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Red Hat Seeks Limits on Software Patents

Zonk posted more than 6 years ago | from the putting-a-fedora-on-top dept.

Red Hat Software 107

eldavojohn writes "RedHat went to the Federal Circuit Court of Appeals asking for limits on software patents yesterday. They have not uploaded their full brief yet online, but promise to post it soon. Here's a tidbit: 'Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit. Red Hat also provides open source intellectual property protections through our Open Source Assurance Program that protects our customers and encourages them to deploy with confidence. Our strategy is a prudent one and mitigates the risk of patent lawsuits, but it would be unnecessary if the system itself were fixed.'"

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Patents (5, Informative)

omeomi (675045) | more than 6 years ago | (#23016114)

I remember hearing once that companies like IBM often build a stockpile of patents, not so much to litigate, but so nobody else can tell them what to do with patents they don't have. Even if you're infringing on somebody else's patents, if you have enough patents of your own, you can probably find one that they're infringing on, and you've essentially come to a stalemate, so everybody's happy. Only works for the big players, though. The little guys get screwed.

Re:Patents (3, Informative)

Sanity (1431) | more than 6 years ago | (#23016210)

Nope, IBM is guilty of abusing their patents, they aren't purely defensive. See this story [forbes.com] from the 1980s.

Re:Patents (3, Insightful)

Tanktalus (794810) | more than 6 years ago | (#23016716)

And you're going to use 25-year-old stories to conclude about present-day ambitions, goals, and methodologies? I'm not saying that IBM doesn't still do that, but at least find something recent. For example, without actually looking it up to find a reference, I'm sure I've heard within the last 5 years that IBM makes somewhere around $1B per year on licensing their patents. I'm not sure how the shakedown goes, but I can't imagine it being a pleasant experience for most licensees.

Even then, that doesn't take away from the GP's point: if IBM didn't have the patents, it would likely cost IBM far, far more in license costs than $1B/year (just using the deep-pockets theory of lawsuits, and IBM has DEEEEEP pockets). So it's entirely conceivable that the patent royalties IBM gets are merely a secondary concern to IBM. I'm not saying that this is the real reason, but merely that it's plausible. Nor does it justify that Forbes account of a shakedown attempt, if still used today (in all likelihood, it is, but let's using some more recent evidence, please - statute of limitations likely has run out on charges of Being An Asshole).

Re:Patents (0)

Anonymous Coward | more than 6 years ago | (#23018856)

It works for Microsoft stories..

Re:Patents (0)

Anonymous Coward | more than 6 years ago | (#23019116)

"And you're going to use 25-year-old stories to conclude about present-day ambitions, goals, and methodologies?"

Yes.

Also, I still don't trust Germans.

Re:Patents (3, Funny)

Max Littlemore (1001285) | more than 6 years ago | (#23019588)

And you're going to use 25-year-old stories to conclude about present-day ambitions, goals, and methodologies?

Yep.

That's why I buy Microsoft products. I'll support anyone who sticks it to the big, evil, nasty IBM.

Re:Patents (1)

jbn-o (555068) | more than 6 years ago | (#23020428)

And you're going to use 25-year-old stories to conclude about present-day ambitions, goals, and methodologies?

No, we'll look at that evidence to notice that the power relationship hasn't changed. More recent evidence might make the danger seem more present but the threat and the danger to software use remains.

Re:Patents (4, Informative)

QuantumRiff (120817) | more than 6 years ago | (#23016290)

Dave, the CEO of NetApp had a very interesting blog posting about patents last summer [netapp.com] . Especially interesting since NetApp and Sun are now in a Patent lawsuit battle royale.

Re:Patents (3, Insightful)

CodeBuster (516420) | more than 6 years ago | (#23016698)

Only works for the big players, though. The little guys get screwed.
Patent Trolls are usually quite small and hire contingency fee law firms to litigate the case(s) on their behalf. This has a number of advantages as well as a few (relatively minor) disadvantages...(from TFA):

Advantage:

"Some believe patent trolls have an unfair advantage over manufacturers since they are relatively immune to the typical defensive tactic large entities use against small patent plaintiffs, because the cost of litigation tends to fall more heavily on an accused infringer than on a plaintiff with a contingency-fee lawyer, and because trolls have an almost-unrestricted ability to choose their preferred plaintiff-friendly forums, most prominently the Eastern District of Texas."

IANAL, but it seems to me that it should NOT be too difficult to structure the corporate ownership in such a way that any profits from successful litigation can be extracted as legal fees from the patent trolling shell company by the law firm(s) which service it (and probably own it indirectly as well) as a vehicle to pursue their litigation while shielding the parent law firm from more direct retaliation. In any case, you would be going after the patent troll and its lawyers on their home field (i.e. the legal system) where, unless you hired equally good attorneys, they would probably be at a very definite advantage.

Disadvantage(s):

"Patent trolls are at a disadvantage in at least two ways. First, patent owners who make and sell their invention are entitled to awards of lost profits. However, patent trolls, being non-manufacturers, typically do not qualify. Further, patent owners' rights to bar infringers from manufacture, use, or sale of technologies that infringe their patents has recently been curtailed in the court decision eBay Inc. v. MercExchange, L.L.C.. Rather than automatically granting an injunction, the US Supreme Court stated that Courts must apply a standard reasonableness test to determine if an injunction is warranted. Writing in Forbes magazine about the impact of this case on patent trolls, writer Jessica Holzer concludes: "The high court's decision deals a blow to patent trolls, which are notorious for using the threat of permanent injunction to extort hefty fees in licensing negotiations as well as huge settlements from companies they have accused of infringing. Often, those settlements can be far greater than the value of the infringing technology: Recall the $612.5 million that Canada's Research in Motion forked over to patent-holding company NTP to avoid the shutting down of its popular BlackBerry service."

So, small players would be at a larger disadvantage if they actually produced something other than litigation, but as you can see the system strongly favors the patent trolls with very dubious if any benefits accruing to society from the whole affair. Even with the disadvantages, it pays to be a patent troll.

Re:Patents (4, Insightful)

MrSteveSD (801820) | more than 6 years ago | (#23017686)

We have the situation today where it's pretty much impossible to write a program without hitting loads of patents. If I was given the brief of writing a video player and I just did it in a way that seemed sensible, you can virtually guarantee that I would have infringed on dozens of patents. The only hope I would have of not getting sued is if the player was not at all popular or if patent holders felt it would generate bad publicity.

The word "VLC player" just popped into my head while I was writing this, and I did a search. As I predicted there are lots of patent threats against the player.

Re:Patents (1)

debatem1 (1087307) | more than 6 years ago | (#23018164)

Indeed. I'll try to find the study, but ACM published a paper not too long ago that concluded that virtually every non-trivial program written in the last ten years contained large and unavoidable patent violations. As a developer who has spent way too much time around lawyers, I must admit that I find that conclusion both repulsive and terrifying.

Re:Patents (4, Insightful)

delt0r (999393) | more than 6 years ago | (#23022438)

You will not infringe on dozens, you will infringe on *thousands*. I am doing just what you said, more or less. There are many many patents that are mathematically *identical*. Some even "patent" the mathematical process (lifting in this case) to derive *any* efficient implementation of DCT or similar.

Of course there are patents on sticks for dogs to fetch, how to swing in a swing and the use of a laser pointer to entertain cats (I think there a dozen of so of that one). Its quite clear that these patents won't stand up to a proper challenge and some of the video based patents have been ruled invalid when its gone to court.

But even if you win. Really the only winners are the lawyers....

Re:Patents (3, Interesting)

melted (227442) | more than 6 years ago | (#23018478)

IBM is the main reason why Microsoft started filing software patents. The story goes like this. Microsoft was blissfully unaware of the importance of software patents until one day Bill received a piece of mail from IBM lawyers telling him that Microsoft owes a rather large amount of money to IBM and there'd be consequences if they didn't pay up. They did pay that year, but they also mandated that each group files patents on anything significant they do. If they don't do anything significant, they file bullshit patents anyway, because there's a requirement to file and if they don't file enough their VP would be fucked. And VPs usually don't take buttsecks from the superiors lightly.

These days, by sheer numbers Microsoft is one of the biggest patent producing machines, able to go medieval on anyone who tries to enforce patents against it.

There's just one kink to this, as Eolas story amply demonstrated - if the plaintiff is just a hollow patent troll that does NOT infringe on anything Microsoft does and simply holds a patent to a core technology, he can get mega-millions by suing their ass.

Re:Patents (0)

Anonymous Coward | more than 6 years ago | (#23018848)

Learn more about the patent system little guy... its not really rocket science... go through the USPTO site and get information about it...

Being more aware of the rules can only help, and being a former hacker myself, I am surprised more hackers do not delve into the depths of the patent system to hack the system.

IBM: "perhaps an order of magnitude" more value (1)

jbn-o (555068) | more than 6 years ago | (#23020384)

Richard Stallman points out how this works, and the specific value of cross-licensing, in his talk on "The Danger of Software Patents" or "Software Patents—Barriers to development". He's given this talk many times and recordings [gnu.org] and transcripts [fsfe.org] are readily available (thanks to all you recorders and transcribers). He references an article in "Think" magazine, #5, 1990 [mit.edu] (IBM's promotional magazine) which says that IBM gets "perhaps an order of magnitude" more value from cross-licensing than they do from licensing patents they own. The linked article quoting "Think" and the points raised there are well worth reading in their entirety—for IBM (the world's largest patent holder for many years running, by the way, thus compared to IBM everyone is "little") the trouble software patents create is hypothetical, for everyone else (including users) it's very real.

I sometimes feel sorry for the RedHat brand (5, Insightful)

pembo13 (770295) | more than 6 years ago | (#23016122)

RedHat is essentially that son who does everything the family needs, but is rarely acknowledged because he isn't 'cool'.

More on topic, I hope this works out, if only so it would reduce their costs as I like their services.

Re:I sometimes feel sorry for the RedHat brand (2, Insightful)

JeremyGNJ (1102465) | more than 6 years ago | (#23016150)

And isnt that funny....the one true commercial success story for Linux...is shunned by it's own community.

Re:I sometimes feel sorry for the RedHat brand (5, Insightful)

everphilski (877346) | more than 6 years ago | (#23016208)

By the "vocal" community perhaps. Industry tends to use it pretty hardcore. I've been through three engineering (mechanical/aerospace) jobs in the last three years, and all three, when using Linux, used Red Hat.

So while people piss and moan on /. and other forums, and praise Ubuntu or whatever flavor of the month, real work does get done on Red Hat and similar distros. It's just that you wouldn't hear about it, unless you were really **doing** it.

Re:I sometimes feel sorry for the RedHat brand (-1, Troll)

Anonymous Coward | more than 6 years ago | (#23016382)

So while people piss and moan on /. and other forums, and praise Ubuntu or whatever flavor of the month, real work does get done on Windows Machines.

Re:I sometimes feel sorry for the RedHat brand (0, Offtopic)

strabes (1075839) | more than 6 years ago | (#23016954)

Real work like gaming? That's my only use for windows anymore.

Re:I sometimes feel sorry for the RedHat brand (0)

Anonymous Coward | more than 6 years ago | (#23018790)

These people aren't writing letters, buddy, they are doing either science or business transactions.

Re:I sometimes feel sorry for the RedHat brand (0)

Anonymous Coward | more than 6 years ago | (#23016894)

I see a lot of these people at the University. I learned to ignore them. Entering in pointless arguments with these people was making me tired. These days, a friend of mine, who has never used Linux before, was talking about a problem he had trying to install Ubuntu (probably a damaged media, nothing serious) and was advised by one of those zealots to install Gentoo...

Myself, I'm a happy Fedora user. My best wishes for RedHat.

Re:I sometimes feel sorry for the RedHat brand (1)

buchner.johannes (1139593) | more than 6 years ago | (#23017696)

Perfect example for this is the NetworkManager ... seen dozens of times as cool feature in Ubuntu, actually a project of RedHat.

Re:I sometimes feel sorry for the RedHat brand (4, Insightful)

Znork (31774) | more than 6 years ago | (#23016772)

is shunned by it's own community.

What part of which community?

As far as I can tell, Red Hat has a very good reputation and is widely appreciated. They hire a lot of important coders, they contribute much and they release most of their software under GPL. Sure you have the distro of the day crowd, but they'll always be installing new distributions.

Re:I sometimes feel sorry for the RedHat brand (2)

PCM2 (4486) | more than 6 years ago | (#23018534)

As far as I can tell, Red Hat has a very good reputation and is widely appreciated.

I think part of the problem here is that when many vocal Slashdotters talk about Red Hat, they really mean either Fedora or CentOS. What engagement they have with Red Hat is limited to installation media, not the part of the company that really matters. That's my take, anyway.

I prefer Ubuntu as a desktop OS because ... I prefer it. Simple. If I were in charge of setting up a bunch of Linux servers for a midsized business, however, I doubt I'd seriously consider Ubuntu's Server flavor for that. I'd be looking at Red Hat first, Novell second, and not primarily in terms of what comes on the discs.

Re:I sometimes feel sorry for the RedHat brand (1)

kylehase (982334) | more than 6 years ago | (#23020984)

when many vocal Slashdotters talk about Red Hat, they really mean either Fedora or CentOS
Guilty as charged. I appreciate RedHat mostly because I know if they fail CentOS will probably disappear too. But hey, at least I appreciate them.

Re:I sometimes feel sorry for the RedHat brand (1)

Spy der Mann (805235) | more than 6 years ago | (#23018066)

Um, wasn't Novell (and not Red Hat) who got shunned by the community?

Re:I sometimes feel sorry for the RedHat brand (1)

hdparm (575302) | more than 6 years ago | (#23021536)

Nope, Novell shunned themselves.

Re:I sometimes feel sorry for the RedHat brand (1)

debatem1 (1087307) | more than 6 years ago | (#23018320)

Ok, I'll fess up- I don't like Red Hat. Its a grudge and its not fair to them now, but going back a few years, those guys weren't much more fun to deal with than IBM, and for a small business, that's saying something. Now, of course, they're much better, they contribute more, and they participate more in the community, but I think there's probably always going to be a little knot of people for whom the words 'Red Hat' will always leave a bitter taste in their mouths.

Re:I sometimes feel sorry for the RedHat brand (2, Interesting)

BlueParrot (965239) | more than 6 years ago | (#23020302)

Eh? Red Hat is far from the only commercial success of Linux. Just have a look at Canonical and Ubuntu, they got Linux pre-installed on systems for consumer desktop use and they are making quite a bit of money from it.

Re:I sometimes feel sorry for the RedHat brand (0, Offtopic)

pete-classic (75983) | more than 6 years ago | (#23016370)

Are you saying that the Linux community is like the Bluths, and Red Had is Michael?

Let's see how far we can take that.

RMS as Oscar
Linus as George
Slackware as GOB
Ubuntu as Lindsey
Debian as Tobias
Linspire as Buster
SuSE as George Michael
Novell as Carl Weathers (as Himself)
Knoppix as Maeby
Bruce Perens as the Narrator
Microsoft as Wayne Jarvis
BSDs as the Sitwells

I can't figure out who to cast as Zuckerkorn, Bob Loblaw, or Rita.

-Peter

Re:I sometimes feel sorry for the RedHat brand (1)

ushering05401 (1086795) | more than 6 years ago | (#23016404)

I'm sorry, but what the hell are you talking about?

Re:I sometimes feel sorry for the RedHat brand (-1)

Anonymous Coward | more than 6 years ago | (#23016620)

I'm sorry, please hand in your geek card

Re:I sometimes feel sorry for the RedHat brand (1)

Anonymous Coward | more than 6 years ago | (#23016990)

Uh.. I googled the names listed above, and came up with some lame sitcom that my mom used to tell me about. How is this related to a person's geek card?

Re:I sometimes feel sorry for the RedHat brand (2, Informative)

cparker15 (779546) | more than 6 years ago | (#23017134)

I had to look it up. They're characters from a show called "Arrested Development". It airs on Fox here in the States, so that explains why I've never heard of it.

Re:I sometimes feel sorry for the RedHat brand (1)

mini me (132455) | more than 6 years ago | (#23016674)

Michael Geist seems like the logical person to play Bob Loblaw. He even has his own law blog [michaelgeist.ca] .

Re:I sometimes feel sorry for the RedHat brand (1)

Medievalist (16032) | more than 6 years ago | (#23016774)

Well, they've really stopped leading the pack.

Since Troan left, the fit'n'finish of their main offering has really slipped - what's the point of shipping a broken mkbootdisk? Sure, you can't fit Red Hat on a 1.44 MB floppy any more, but other distros simply hacked the script to make bootable USB sticks while RH was still shipping a unuseable utility. Or what about PAM support in usermod/useradd etc.? First Red Hat closes the bugzilla ticket (that has dozens of people on it) with the explanation "shadow utils are not intended to work with PAM" and then a year later they ship a working PAMmed usermod? SUSe had LDAP-aware usermod/useradd more than a year before Red Hat said it was not going to ever happen. Then RH did it anyway. Or what about the way the installation process has disintegrated? Sure, there's a glitzy mouse GUI chipping away at user interface diversity (as though that's a desireable thing) but meanwhile the text installer's help system mostly disappeared and the categorization of packages completely fell apart.

I like Red Hat's business model, but they are charging a premium price for a product that is less and less premium-grade. I've been pumping money into them for a decade or more... but now I run Ubuntu on my home server, because it's just a better integrated solution.

Re:I sometimes feel sorry for the RedHat brand (1)

AvitarX (172628) | more than 6 years ago | (#23018898)

It's funny. When I first used Linux RedHat was like Ubuntu is now. I remember going to borders to get a book about it and some "old guy" (probably actually a sophomore in college) sneered about my book choice and said something to the effect of "it's OK, but I wish people would use Slackware". As a new user there appeared to be pretty much the same anti-RedHat as sentiment I see against Ubuntu now. Of course it's reputation of good hardware detection and easy configuration made it very dominant with new users at just the right time (major buzz for this new Linux thing in the media everybody trying RedHat).

I did eventually install Slackware and it was kind of neat to have everything available, but nothing running by default (recommended install method was to copy entire disk, I believe it was version 10). But it was hardly the awakening all the Slackers made it our to be.

Sudden, yet expected, outbreak (1, Funny)

Anonymous Coward | more than 6 years ago | (#23016146)

I'd tag this as "suddenoutbreakofcommonsense", but given the source, something tells me this isn't exactly unexpected or sudden. So, keep up the good work, ya red fedora-wearing nuts!

(assuming, of course, this actually GOES anywhere...)

Infinite goods. (3, Insightful)

Anonymous Coward | more than 6 years ago | (#23016154)

It seems to me that the US in particular sees it's future income not to be based on selling physical goods but rather to be based on the sale of abstract knowledge. With that in mind the whole area of "intellectual property" and the motivations to protect it become in my own mind at least clearer. Information suffers from the attribute of infinite goods. I give it to you and at no cost you can undercut me and give it to millions of others without loss. That's the problem. It's hard to centralize profit when an idea can be replicated forever over the wires. On the flip-side, open-source in particular shows that instead of benefiting the top of the pyramid, wealth can be spread around much more evenly giving everyone the benefits and moving the area of competition to a different market. But this situation while good for the many does not currently lie within what the leaders of the United States of America see as in their strategic interest.

Re:Infinite goods. (-1, Troll)

gnupun (752725) | more than 6 years ago | (#23016632)

That's the problem. It's hard to centralize profit when an idea can be replicated forever over the wires.
When the product takes $0 cost to build, only the idea is valuable and that's why patents are a good idea. It's fair that the patent creator/owner gets compensated for their genius (in cases where the patent is non-trivial).

On the flip-side, open-source in particular shows that instead of benefiting the top of the pyramid, wealth can be spread around much more evenly giving everyone the benefits and moving the area of competition to a different market.
LOL... open source is like slavery. Millions of users (eg: RedHat) use the product to make billions, while the actual creators of the software work for free (less than what african slaves earned centuries ago), and have to get a second job to pay for their living.

Re:Infinite goods. (2, Interesting)

Znork (31774) | more than 6 years ago | (#23016946)

only the idea is valuable

Ideas are a dime a dozen; attaching monopoly rights to them simply makes the market less efficient and ends up with transaction costs that dwarf the inherent value of the improvement.

in cases where the patent is non-trivial

There are no non-trivial patents. All innovation is evolutionary steps from previous work. For anyone sufficiently skilled in the appropriate art, all solutions are obvious.

The only way you can delude yourself into being amazed at a new step is by not knowing the intermediary steps. And that, in itself, precludes you from being sufficiently skilled.

The days are over when you could lock an inventor in a basement for 20 years and he'd come out with something revolutionary. Today, if you lock an inventor in a basement the only thing you'll get is something nineteen years out of date. Mass communication and mass evolutionary development beats a single genious every time.

Re:Infinite goods. (3, Insightful)

gnupun (752725) | more than 6 years ago | (#23017296)

Ideas are a dime a dozen; attaching monopoly rights to them simply makes the market less efficient and ends up with transaction costs that dwarf the inherent value of the improvement.
O'Really? Maybe you have a dozen ideas on how to speed up programs on multi-core systems better than what is available today, then. You could make a few billion if you did.

There are no non-trivial patents. All innovation is evolutionary steps from previous work. For anyone sufficiently skilled in the appropriate art, all solutions are obvious.
All solutions are obvious once you understand them, but you would not have come up with the idea yourself without the (valid/non-obvious) patent. Patents are instructions for someone skilled in the trade to recreate the product.

Re:Infinite goods. (1)

SiegeTank (582725) | more than 6 years ago | (#23019148)

Ideas are a dime a dozen; attaching monopoly rights to them simply makes the market less efficient and ends up with transaction costs that dwarf the inherent value of the improvement.
O'Really? Maybe you have a dozen ideas on how to speed up programs on multi-core systems better than what is available today, then. You could make a few billion if you did.

You can't patent ideas and this should not change. As a very simplified summary it's likely that the people designing a solution will be people looking at chips and the code used to run them and they might be thinking, 'How can we rearrange what we already have and what will we need to add to make this work?'. They may not need to create anything regarding the technologies they bring in to make it work, but they can patent the implementation they come up with.

Re:Infinite goods. (1)

cream wobbly (1102689) | more than 6 years ago | (#23017996)

Mass communication and mass evolutionary development beats a single genious every time.
That's simply not true. Mass communication and mass evolutionary development are the brute force approach. The reason we don't see many genius developments is because the inventors have had the genius beaten out of them by a school system that teaches only entitlement, and an adult world where not being protected financially against (mostly dietary) health problems is as close to suicide as it gets, and an investment structure where only "safe" evolutionary development is funded.

Your assertion assumes that what we have is a status quo; perpetuating the problem. Otherwise you deny the existence of ingenuity.

As for the idea of ideas: it's not the idea, it's the execution that makes the service worthwhile to its customers.

Re:Infinite goods. (1)

corerunner (971136) | more than 6 years ago | (#23017130)

You raise a very intriguing point, and I think it could help us geeks explain the value of open source to the masses. Thanks!

Idea patents (1)

CustomDesigned (250089) | more than 6 years ago | (#23018086)

US Patent Law prohibits patenting ideas. The US Supreme Court has upheld this 3 times. The bad case law involving patents on ideas implemented in software has effectively modified the law to say, "you can patent an idea - provided an automatic machine can implement your idea". So by simply providing a machine that implements them, business methods can be patented - and both manual and automatic implementations of the idea monopolized.

While this seems a great windfall for the unscrupulous, the capabilities of machines keep advancing at a great pace. As soon as machines can reliably walk, styles of walking can be patented. As soon as machines have reason to breathe - sniffers, for example - breathing methods can be patented. As soon as machines can think, forms of thought can be patented.

The lawyers who created this bad case law in the '90s simply didn't understand the potential of general purpose computers. They envisioned screens, keyboards, and printouts - and thought the genie they created was pretty well contained. They were wrong.

Re:Infinite goods. (2, Interesting)

SiegeTank (582725) | more than 6 years ago | (#23018980)

But this situation while good for the many does not currently lie within what the leaders of the United States of America see as in their strategic interest.
Nobody said anything about the 'leaders' and 'strategic interest', this is something that the courts should be allowed to decide - it affects a lot of individuals too despite all the economic and social benefits the money might provide. I remember reading something in the last few months about whether the Congress has unlimited power to control issues of relevance to the US economy, that may be come up here too.

Honestly (1, Interesting)

Corpuscavernosa (996139) | more than 6 years ago | (#23016158)

Without actually seeing the brief, TFA can take everything they want out of context. I'd just like to read the brief before I take a stance on what they're doing here. I'm ALL for open source and run multiple Linux machines, but the software patent realm is horribly messed up and yet necessary at the same time.

As much as I hate it, some great software has been developed under the patent system that otherwise might not have been made. A solution? I don't have it.

Re:Honestly (4, Insightful)

greenbird (859670) | more than 6 years ago | (#23016220)

As much as I hate it, some great software has been developed under the patent system that otherwise might not have been made.

I call bullshit. Name one category of software that would not have been developed without patents and name a few specific products.

Re:Honestly (4, Funny)

arotenbe (1203922) | more than 6 years ago | (#23016282)

Name one category of software that would not have been developed without patents and name a few specific products.
Annoying interactive cartoon interfaces. Microsoft Bob. Clippit.

Oh, wait...

Re:Honestly (1)

i.r.id10t (595143) | more than 6 years ago | (#23016328)

Various DRM implementations? Though that may be more copyright driven than patent driven...

Re:Honestly (4, Insightful)

Ed Avis (5917) | more than 6 years ago | (#23016378)

You might argue that Frauenhofer would not have done the R&D to develop the MP3 encoding without the expectation they could get software patents and charge people for them. Then again, other formats like Ogg Vorbis were developed freely (even if MP3 came first).

Even if such cases do exist, they are more than outweighed by the cases where innovation is blocked, not promoted, by patent minefields.

Re:Honestly (1)

Z34107 (925136) | more than 6 years ago | (#23016690)

True - but MP3 did come first, and I'm willing to pay a premium to have technology advance faster.

Re:Honestly (2, Insightful)

Znork (31774) | more than 6 years ago | (#23017068)

I'm willing to pay a premium to have technology advance faster.

Sure. The thing is indications are that patents make technology advance slower instead. Monopolies do not tend to encourage efficiency; Microsoft with all its resources can barely keep pace with an underfinanced rag-tag bunch of geeks.

There are various other models for diverting funds to have technology advance faster without the damaging aspects of monopoly rights; they were never intended to accomplish faster technological advances, they were originally intended as a way to enrich the friends of the crown at the expense of the populace. As such, they are serving their original purpose well.

I'm not. (1)

jbn-o (555068) | more than 6 years ago | (#23020534)

My software freedom is too high a price to pay. I'm certainly not willing to go along with an alleged relationship between exclusionary power over ideas one can use in software and the speed with which those ideas are used to make software (where exclusive power is said to provoke people to develop these products). I remember computer software developing at a perfectly fine pace when software patents either didn't exist or were rare. What we're seeing today is more likely a power grab than anything to do with a justification for product development.

Re:Honestly (3, Insightful)

ceifeira (1230772) | more than 6 years ago | (#23016766)

MP3 got developed when it did because scientific output on speech coding and psycho-acoustic models, using wavelet and cosine transforms (particularly the DCT), &c., reached critical mass at the time.

Re:Honestly (1)

Richard W.M. Jones (591125) | more than 6 years ago | (#23022056)

Fraunhofer [wikipedia.org] is funded one third by the German government and two thirds by contract work done for businesses. It's pretty likely that public-funded universities would have developed this stuff (after all, MP3 is just a minor evolution of lots of research that was being done at the time).

However, if the technical hurdle for software patents was as high as complex, innovative audio compression algorithms, and if the monopoly didn't last so long, then certainly the patent system would not be so broken as it is today.

Rich.

Re:Honestly (5, Informative)

garett_spencley (193892) | more than 6 years ago | (#23016486)

"I call bullshit. Name one category of software that would not have been developed without patents and name a few specific products."

PNG, Ogg Vorbis etc.

Re:Honestly (0)

Anonymous Coward | more than 6 years ago | (#23018244)

Tis true, but they might have developed anyway because people like their way of doing things.

Re:Honestly (1, Informative)

Anonymous Coward | more than 6 years ago | (#23020772)

Shouldn't you have been modded funny instead? I'm assuming your trying to get at that those two were open formats created specifically to bypass the patent issues with GIF & Mp3.

Re:Honestly (1, Redundant)

Corpuscavernosa (996139) | more than 6 years ago | (#23016492)

I said might not have been made and I was not necessarily arguing "for" the software patent system. I didn't say "would never have been made." I was merely speaking to the general principle that the patent system, screwed up as it is, can drive innovation to a point. For good or for bad. And that point was early in the history of software patents. I do believe that software patents are shit-useless and inhibit innovation now.

Forgive me for not being more thorough with my first post.

Re:Honestly (1)

gnupun (752725) | more than 6 years ago | (#23017870)

Google pagerank for one. I bet Google wouldn't be search king if Microsoft could easily clone their algorithms.

Re:Honestly (0)

Anonymous Coward | more than 6 years ago | (#23020858)

Data compression is one area that might not have been developed without patents. A lot of the RSA encryption was developed under patents. Windows were developed at Xerox Parc and a lot of the early computer field benefits from a patent framework. Patents do encourage innovation by providing a legal framework for the idea and it's development time and ownership. A lot of the open source crap is developed without any legal framework for it's code or structure or inventor.

If there are 10 dozen software projects who can decide which inventor is the owner if they all lay claim to an idea? A patent can provide some legal structure for an idea and it separates the invention by date and specification which are two very essential things. Patents provide categorization. In open source software you just have the code but not necessarily the time or date or even who made the description and author or if it even predates or postdates another inventor. Open source software lies in the muddy murky realm and doesn't really provide any concept of invention or date it just attempts to muddy the issue which in the spirit of history can be very important.


Stuff that open source trolls. I disagree because I think this is against free expression and free speech. The open source people are just trying to mandate a socialist ideology that doesn't allow for ownership or freedom of practice of expression. Filing a software patent is a freedom of expression.


I think software patents can also be beneficial and I disagree with someone who might not have the expertise to invent anything to say they are entirely bad. I think they can be good it's just that they cost $50,000 dollars to file and create which mitigates there use. To file a patent you have to hire a lawyer and spend $7000 and then pay a filing fee and then file a foreign patent and in the expense regard software patents are useless. From the cost side software patents are useless and prevent the small time johny from even attempting to file one. I think patents are not for the average inventor but more for the corporation who has legal resources. There is probably a way to balance ownership rights and cost. I think it is much better to open source a software project because the expense of filing a patent is astronomical which is the delimma that I had. It just doesn't make sense from the cost side to file a software patent.


Patents in themselves are not bad. I think the open source people just want everything to be free so that they can screw the inventors. Software patents can be good in a bad sort of way. I think it's ridiculous for the open source people to just say they are all bad. I think the right of free speech also applies to software patents. Each person has the right to free speech just as they should have a right to software patents. It's how the system litigates them and expenses a software patent that is a different matter.

Re:Honestly (2, Funny)

Gat0r30y (957941) | more than 6 years ago | (#23016326)

Link to the brief [redhat.com] It was at the bottom of the page.
As for my .02$ I think you should be able to patent compilers, anything else should fall under copyright.

The brief (0)

Anonymous Coward | more than 6 years ago | (#23016380)

is here [redhat.com]

Re:Honestly (4, Insightful)

QuantumRiff (120817) | more than 6 years ago | (#23016432)

As much as I hate it, some great software has been developed under the Copyright system that otherwise might not have been made. A solution? I don't have it.

Fixed that for you!

Re:Honestly (2, Informative)

Corpuscavernosa (996139) | more than 6 years ago | (#23016602)

Haha yes that was fixed indeed! As far as copyright is concerned for software, there has to be some sort of a functional equivalency protection that Copyright doesn't protect. If you have some sort of technique for compliation or something and the code is copyrighted. If someone comes along and figures out how to do the same thing without exactly taking your code, they're free to do it. I think that's where the problem lies.

Re:Honestly (3, Informative)

greensoap (566467) | more than 6 years ago | (#23016922)

I just finished the brief. Of course this subject deserves more thorough explanation and analysis, but who has the time.

Red Hat is arguing that the Federal Circuit has failed to apply the standards set forth by the Supreme Court. Namely, they are arguing that software along does not fall within 35 USC Section 101 without some sort of physical transformation of something. See Diamond v. Diehr. The Fed. Cir. created a standard saying that software is patentable if it creates a "useful, concrete, and tangible" result. See State Street and AT&T. The Fed. Cir. then went on to say that a numerical result is a tangible result, Red Hat says that this is incorrect based on a Supreme Court case called Benson.

Red Hat is saying the Fed. Cir. has been improperly applying Supreme Court case law. Furthermore, they are making that argument to the Fed. Cir. The Fed. Cir. did ask for the argument, so the court might be receptive. However, most courts do not overturn themselves but instead find a way to set new precedent without overturning prior case law. Should we really expect the Fed. Cir. to overturn their own decisions from State Street and AT&T?

What Red Hat is not arguing, is whether software that controls a physical process that creates a transformation in a physical thing may properly be part of a patent. That was established by the Supreme Court in Diamond v. Diehr.

Re:Honestly (1)

jonwil (467024) | more than 6 years ago | (#23020630)

Would the state of the art in video codecs (H.264, MPEG4 etc) have been developed if the people doing the development couldn't patent them? Would the codecs have been developed but kept as proprietary trade secrets instead of being standardized?

BONK! (2, Funny)

Anonymous Coward | more than 6 years ago | (#23016180)

The article managed to spell "Red Hat" correctly almost 20 times, and the summary couldn't manage it once.

Kudos redhat, kudos. (2, Interesting)

pwnies (1034518) | more than 6 years ago | (#23016252)

This is a step in the right direction. Hopefully the US patent system realizes that it's messed up, and now that companies (especially ones that hold as many patents as red hat) are asking for limits on those (which would inevitably annul some of the ones redhat holds) it might be the push that's needed to spark reform.

Re:Kudos redhat, kudos. (1)

sadgoblin (1269500) | more than 6 years ago | (#23016358)

You forget that will do about anything to keep their Patents...

Re:Kudos redhat, kudos. (1)

sadgoblin (1269500) | more than 6 years ago | (#23016426)

You can actually paste any name of a big corp between "that" and "will"

The Right Thing That Won't Be Done (3, Interesting)

amplt1337 (707922) | more than 6 years ago | (#23016264)

FTA:
Today the patent system is, if anything, a hindrance to open source.

Sure. Absolutely. The patent system is so out of control that it is, if anything, a hindrance to start-ups, too.

In the words of Dick Cheney, "So?"

What it comes down to is which interest owns more Congressmen. (I'm aware that this is a brief in a court, but any sufficiently broad decision rejecting the idea of software patents would no doubt immediately come under legislative fire).

Also note that even if the scope of "what-is-patentable" is narrowed substantially, there's still hundreds of thousands of bogus software patents out there that aren't going to be deleted with the wave of a gavel, and that would most likely need to be litigated indvidually -- at substantial expense -- before they could be revoked, one-by-one. If they even can be revoked (I'd settle for being rendered officially unenforceable).

Re:The Right Thing That Won't Be Done (1)

Free_Meson (706323) | more than 6 years ago | (#23016462)

What it comes down to is which interest owns more Congressmen. (I'm aware that this is a brief in a court, but any sufficiently broad decision rejecting the idea of software patents would no doubt immediately come under legislative fire).
Strong patents favor smaller companies/startups/open source/etc. Weak patents favor big business. A startup holding a patent can exclude others from the market or force them to increase their marginal cost of production. A large company can lower its marginal cost of production/distribution/etc to below that of a startup or small business if not forced to license or work around whatever competitive advantage the startup/small business gained through their invention.

Re:The Right Thing That Won't Be Done (1)

Medievalist (16032) | more than 6 years ago | (#23016572)

Strong patents favor smaller companies/startups/open source/etc. Weak patents favor big business. A startup holding a patent can exclude others from the market or force them to increase their marginal cost of production. A large company can lower its marginal cost of production/distribution/etc to below that of a startup or small business if not forced to license or work around whatever competitive advantage the startup/small business gained through their invention.
I suppose it might work that way if the large businesses weren't able to both write legislation and prevent fair enforcement of existing laws.

Re:The Right Thing That Won't Be Done (1)

Free_Meson (706323) | more than 6 years ago | (#23018938)

Responding to several responses here.

I suppose it might work that way if the large businesses weren't able to both write legislation and prevent fair enforcement of existing laws.
There's a reason that current legislative reform and recent changes in patent jurisprudence in the US is greatly reducing the power conferred by a patent.

Assuming that the big business doesn't already hold a patent on something the small company needs, and form a patent consortium with other large businesses to ensure no newcomers can get a toehold in the market.
Patent pooling is heavily regulated by the FTC and DOJ. If you're bothered by a patent pool operating as a legal apparatus for promoting cartel formation and enforcement, that's a problem with antitrust law, not patent law. http://www.law.duke.edu/journals/dltr/articles/2006dltr0007.html [duke.edu]

If a small player that actually produces products were to assert a patent against one of the oligarchy members, it will most get countersued for patents in the big guy's portfolio.
What reason would a company have for litigating under the same corporate umbrella that he does business? Patents not being licensed or litigated yield the holder no benefit and filing suit as anything more than a patent holding company exposes the patent holder to frivolous countersuits from his target. (Such "defensive" uses of patents cause far more problems with the economics of patents and technology than offensive "trolls")

The party with the most lawyers and financial resources will be the one most likely to prevail.
Decreasing the power granted by the patent only increases the relative importance of legal fees in patent litigation, enforcement, and settlement.

In the software industry, patents are nothing more than an unpredictable minefield that can pop up anywhere to threaten any small company's survival, and patent trolls can pop up do do significant financial damage even to large companies.
First off, I don't believe there's anything special about software patents in this regard. Patent trolls pose a threat to every industry, and the harm they cause has nothing to do with the subject matter of the patent they abuse.

Second, can you name a single patent "troll" who ended a small company's existence by successfully asserting a patent against it in court? True patent trolls bring suits for nuisance value and settle for something less than the $3-5M it takes to prove their patent is invalid/is inapplicable/is not infringed/etc. Weakening patents would not reduce the impact of these "trolls" as they profit from defense costs, not the anticipated cost of an adverse verdict.

Software and (more importantly, though not yet apparent) financial services patents are a special problem because of how they were managed early on. Very little prior art (within the PTO's definition) existed when many of these problem patents came through, which made the PTO's tests for obviousness and anticipation less useful for denying patent applications. Specifically, the lack of printed publications and prior patents/patent applications covering much of the art claimed in the bad software/financial services patents probably led to the issuance of patents that would likely not have issued in another art. As more of this background art makes it into the record searchable by patent examiners, though, we'll have fewer and fewer bad patents in these fields. Many of the problems associated with software patents (i.e. obviousness) thus have little to do with software patents and a great deal to do with the transition of software from unpatentable subject matter to patentable subject matter.

If you want to reduce the number of software patents that can be enforced against you in the future, publish early and often (websites don't count). The more you disclose, the less some future patent filer can claim. The whole purpose of the patent system is disclosure, and if an examiner can find a reference that anticipates (or multiple references that obviate) a claimed invention then the PTO doesn't need to give the inventor patent rights to secure the disclosure of his invention.

Software patents negative economic effects outweigh any benefits they provide.
I'm not the biggest fan of the patentability of software from a legal perspective, but from an economic perspective disclosure incentives for software make a lot of sense. The alternative is closed/encrypted/DMCA-protected software with legal and contractual penalties for reverse engineering. With patents, everyone can read, improve upon, and/or design around a given innovation while exposing themselves to, at most, an injunction. Without patents, the only way to learn about another company's innovation is to violate copyright or trade secret law, the former carrying criminal penalties. Under which scheme does an innovator have more incentive to disclose? Under which scheme does another practitioner have greater incentive to innovate upon or around that initial innovation?

The problem with the U.S. patent system is the mismatch between the high cost of an effective defense and the low cost of bringing suit. This makes any patent that isn't laughably invalid/inapplicable worth several million dollars against each defendant. If we altered the penalties for bringing such bad faith suits and counter-suits then most of the problems in the U.S. patent system would fix themselves.

Re:The Right Thing That Won't Be Done (2, Insightful)

amplt1337 (707922) | more than 6 years ago | (#23016628)

A startup holding a patent can exclude others from the market or force them to increase their marginal cost of production.
Assuming that the big business doesn't already hold a patent on something the small company needs, and form a patent consortium [wikipedia.org] with other large businesses to ensure no newcomers can get a toehold in the market.

Re:The Right Thing That Won't Be Done (2, Insightful)

Waffle Iron (339739) | more than 6 years ago | (#23016888)

Strong patents favor smaller companies/startups/open source/etc. Weak patents favor big business.

For the software industry, you have it exactly backwards.

The probability of building a non-trivial application that doesn't infringe on some existing patent is essentially zero. Large companies build patent portfolios and cross-license them with each other to build up an oligarchy of a few big players with a huge barrier around their market positions. They are all free to operate under this mutual patent umbrella.

These big guys can squash any small player that comes along with a new product that threatens their established market position. If a small player that actually produces products were to assert a patent against one of the oligarchy members, it will most get countersued for patents in the big guy's portfolio. The party with the most lawyers and financial resources will be the one most likely to prevail. (The only small guys who do not run this risk are the ones that don't actually produce anything to be countersued over, i.e., the patent trolls.)

In the software industry, patents are nothing more than an unpredictable minefield that can pop up anywhere to threaten any small company's survival, and patent trolls can pop up do do significant financial damage even to large companies. Software patents negative economic effects outweigh any benefits they provide.

Brief is now online. (3, Informative)

Ungrounded Lightning (62228) | more than 6 years ago | (#23016342)

They have not uploaded their full brief yet online, but promise to post it soon.

TFA now has a link to a PDF of the brief [redhat.com] .

This was necessary (3, Insightful)

Apoorv Khatreja (1263418) | more than 6 years ago | (#23016446)

With Ubuntu in the market, the big corporation have starting considering Linux as a threat. They're scared because it isn't a regular competitor; they can't buy it out. The GPL ensures this. So now they are trying to get involved and try to commercialize things. Recent developments such as -
http://linux.slashdot.org/article.pl?sid=08/04/08/202227 [slashdot.org]
http://linux.slashdot.org/article.pl?sid=08/03/31/1359204 [slashdot.org]
show what the commercial players are upto. In such a scenario, anybody would be scared, and hence seek legal protection.

And the history of Microsoft is in any case, enough for any company to be afraid of them.

All Large Companies Do It (3, Insightful)

SwashbucklingCowboy (727629) | more than 6 years ago | (#23016456)

Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit.

You could remove "open source" from the sentence above and it would be just as accurate.

Re:All Large Companies Do It (2, Interesting)

Ungrounded Lightning (62228) | more than 6 years ago | (#23016678)

Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit.

You could remove "open source" from the sentence above and it would be just as accurate.


Too true.

Since "going over to the hard side of the force" a few years ago - from software to hardware design - I've cranked out six patents for our company. (And we have a bunch of other people cranking, too.) We did it primarily as a defensive measure - and had to use it within a year, when a competitor (and major player in telecom) ran into financial trouble and became a patent troll to try to keep afloat. Turns out we hadn't infringed their patents - but it was still easier to cross-license than litigate.

Legislate from the Bench (4, Insightful)

Archangel Michael (180766) | more than 6 years ago | (#23016598)

While I despise software patents just like most of slashdot, I hate seeing the solution being legislation from the bench.

Software Patents are just about as silly as can be. If one thinks about it, anyone can use patents for PERSONAL or CORPORATE use, that patents should only apply to items being sold/marketed as a product or an improvement to an existing product for sale.

Lets just look at how this works, using some ancient tech, Stills. Lets say that I came up with a process or improvement that increases still production or the quality of the spirits being distilled. I can then market that improvement to all the other still makers, or start marketing stills that have that improvement built in.

However, if Joe Whitelighting makes his own stills, for his own use, and he happens upon building a still with said improvement, built by himself, then the person with the patent has no recourse.

The point of Patents is to get them into use as efficiently as possible. Not to horde patents to ideas and inventions that never get built.

In the case of software patents, Amazon isn't distributing, selling, or otherwise offering for license "OneClick". It is using this patent to keep others from using it, even if the others are building it (or something similar) themselves.

In this case the Patent is being used not to reward Amazon for something they are selling, but rather to punish anyone using a similar or related idea.

Re:Legislate from the Bench (2, Insightful)

Waffle Iron (339739) | more than 6 years ago | (#23016982)

While I despise software patents just like most of slashdot, I hate seeing the solution being legislation from the bench.

As you may recall, the entire idea that software can even be patented in the US was originally legislated from the bench.

Re:Legislate from the Bench (1)

Archangel Michael (180766) | more than 6 years ago | (#23018744)

two wrongs don't make a right (pun intended)

Re:Legislate from the Bench (1)

greensoap (566467) | more than 6 years ago | (#23017026)

Are you trying to say that patents should not apply to average joe user who makes is own item that infringes a patent? If you are, the simple fact is there almost never is a case where BigCompany sues average joe for patent infringment (unless average joe is making/using the product for public use). There simply is no money in it for BigCompany and joe's infringing use doesn't really cost BigCompany any money.

legislation from the bench (2, Interesting)

stites (993570) | more than 6 years ago | (#23017616)

"While I despise software patents just like most of slashdot, I hate seeing the solution being legislation from the bench."

Software patents were created by legislation from the bench. Probably the broadest extensions of software patent case law were done by the Federal Circuit Court of Appeals to which Red Hat is presenting their brief. So Red Hat's approach is practical in the sense that that they have the opportunity to present our case to a body that is capable of deciding the issue in our favor.

It would be better if we could get a law passed by Congress abolishing software patents because the Congressional law would take precedence over case law. The courts could no longer decide that the current laws, while not mentioning software patents, logically imply that software patents are legal.

I have lobbied Congress to abolish software patents and got nowhere. I came to the conclusion that to be successful we would have to hire a professional lobbyist and join the fight in the Judiciary Subcommittees' hearing rooms along with all the other lobbyists fighting over the patent reform issue. I think that Red Hat spending the money to jump on this opportunity to possibly abolish or curtail software patents is money well spent. It is probably cheaper and certainly faster than spending money on Congressional lobbying and the opportunity is immediate.

-----------
Steve Stites

Re:Legislate from the Bench (0)

Anonymous Coward | more than 6 years ago | (#23017648)

Lets just look at how this works, using some ancient tech, Stills. Lets say that I came up with a process or improvement that increases still production or the quality of the spirits being distilled. I can then market that improvement to all the other still makers, or start marketing stills that have that improvement built in.
How is marketing stills that have the improvement in it any different than Amazon marketing the ability to shop with 1 click?

Re:Legislate from the Bench (0)

Anonymous Coward | more than 6 years ago | (#23018444)

While I despise software patents just like most of slashdot, I hate seeing the solution being legislation from the bench.


Please remember that software patents were not allowed by Congress, but by legislation from the bench.

Not just harmful to "Open Source" (2, Insightful)

Fede Heinz (634397) | more than 6 years ago | (#23017156)

Kudos to Red Hat for this. However, arguing that software patents are harmful for open source falls short of the mark. In the end, they are harmful to everyone. In the best case, they raise the cost of software development for everyone, open source or otherwise, including anyone who does in-house software development. In the worst case, they make the development of certain programs impossible for anyone.

I think Bill Gates called it right years ago, when he wrote that patents would bring the industry to a stillstand, but I don't agree with his "solution" to acquire as many patents as possible: doing so only buys the patent holders a bit of additional time, i.e. they will be amongst last to be paralyzed by them (which of course is not without merit). But the patent creep will eventually catch up with everyone, leaving us with a software industry that can't do anything useful without paying toll to the patent trolls who won't do anything.

Re:Not just harmful to "Open Source" (2, Insightful)

Wordplay (54438) | more than 6 years ago | (#23017260)

I think Red Hat is being prudent in picking a battle they can possibly win. It's easier to substantiate costs and difficulty within your own sub-industry.

Any solution that covers open source has a good chance of covering the rest of the industry too. It would at least set a great precedent.

Red Hat's hypocrisy (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#23017452)

Wow, a company that never had an original software idea in its life is against patents!!
Of course, Red Hat is the very same company that has asserted its right to ignore all patents anyway, by ironically threatening anyone who complains about their patent infringement with massive patent suits by the OIN. Red Hat is typical of OSS companies - hypocrisy taken to the n'th degree.

Re:Red Hat's hypocrisy (1)

shentino (1139071) | more than 6 years ago | (#23018716)

No, it's Red Hat doing with patents what GNU and FSF are doing with copyrights.

Re:Red Hat's hypocrisy (1)

systemeng (998953) | more than 6 years ago | (#23021612)

The Red hat brief as posted by one of the later posters on this thread is absolutely excellent. Red Hat just calmly goes through the points of law about why patents on abstract ideas should not be allowed.

Why is this patented and so recently? (0)

Anonymous Coward | more than 6 years ago | (#23019046)

A patent on hash tables [patentstorm.us] in 2006. There is nothing terribly special about the data structure. Wtf?
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