Software Patents Could Stop EU Linux Development

sebFlyte writes "An expert in computer and Internet law has advised that if the CIID is passed in europe (which looks likely but is not certain) then the threat of patent litigation could bring European Linux development to a grinding halt." From the article: "There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated..."

Really?

"There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged."
Do you work for SCO?

Re:Really?

No, Microsoft.

Re:Really?

I guess it could infringe on the IsNot() patent, but then the counter would be that Linux is prior art and therefore IsNot() as a patent is invalid.

Actually, there's not a shred of evidence that Linux has any patented code in it. What has been agreed is that the current development model wouldn't stop such code entering the kernel. This is not the same as saying that this has already happened.

If it had, SCO would likely have presented this as evidence of potential violations as part of its case. That it has yet to present a single example, either of a violation of their own patents/IP or even a violation of someone else's, is strong evidence no such violation has actually occured.

The closest I can recall was an uncredited piece of network code that fell under the BSD license. That violated the author's copyright - not patent, just copyright - but was resolved. Oh, and some jerk tried to trademark the word "Linux" for an OS, suing Linus and a whole bunch of distros for trademark infringement. The thing was settled out of court, IIRC, with the a*hole actually getting his money back for the trademark filing. (That's like a convicted blackmailer demanding the victim reimburse them for the cost of postage.) The other terms of the settlement were sealed.

Linux uses stuff donated by SGI and IBM, but that code has been clensed of any IP. Both companies went through a lengthy - and impressively transparent - process to really illustrate just how clean the code was. The only stuff that's even remotely suspect is the NUMA code, but since that was one of the prime targets for SCO, you can be certain it has been gone over with a fine tooth-comb by patent lawyers and coders on both sides of the fence. Nothing has been found, because there's nothing there to find.

Hmmm.

There's probably a lot to that. However, there may be a solution. In wargaming, the best way of dealing with an entrenched enemy of considerable power was to use what is called a "soak-off" attack. The idea was to alter the dynamics such that they couldn't use the defences they'd built up, but where you could use the terrain to your advantage.

Applying that to this situation, you'd need to have a few "obvious" software patents that they would simply have to attack. They would have no choice. You don't care about sacrificing those patents - in fact, the only way to really win IS to lose them - what you care about is setting a precedent that blunts or even disembowels their own patents.

One thing American culture isn't too good on is that sometimes the best way to win is to lose. You just have to lose the right way. Precisely because that is a weakness in American culture, it is very unlikely American businesses would know how to deal with it. They'd be far more likely to win first and understand the consequences later.

Those more into Doctor Who, in particular the story The Five Doctors, will recognize this strategy as the one Rassilon uses. To Win Is To Lose, and He Who Loses Shall Win.

Re:Really?

Actually, there's not a shred of evidence that Linux has any patented code in it.

Excuse me??? Microsoft took out a patent on sudo. Yes, I realize that this patent should have been shot at the gate, but right now sudo violates a patent that was probably written by somebody who was in diapers when sudo was first written.

The fact that a patent is absolutely assinine and should never have been granted may lessen, but does not remove it's chilling effect on Linux development. That's part of why it's so important to leash (if not put down) the software patent industry.

Re:Really? Bullshit!

It is a fact that the Linux-kernal incorporates legally infringed copyrights.

Just look at MPlayer.

Why? MPlayer has zero to do with the linx kernel. Nothihng. Nada. Zilch.

Also, if you bothered to RTFA, you'll see that this idiot (Jeremy Mark Malcolm) who's being quoted offers ZERO proof that there is, as he claims:

... 'no question' that Linux already violates a number of patents, which could lead to further litigation.

In other words, he pulled his factoids out of someone's ass (probably McBride's or Gates - oops "Sir" Gates to us peons).

If you do a google for this guy, you'll see that he's no "legal expert", he's just some part-time (very part-time) lawyer trying to drum up a name for himself down under. His day job (for the last 7 years) is "Manager of Terminus Network Services" here [linux.conf.au].

Since 1998 he has been the Manager of Terminus Network Services which specialises in the use of open source software in networked environments and in the development of online systems and he is a Debian Developer.

The nazguls would eat him before breakfast w/o working up a sweat [tt].

If you really want to laugh, here's a google cache [216.239.39.104] of his home page.

"Fisheye Stiller" :: [2005-02-27 05:03PM]

I spent all day in Fremantle today on location for the shooting of a new
local independent feature film, Fisheye Stiller. I play a bank teller who
is held up, then goes on the chase to try to recover the money. We'll be
back in front of the cameras in April. Watch out for it at film festival
later this year

I mean, come on, you want expert advice from someone who describes themselves like this:

I am also a member, but not currently on the board or executive committee,
of various other organisations including Australian Mensa (but only so that
I can put that fact on my resume

bwaahahahahaha - gee, too bad that the VAST MAJORITY of geniuses aren't stupid enough or insecure enough to pay for the "privilege" of belonging to Mensa.

Anyone stupid enough to get suckered into paying some other group to say "Hey, they think I'm smart" is White House Press Corps "lob-a-softball-question-for-George" material.

Inevitable

It's pretty much like the speed limit, one can argue all day that doing 70mph is as safe as 60mph, but if the law is passed, and the limit is set at 60mph, everybody just have to slow down even your "common sense" says otherwise.

Laws passed doesn't mean it is valid.

In California, at least, if a city or some local government post a speed limit sign that says 10 MPH on an interstate freeway (for example), you don't have to follow it because the speed sign is not "reasonable" from an engineer/public safety perspective. All speed limit signs MUST be backed by engineering studies that says the proper speed limits should be set at x MPH for this stretch of road. If you get a ticket for speeding, and in court you demand the prosecutor providing engineering studies proof to back-up the vailidity of the speed limit, and they cannot, your case is then dismissed and you are free.

Therefore, even if the law is passed, it doesn't mean you should follow it blindly.

On another tangent, if the traffic is going 80 MPH, and you go 70 MPH on a 60 MPH highway it was possible to get a ticket for going too fast and too slow at the same time. Though usually the court will throw out one of the two.

Maybe Linux has violations in it..

..but don't they lose the right to sue after it has infringed openly for some time? Linux is as open as it gets. And it's been here a while too. Hell, it might even count as previous art against some of the more frivolous (ie most) software patents.

that is trademarks

Trademarks work that way. Patents can be used to sue people no matter how long they may have violated it with or without the knowledge of patent holder. and IANAL

Re:that is trademarks

"Patents can be used to sue people no matter how long they may have violated it with or without the knowledge of patent holder. and IANAL"

Not really true -- except maybe for the IANAL part, I don't have any info either way on that...

There is a concept in the law (U.S. law, at least) called laches -- basically, the law acknowledges that it is simply "unfair" for a patent holder (or any other rights holder, for that matter) to recognize that someone else is doing something wrong, and simply wait until the other guy has racked up damages, or whatever, before suing them. If a rights holder (such as a patent owner) waits too long to sue, he could lose the right to assert that patent against that particular infringer. The infringer could raise a laches defense, and if the court agreed that the patent owner "sat on his rights" for too long, the court could throw the case out.

Now, how long it too long? There isn't a set amount of time, it will depend on the overall "fairness" of the situation. It's not like a statute of limitations, where there is a hard line after which you can't take action -- rather, this is an "equitable" defense, where the court basically says, "yeah, Mr. Patent Holder, you do have a case here, but you waited way to long to bring it, and now it just wouldn't be fair to sue the defendant after all of this time."

An example would be holding a patent, seeing your competitor build an infringing product, and then waiting for 6 or 7 years for the product to take off in the marketplace, then suing once the company has made some money and racked up damages. That would be an example of where laches would come in -- if you wanted to protect your invention, you should have sued when you realized the infringing activity was taking place -- waiting for 6 or 7 years to rack up damages just wouldn't be "fair" to the other guy.

But again, that doesn't mean there is a statute of limitations are anything -- as long as the patent is still valid, you can sue someone who has been infringing for 10 years, as long as you only recently found out about the infringement. And even if you are barred by laches from asserting your patent against one guy, that doesn't mean your patent is invalid -- you can still go after other infringers.

This goes for patents, copyrights, trademarks, etc. It can also apply to torts, breaches of contract, really ANY type of court case -- but in most cases, the statute of limitations will kick in before enough time passes for a laches defense to be successfully raised. However, in certain types of cases, even a very short delay -- a couple of months even -- can be enough to raise a laches defense.

Re:Maybe Linux has violations in it..

IANAL:

"..but don't they lose the right to sue after it has infringed openly for some time?"

In a word, no. Patent violations are given no free pass if the holder chooses to ignore the violation up until the last hour.

"Hell, it might even count as previous art against some of the more frivolous (ie most) software patents."

It is true that Linux MAY contain prior art for some patents. But the costs of defending against a patent attack run at least $500,000. That's a pretty big chance to take for individual developers. Now companies like IBM, might take a different view.

Cheers,
Slak

Re:Maybe Linux has violations in it..

It is true that Linux MAY contain prior art for some patents.

Since there are no software patents in Europe right now, it would stand to reason that the Linux kernel would be prior art for any software patent filed after the inclusion of that feature in the kernel, if the ruling allowing them passes. Any existing development would be safe, but future development would run the same risks that development in the US faces now.

Re:Maybe Linux has violations in it..

Since there are no software patents in Europe right now

There are thousands upon thousands of software patents in Europe right now. Various countries' patent offices have been granting them for years, despite the fact that they cannot be enforced.

One of the more disturbing things about this patent legislation moving forward in the EU is that these will be grandfathered in and will come into full force once patents are allowed. I can't even imagine the feeding frenzy which will happen at that point, and frankly I wonder if these people have really thought it through at all. It almost certainly will cripple the software industry in Europe for years, if not permanently.

"An expert"?

Given the US has stupid patents already and the Linux development still continues there... I am not convinced how expert this "expert" is.

-ben

Re:"An expert"?

Chances are that once all major markets are covered by anti-patent law, interested parties (I mean Microsoft) will strike in force. Right now they are probably willing to hold back, in order not to scare off the EU.

Making Loud Noises while Stalking your Prey

At this time, many lawyers have advised their clients to postpone litigation at this point pending the CIID passing in Europe.

They understand that sueing open source projects at this point would:
* Scare away the Europeans from adopting software patents and turn them into an open source safe-haven by creating a good public case against software patents.
* Have no financial benefit whatsoever.

If Linux/Open Source projects/foundations haven't been sued yet, it's because it is currently being stalked by a hungry pride of lions who want to gaurantee they capture their prey.

Antelopes are skittish for a reason.

Never going to happen

It is impossible to stop the development of software against someones will. It may have to get developed under certain restrictions, but it is impossible to stop because of the inevitable communication through the internet. This is how software is so easily outsourced and it is the same reason development for linux cannot be stifled through litigation, but rather only through disinterest. my take

Why does everything has to be patented??

Why does everything has to be patented?? Does anyone have an answer?

Re:Why does everything has to be patented??

Because if the everything can be patented, the status quo would have eliminated all competition. There could be no young upstart setting new trends because chances are, it would violate at least one patent.

Once software patents are valid throughout the world the current tech status quo would have no incentive to innovate. Technology will come to a stand still. Prices will rise. And we will all suffer.

Re:Not ALL of us will suffer. [OT]

Just look at the **AA, still clinging desprately to a business model they must know has failed.

If making millions of pounds a year profit is classed as failure, I would love to see your idea of success.

Re:Why does everything has to be patented??

In a nutshell, because coming up with new innovations is hard and risky, but exploiting past innovations is safe, and eveyrbody loves a nice, safe cash cow.

Ostensibly, the patent system is to incent inventors to make new creations. Historically, there is no empirical support for the idea that this is necessary or even useful, but it makes kind of a rough intuitive sense: commercializing an invention takes work. Why would somebody do that work if anybody could simply copy the idea?

Well, the answer is, to stay ahead. Historically, when patent protection was weak (as it was until the start of the 20th century in the US), companies innnovated like mad, trying desperately to keep their new methods secret fora few months longer to exploit a short term advantage. This is not a pleasant life if you're an investor: it's much easier and more predictable to milk a cash cow.

Overall, while patents do probably help inventors somewhat they also hurt them in other ways. Creative people have a dual relationship to ideas. They create their own, and they make use of others'. Invention is both a process of originality and derivation.

Period.

It follows that creative person's relationship to intellectual property has a kind of balance to it. Creative people would benefit from a balanced patent system which had high standards for "originality" (which is inherently fuzzy), relatively few patents are granted, and they persist for relatively limited terms -- long enough for the inventor to be able to sell and profit from his services, and not any longer.

However investors who hire probably the majority of inventors these days, do not have a balanced interest in intellectual property. It's entirely unbalanced. For investors, exploiting a monopoloy on past innovations forever would be simple and easy, and if innovation stopped, it wouldn't matter as long as they got in the door in time.

The whole software patent things stinks of a land rush. They're going to divvy up and privatize knowledge of how to do things, and then squat on it for as close to forever as they can manage. If innovation grinds to a halt as a result, it won't matter, because they'll have their cash cows.

Lousy article

Why did they bother writing it? There are neither examples, illustrations, nor case studies that show WHY Euro Linux or other open source projects will be severely hampered. I'm not disagreeing with him, but his statements have all the informative value of Microsoft FUD.

This would halt the entire software industry

Legalizing software patents in Europe would not only be bad for Linux and other FOSS projects, it would be bad for the traditional closed source software industry too.

The EPO has already illegally granted over 30,000 software patents in Europe. Because these patents are illegal they cannot be enforced in court. But this means that the european software industry doesn't care about these illegal patents.

If software patents are legalized, these illegal patents suddenly can be enforced in court.

It is likely that the european software industry will come to a standstill for years after software patents have been legalized, as they have to spend their resources fighting in court instead of doing research and innovation.

Patent articles on patents

If this software patent passes, I will patent a software process that allows publication through HTML or any machine readable code of any information relating to software patents. It will be akin to a Hello World program in simplicity and this will do a) Stop these articles being posted every two days (although I realise they are relevant) and b) Stop the corps who want US-style software patents form ever having an accesible database to ever search for those patents

I will then own the rights to ever have an information page on any patent stored electronically. This is called legislating yourself back to the stone age but is theoretically possible in the age of free-for-all software patents.

Re:illegal activity

Who said anything about 'knowingly'?

The problem here is (or at least this is the belief held by many) that it's nearly impossible to write software without unknowingly violating a patent. This leads to the inevitable conclusion that Linux, Windows and every other large software package probably violates various patents.

Patent Violations

"There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated..."

There is also "no doubt" that Microsoft Windows and every other operating system has patent violations.

Hmmm, Sue all Windowws users .....

Re:You would think that the EU would wake up

Thousands of out of work people that were previously high-paid, hence good tax earners.

<SARCASM>

Yeah, tens of thousands of software engineers will probably lose their jobs.

But who cares about sleazy people like them? They only research and innovate instead of doing something productive.

The good thing is that we will get a lot of new jobs because of this. Thousands of fine patent lawyers will get new jobs.

</SARCASM>

There is a reason that 47% of the swpat-positive replies to the hearing that the European Commission held were from patent lawyers and patent offices. [eu.int]

Heavy assertion

There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged.

This looks to me like the FUD we have been hearing for a while now. This kind of repetitive rhetoric (argumentum ad nauseum) serves one purpose: to instill in the minds of decision makes in the IT industry (those who hold the strings of the pruse, or those who recommend purchases to them) that they are at risk if they chose Linux.

If there are violations let us see them! Show us!

The worse that can happen is those portions will be recoded to be patent free in days or weeks.

Microsoft in Violation of Patents?

According to an IP lawyer I once had beer with, and since confirmed numerous times in the press, most large software companies have violated each others' patents - numerous times. But since everyone has "injured" everyone, most no one sues - since they will simply get counter-sued on a different patent.

That said, it seems obvious that the MS kernel, like probably all other kernels, contains IP violations. The difference is that only the FOSS kernels are open to public scrutiny.

So commerical companies can keep their IP violations largely secret, while FOSS ones get vetted publicly. Anyone wanna bet whether a closed kernel or open kernel has more IP violations? Does anyone believe that the MS kernel is completely free of IP violations? Anyone wanna buy a bridge?

Re:Microsoft in Violation of Patents?

So commerical companies can keep their IP violations largely secret, while FOSS ones get vetted publicly.

Also, does the FOSS comunity actively seek out new patents? That is, do FOSS developers patent those innovations that they produce with the intent of using them in a counter-suit? Even if the individual developers did (we're not talking the likes of IBM, and Novell, but rather Linus et al.), is there some way that the collection of patents could be transfered to such individuals for use in countersuits? Without a large patent portfolio, such small developers are easy pickens. The entire system is unbalanced and corrupt.

Its too bad...

that this couldn't read "Software Patents Could Stop EU Mircosoft Development"

Aren't we forgetting 'business processes'?

When we focus on the damage software patents can do, haven't we forgotten about the other nasty in that wording: patenting of business processes?

I mean fluff like Amazons one click ordering and shopping lists and all the other stuff of a non-technical nature that can be patented under that wording, just as long as its implemented in software...

This was another nasty hole the Commissions/BSA wording had in it that the Parliament tackled.

After all a patent were never intended to protect 5 minute non technical ideas!

It might be easier to explain *that* problem to the Commission even if you can't get them to understand the problem with Software patents.

Hasn't slowed US Linux Development

then the threat of patent litigation could bring European Linux development to a grinding halt

Threats of patents hasn't seemed to slow US Linux development, so why would it have any affect on EU Linux development?

Re:Hasn't slowed US Linux Development

Fedora/RedHat lacks mp3 and divx/mpeg/etc playback because of patent issues. Mandrake (France) and SuSe (Germany) ship with a lot better multimedia experience. WPA (802.11x) is another patented like hell tech, so don't hold your breath for a smooth out-of-box wireless support on RedHat either.

As more patents are filed all the time and old ones get enforced, the Linux experience will get dampened even more.

While the western tech media has blamed Chinas relucancy to adopt 802.11x on their jingoism, It is more likely that China doesn't think that RAND terms of those patents are that Reasonable and Non-discriminatory after all..

Unimplementable

IMHO, such a law, even if it will be in place and patents will be rewarded based on it - the real test of it would be in a court room. Just as many people said that the real test of GPL is in a court room (and it was successfully defended in a German court) - the real test of this will be in court room. That's when the fine distinction of "existing state-of-art derived work" as opposed to something really oiginal will be put to test. As well as how really "patent-worty" software implementations are.

If this law passes, I will be the first one to patent boolean logic :).

Osho

Could I get some help here?

I've been Googling for acknowledgement of Linux kernel patent violations. Other than statements by SCO, I haven't found any.

Does anyone know what Jeremy Mark Malcolm was talking about when he wrote: "There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged."?

He is described as "an information technology lawyer specialising in Internet-related law...". Could this just be twisty English, saying that: Some open source software is acknowledged as having patent violations and that The linux kernel is an example of open source ?

Patent FUD

The big players are protecting themsleves against people playing them for patents that they make use of. The lawyers are coming in and seeking to provide revenue for greedy people, and the smaller players are hoping to not get noticed.

I think that a compromise should be sought; the litigation-crazy equivalents of the ambulance chasers need to be eliminated from this game because they do not add value to the computer industry when they sue. The interests of the small players need to be defended against this; the larger players are large because they have defended themselves and the need to defend the money-making side of research in the computer industry will remain.

I suggest a middle ground for patents that reflects the speed of progress in information technology: a three year patent without protection while it is being assessed and which can only be defended by its owners if a product making use of that development is on sale. This supports the people who want to innovate to sell products without being too restrictive on the people who can't afford to protect their developments with extensive litigation.

A more wacky alternative: to include in patent specification that an example of the computer code required to perform the patented task be made available under a free-as-in-both license after a protected period of three or five years.

Moderate -1 FUD

Why was this story, with zero facts and only the opionions of some lawyer posted. We have Groklaw to tell us the status of the EU software patent wars, and that source will also more realistically what it all means without the FUD.

Could this be FUD?

It's odd how every time a 'linux is on the edge of total destruction' article appears, it tends to come from a source that shuns it. I went to the downloads section and they have windows/mac/mobile sections. Could it be that ZDNet is about as interested in linux as microsoft is in making a better product for the sake of making a better product regardless of their development cost? My long time instinct is to say that ZDNet is so tightly focused on microsoft and mac they're pretty much against anything not 'mainstream'. Also, if there is 'no question' as to linux patent violations, why did the judge in the SCO v.s. IBM case stop short of directly accusing SCO of a dog and pony show and dismissing SCOs charges? Am I missing something, or is this another helping of FUD meant to feed the uninformed?

Patent law getting more and more ridiculous

Patents have always existed. In the old old days it was just called "the King". Didn't matter what it was - if the king wanted it, then you were in violation of the patent.
In todays world like at that time, there is a need to treat intangibles as real estate. It is of course - all about money. Or is it? Today it seems to be increasingly about control specifically about control of further development. Obviously next to having a pile of it, the best thing would be if you can keep anybody else from also getting a pile of it.
I think there is a fine line between being able to capitalize on your investments and to assert control of future developments. And we have long ago crossed this line.
I think that hefty taxes should be asserted by the state to maintain copyrights and patents. A yearly 2% of estimated value would be sufficient. Too many companies are just sitting back not doing anything except capitalizing on litigation. It doesn't matter if you are right or wrong. Littigation is very effective business weapon which can drain any competitor given enough money. And the only way this machine can be effective is when enough laws and patents are available. It is my opinion that these laws are benefitting very few by selling out on basic human rights. In particular the right to earn a living.

How about forced Open Source?

How about we insist on forced open source as a price for patents?

I mean:

* You can't determine prior art if all the software is closed source.
* You can't defend against patents if your prevented from showing the prior art.

Therefore in exchange for patents, all software must be open source. Not just the patented bits (because unpatented bits may be prior art for future patents) - all of it.

That would fit with the Vacuum cleaner/Steam engine model, since as soon a Dyson puts out a new Vacuum cleaner its obvious from looking at it how it works. So it would put software in the same position.

FUD

just one more columnist clamoring for attention. all this talk of linux infringing patents and yet no one is yet to show actual code. he shows his true colours by claiming it's acknowledged yet doesn't say by who.

You can't patent everything in the EU!

There is a huge difference between the US and the proposed EU patent system. While in the US "prior art" is all that practically matters, in the EU a patent is described as being "a significant advancement to the state of the art in that field". This means that for something to be patentable, it must be non-obvious. This is clearly open to interpretation and in any case of patent infringment one could claim that said patent is invalid because it is not really state of the art.

Another point to remember is that patents DO expire (well, at least in my country). I'd bet that in any reasonable patent scheme the Windows 95 patents should have expired by now (which is a reasonable time frame for any company selling software, after all MS no longer supports Win 95!!).

P.

Re:By who?

You know, THEM! Those folks. The ones that keep stealing your soda, paper clips and hiding your scissors. The ones that take your postit notes and hide them under your keyboard. THEM!!! The ones that email you about prescription drugs and penis enlargers. THEM!!!! The ones that dress your cat up in fancy lingerie when your off on business trips, drink your beer and hide the remote! THEM!!!!

Time for my medication already?

Re:copyrights vs patents

A patent is a time-limited monopoly on the ability to produce a particular thing, granted for some technical innovation that has not been seen before. It's meant to protect inventors from others swooping in and reverse engineering the fruits of their labors and then taking away their reward. Pretty stupid when applied to software. Anyway...

Copyright is a legal idea that says the author of a creative work (much more applicable to software) has the right to control who may or may not copy or distribute that work for a limited time. It sets limits on what others may do, but allows copyright holders to grant additional rights if they choose. The GPL is an example of authors choosing to grant rights that copyright normally restricts, in exchange for any improvements to the original work.

Of course, since copyright is extended every time certain works reach an age where they are perilously close to becoming public domain, the "limited time" portion of the definition (in the US, anyway) is a bit of a farce.

Anybody with a better handle on this, feel free to correct me.