (#10512859)

...not big companies.

'In fact, in an ideal world, I'd rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one.'"

That's great, but now you've raised the bar so that anybody with a good idea can't patent it unless they have the cash to hire programmers. Not a problem for big companies, but a problem for individual inventors. That's why patents don't require an implementation - because the patent is there so you can get funding to build the implementation(s).

patents and oss inconsistent (1)

tonythepony (716819) | more than 9 years ago | (#10512861)

I think the author has some fundamental misunderstandings about patents. They are statutory granted monopolies that allow you to decide how your "invention" is used. Therefore, if you release your patented software under an open source license, your patent is now meaningless since the oss license now says how your software can be used. This may be a good thing in that everyone can benefit and no one else can patent it, but this is not what the author is saying. The author seems to thing that you would still get the benefits of the patent, which is incorrect.

Re:patents and oss inconsistent (1)

vidarh (309115) | more than 9 years ago | (#10512929)

You seem to be misunderstanding it too. The point of patents is that you get the time limited monopoly in return for explaining how your invention works, so that when the patent expires everyone can start using the same invention.

Releasing your patented software under an open source license would only make your patent meaningless if the license explicitly includes a license of the patent as well as the code - otherwise the patent would prevent you from legally using the software.

One of the many problems with patents today is that the patent claims usually are so vague they can apply to a very broad class of implementations, and can be stretched to cover ideas that wasn't conceived when the patent was filed.

Requiring an "open source" implementation would at least solve that one problem, if the patent protection is limited to exactly the methods demonstrated by the programs. It would also make it hard to obscure how the invention works, and therefore make patents much more useful, and make it easier to try to work around them.

Re:patents and oss inconsistent (1)

tonythepony (716819) | more than 9 years ago | (#10513006)

The assumption I'm making is that the software is deomstrative of the patent. Therefore using the software would be using the patented "invention". Therefore a license that lets everyone use the software (which an oss-approved license would) would let everyone use the patent. Therefore your power to pick and choose how your patent is used is gone. I agree with what you're saying about the problems of patents - and that an open source implementation would make the patent less vague - but it would also make its power moot. Note, I still think an oss license is better than exercising your patent however.

Re:patents and oss inconsistent (1)

I confirm I'm not a (720413) | more than 9 years ago | (#10512967)

Therefore, if you release your patented software under an open source license, your patent is now meaningless since the oss license now says how your software can be used.

Strictly speaking, the OSS license says how *one* implemenation of your patent can be used. It's like Tomcat [apache.org] - Tomcat's the reference implementaion of a "Java Servlet Container", and it's OSS, but there are other - proprietary and OSS - Java Servlet Containers out there. I believe Sun (someone more clueful than me chime in if I've got this wrong) initiated work on Tomcat (nee JServ) and then handed it over to the ASF, but that in no way stopped Sun from working on other J2EE projects - even projects very similar to Tomcat.

Affinity. Use a dictionary. (0)

Anonymous Coward | more than 9 years ago | (#10512862)

0. A *similarity*. "There was an affinity between Windows 95's and MacOS's trash cans".
1. A natural attraction or feeling of brotherhood. "Jon had an affinity for Pat".
2. Being related by Marriage.

None of which is what /. editors meant.

My Software Patent Sucks (0)

Anonymous Coward | more than 9 years ago | (#10512866)

I don't want to start a holy war here, but what is the deal with you Software Patent fanatics? I've been sitting here at my freelance gig in front of a Patented system (a 3Ghz w/640 Megs of RAM) for about 20 minutes now while it attempts to copy a 17 Meg file from one folder on the hard drive to another folder. 20 minutes. At home, on my OSS 2Ghz running Mandrake 8, which by all standards should be a lot slower than this Software Patented system, the same operation would take about 2 minutes. If that.

In addition, during this file transfer, my Software Patented browser will not work. And everything else has ground to a halt. Even my Software Patented texteditor is straining to keep up as I type this.

I won't bore you with the laundry list of other problems that I've encountered while working on various Patented Software, but suffice it to say there have been many, not the least of which is I've never seen a Patented system that has run faster than its OSS counterpart, despite the Patented System's faster chip architecture. My Zarus with 8 megs of ram runs faster than this 3Ghz patented machine at times. From a productivity standpoint, I don't get how people can claim that the Patented Software is superior.

Software Patent addicts, flame me if you'd like, but I'd rather hear some intelligent reasons why anyone would choose to use a Software Patent over other faster, cheaper, more stable systems.

Re:My Software Patent Sucks (0)

Anonymous Coward | more than 9 years ago | (#10513119)

In Soviet Russia, 17 meg patents files you!

Tim Bray Is.... (1)

mlauzon (818714) | more than 9 years ago | (#10512894)

Tim Bray is a very helpful man, when I was trying to design a programming language based on XML he answered a few of my questions...unfortunately because I couldn't get any Developer support it went nowhere!

I RTFA'd (1)

Sheepdot (211478) | more than 9 years ago | (#10512916)

I read the article and actually see nothing he covered that is anything different than patents now. I'm not a patent lawyer though. I suppose copyright law doesn't require an open source version, but patent law usually requires a working prototype of whatever it is that you are going to patent. It's the reason why I don't own the patent on the windowed refrigerator, even though I originally came up with the idea in class when I was 7. I knew it'd be possible one day, but I didn't know how.

To get straight to the point, though, I don't like this suggestion at all. The copyright and patent system is inherently flawed and stifles competition far more than it dulls innovation. Innovation is driven by *need*. By patenting a pair of pants, you can get down to the very atomic makeup and they are actually quit different from each other. The only difference is, what we "see" is two pairs of the same kind of pants, so when the two owners of said jeans come in and complain about each other stealing the others idea, we somehow came to the conclusion that the "first guy" is the one that owns the patent.

It's easy for us, as programmers and scripters, to know why software patents are horrible. It's because we will run into software on a regular basis that is something that we *can* make and indeed *could* have. If people were patenting and copyrighting these ideas, they'd be basically getting the government thugs to route out competition.

What kind of an environment is the US government promoting when it can't see that it's being "used" to enforce anti-competitive policies?

We already have (4, Insightful)

sytxr (704471) | more than 9 years ago | (#10512934)

obfuscated source code contests> . [fact-index.com]

( It should be clear to us that, without very strong safeguards against it, that is what patent lawyers would tend to make out of writing source code for software patent applications, just like what they have made out of the descriptive text for normal patent applications. )

Patents and time. (3, Interesting)

malkavian (9512) | more than 9 years ago | (#10513041)

Software patents, aren't in themselves bad. The thing that isn't addressed is their timespan.

Patents for physical things took into account the fact that they needed to be drawn, engineered, factories built to create them, distribute them, have them installed where necessary, and then cover them through a fair lifespan.

Take, for example, valves on a chemical plant. A new and innovative one could be thought of and patented.
Then, the factories set up to produce it (say a year from patent perhaps, now safe to give the designs under contract, as it's patent protected), then it needs to be marketed, so, perhaps 2 years from inception to starting to get used. Initial tests and usage in industry, say, 4-5 years until it really starts to be used industry wide.
Lifetime of a valve, perhaps 10 years if they're in a harsh environment, more if not. So, you get in one round of replacement of the same thing.
But, the timescale there for a physical item that's supposed to last 20, 30 or more years isn't terrible. It's still VERY useful in 30-40 years.

Now, software, protected for the same duration.
Patent is drawn up. Software out the door days later, as there are no real tooling and production costs (relatively speaking). It's possible for sales to ramp up and reach market saturation within a year, if it's something innovative and useful. Industry acceptance and having it treated as 'old and established' within 2.
Within about 5 years, it's (usually) classified as obsolete.
So, for the next 20 years after being obsolete, it's holding back the market from developing it's successor, because it's patent encumbered, and license fees need be paid on it. So, the next generation flounders.

If Patents took into account the average obsolescence period of the market, and allowed a patent for the given period, things would work nicely.
Once it's in the 'getting a little old and clunky' period, anyone can then make a free implementation of it, or perhaps design it's successor based on the original. OR a proprietary new version, or whatever! But it keeps things moving, which is what patents were meant to do all along.

5 years for a software patent? Sure, that sounds fine. Maybe 7 or 8 at a push. If you've not made money off an idea in that time with a captive market in the tech game, you're probably not going to.
But the 5 years is enough to allow something to prosper, while ensuring that you keep thinking of the next idea, or allowing someone else to.
And perhaps it would stop all these patent shops churning out nothing in the knowledge that they've got 20 odd years to sit on it and hope someone comes up with something they can shoehorn into what they've got on their papers.

5 years is a lot less time, enough, really, to say "If you're not going to use it, then you've had your chance to, now let someone else actually do something good with the idea"..

All wrong.. (1)

sadr (88903) | more than 9 years ago | (#10513069)

He misses the next logical chain in the arguement.

To apply for COPYRIGHT registration on code, you should have to submit the source code. It would still be copyrighted, so people can't create derivitive works from it legally. But shipping copy-protected executable code certainly doesn't promote the progress of science and the useful arts. Having the source code available does.

open vs. free (2, Insightful)

Tom (822) | more than 9 years ago | (#10513132)

RMS must be rotating in his... uh... bed or so.

This is where "Open Source" meets "Free Software" and the two don't agree, not in the least.

Free Software is incompatible with patents, both from the license terms (the GPL even explicitly mentions patents) and the spirit (sharing of knowledge).

Open Source allows such abominations as "you can look, but if you copy we'll sue you from Alaska to Hell".
Isn't that essentially what DRM is trying to do?

The idea is nice at first glance, much like patents of old required a working mechanical model. It does fit well to the basic idea behind patents, which is essentially "tell us all how it works and we'll give you some rights for teaching us".
It doesn't fit with Free in any sense. Whether or not it fits with Open Source depends on your philosophy. Mine certainly isn't one of prison-but-with-walls-of-glass. I prefer not having to live in a prison at all.

Adaptation (4, Insightful)

mreed911 (794582) | more than 9 years ago | (#10513170)

The problem with the current patenting scheme as it applies to software is that it's a conceptual patent. Patents, however, were meant to protect applications of concepts.

Take, for instance, the fire service. My dad's a career fireman and sits on several technical committees that draft and approve the specifications for different types of equipment used in firefighting (specifically, breathing apparatus). Every time the specification changes (recently, to include a visual warning device in the face mask to display the percentage/amount of breathable air left in a tank), the vendors have to build new functionality into their gear. Each one has to design something that meets the standard, and each one patents their implementation of the standard, or licenses an already patented mechanism that meets the requirements. Point being, the vendors can't patent the CONCEPT of having a heads-up display, just their particular electro-mechanical implementation if it's something novel.

Software, on the other hand, has been allowed to patent a CONCEPT (such as one-click ordering) rather than a particular implementation simply because they claim that exposing their particulars with respect to implementation (source code) would give someone a competitive advantage against them.

Hogwash. In fact, it's easier to modify a physical device enough to get a new patent... it's harder to modify software to make it apparently distinct from the original patented source, esepcially if it's written in another language where someone is going to make comparisons not on a line-by-line basis but a method-by-method basis, and get into comparative analysis.

I agree that the system is broken and needs to be fixed... and I think the way to do that *is* in fact to require software patents to include their source code as well as a solid description of the methods used (perhaps an object model, as well?)...
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"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>
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