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The Linux Kernel and Software Patents 629

Posted by CmdrTaco
from the sumthin-to-think-about dept.
batsman writes "The Linux VM system programmers are discussing the software patents that could block further development of important features. Alan Cox brings up several SGI patents covering the techniques they were considering, and Daniel Phillips has found some patents that affect features already present in Linux. Linus Torvalds thinks they should ignore these patents and pretend they don't exist until they cause troubles. How long before kernel developers are sued for patent infringement?"
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The Linux Kernel and Software Patents

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  • by Anonymous Coward
    If Linus has no problem violating patents, I would have no problem violating the GPL. Intellectual property is intellectual property, whether it's covered by a copyright or a patent or a trademark or whatever. If Linus intends to willfully violate someone else's IP, he should have no problem with me violating his IP.
    • by cduffy (652) <charles+slashdot@dyfis.net> on Friday August 23, 2002 @02:24PM (#4128191)
      If Linus has no problem violating patents, I would have no problem violating the GPL. Intellectual property is intellectual property, whether it's covered by a copyright or a patent or a trademark or whatever. If Linus intends to willfully violate someone else's IP, he should have no problem with me violating his IP.

      "IP is IP"? Not quite. Software patents in particular are very legally questionable. It's only recently that they've been recognized inside the United States, and they aren't recognized at all in many other places; ditto for business algorithms.

      Patent law was made to protect inventions -- physical pieces of hardware. I see no need to respect any extensions thereof, particularly when they have such unreasonable results.
      • by johnjones (14274)
        frankly patents is going to bite the U.S. in the arse

        why because simply put you dont think that there are people out their violating the GPL now ?
        (e.g. Microsoft may have changed parts of linux kernel and I dont see those changes published )

        people clone hardware all the time
        (company did some Set top Box work did well until it sent a few to east and low and behold clones apear)

        frankly all the real development will be done in china and to hell with the WIPO

        (and you would think biotech is differant 150 grand and synth any protein you like sod the patents )

        regards

        John Jones
      • by capologist (310783) on Friday August 23, 2002 @02:43PM (#4128427)
        I think that much of the problem stems from the "non-obvious" bar being set too low.

        When a company invests a lot of time and money to come up with an idea that the world would otherwise not have had, I think that the company should have a right to protect that investment through patents. Without such protection, they won't make the investment in the first place, so the idea won't be conceived, and society will be all the poorer for that.

        The problem occurs when an inevitable idea becomes the property of whoever gets to the patent office first. When that happens, the law is taking an idea that would otherwise have belonged to society and general, and barring everybody except the owner from using it.
        • by SerpentMage (13390) <ChristianHGross&yahoo,ca> on Friday August 23, 2002 @03:19PM (#4128744)
          Patents has NEVER brought anything good to society. All patents do is create a monopoly.

          1) There are no truly unique inventions. Everything is an evolution of everything else.

          2) The car was patented. While the patent of the car was active cars were not built and they were low quality, etc. Ford got around the patent and made cars that everybody could buy and drive. Windsurfers were patented. The company windsurfer held onto the patent and in the last couple years of the patent sued the hell out of companies. Result companies went under and Windsurfer took the money and ran. Sure the original patent holders invented the car and windsurfer. But those same inventors did nothing to further the invention.

          3) Time has shown again and again that ideas or concepts are worth nothing. Execution is worth everything. There are hardly any companies that survive only on patents. If you look at most big companies they survive because they know how to run a business.

          4) Now and the future the only ones penalized by patents will be the "western" world. The rest of the world does not care about patents and they clone, etc. Why? Because patents introduce a penalty that only the "western" world can afford.

        • by cduffy (652)
          What you miss is that a software developer's entire job is coming up with ideas and methods of implementing them and then describing a methodoly to implement those ideas in such a formal language that they can be executed by machine.

          Which is to say... the only really important thing that a really good programmer ever does is come up with ideas; certainly there's a tremendous amount of drudgework involved in debugging, and making different systems talk to each other, and so forth... but the really core thing that extremely good programmers can do and only average programmers can't is come up with new algorithms.

          If coming up with new algorithms is so core that it's part of the job, then why the hell should anyone else be prevented from implementing a newly developed algorithm?
      • by Phronesis (175966) on Friday August 23, 2002 @03:45PM (#4129046)
        Patent law was made to protect inventions -- physical pieces of hardware.

        Funny, the Constitution [archives.gov] says (Art. I, Sect. 8)

        To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and
        Discoveries.
        There is nothing there that says the "discovery" needs to be a machine and not an algorithm.

        Thomas Jefferson thought patents should be just for machines, but he was not the king of the U.S., and others thought differently. The Patent Act of 1793 [publicknowledge.org] states that the inventor of

        any new and useful
        art, machine, manufacture, or composition of matter, or any new or useful improvement thereof
        is entitled to a patent. Note that "arts," not just machines, are entitled to patents. The 1952 Patent Act revised this to read,
        Whoever invents or discovers any new and useful
        process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

        Again, not just machines, but processes were elegible according to the letter of the law to be patented. Algorithms and business plans seem to me to be processes and hence, are not automatically excluded from the wording of the historical patent laws.

      • by j_w_d (114171)
        I do believe that Linus' point just might be that a patent is supposedly for a "non-obvious" idea. If you or he can come up with an idea without benefit of digging it out of someone else's patent, the idea can not have been as obscure and "original" as the jackass that patented the idea thought, or the over-worked, under endowed patent office clerk assumed. The fact that some mediocre mind has a brain cramp and actually has an idea, doesn't mean that many others, more nimble minded had not already devised,would not,or could not devise the self-same idea independently at need, because to them it was and always had been and would always be obvious. Far too many of the mentally lame file patents these days shrilly proclaiming their invention of the obvious. Worse, they turn about and sell their patents to the unscrupulous, who then display all the worst behaviour of parasites.

        In fact, I suspect that many creative minds don't bother patenting ideas, while those who do, do so because of the fear that they may never again experience the rare event of a creative thought.

    • There is the old problem of referring to IP. Be more specific. A patent != license.

    • Patents and copyrights serve different purposes. Defense of a patent is the responsbility of the patent holder. Copyright is a presumed protection. Patent infringment is a basis (IANAL, so please correct me if I am arong) for civil action, not criminal sanction. Violation of copyright (which is what underpins the GPL) has criminal consequences.

      If you violate a patent, you must either cease or pay a royalty. That's different from facing a criminal sanction. The comparison you make is unfair.

      That's not say that I think ignoring patents until they are a problem is the right approach...

    • If Linus intends to willfully violate someone else's IP, he should have no problem with me violating his IP

      Read his list post again -- he said he would willfully remain ignorant, and deal with any patent issues as they are brought to the kernel by the patent holders (as opposed to actively seeking patents on things that might one day be implemented in the kernel, slowing development significantly). Usually, as was the case with the free SVQ1 Sorenson codec, if patents are discovered which would impede development, a new algorithm that does the same thing can be created or implemented.
    • by JoeBuck (7947) on Friday August 23, 2002 @02:36PM (#4128342) Homepage

      This is whythe term "intellectual property": it causes people to be confused into thinking that copyrights are the same thing as patents, when they are very different.

      Did you know, for example, that many patents are invalid? That is, most patents are known by their owners to be so flawed that they carefully ask for just enough royalty so it's cheaper to pay than to go to court, but even so, about half the time a patent makes it to court get tossed out?

      • Whoops, I hit the wrong button and posted this one before proofreading. I meant to say "This is why the term 'intellectual property' should be avoided". Sorry about that.

    • RMS makes a better counter-argument [gnu.org] than I could make.

      Also see the last quote on this page [berkeley.edu].

      Patents cover ideas, whereas copyright covers (written) "works".

      -Peter
    • Intellectual property is intellectual property

      There is no such thing as "Intellectual property," and the term is used primarily to confuse people like you into thinking the way you are. Copyrights are not patents. Copyright is automatic, patents can be challenged and found invalid. You get copyright on anything you create. Most things aren't patentable. When you group these very distinct concepts under "IP" you fool yourself into making statements like the one you just made.

      Either way, both sets of rules include provisions for limited length of rights. Essentially, even when you have a copyright or a patent you don't have any "property", after a period of time you loose those rights.
    • by Anonymous Coward
      I suggest Linus and others move to IPv6. With trillions more IPs, we won't have any more problems with having to violate each others' IP.
    • by Sloppy (14984) on Friday August 23, 2002 @03:29PM (#4128867) Homepage Journal
      If Linus has no problem violating patents, I would have no problem violating the GPL. Intellectual property is intellectual property
      What a festering crock.

      It is trivially easy to avoid infringing someone's copyright. About all you have to do, is not copy someone.

      It is virtually impossible to write moderately complex software without infringing someone's patent. All you have to do, is spend many many thousands (millions?) of dollars comparing every piece of your program to everyone's patents.

      There is no moral comparison. Copyright makes sense. Patents on stuff that anyone could accidently reinvent without even trying hard, does not.

  • Sued for patent infringment? Let's think about this for a sec...

    It's posted on Slashdot.
    Lot's of people read Slashdot including lots of scummy people...
    Um.... Now?
  • Ridiculous (Score:2, Interesting)

    by jimmy_dean (463322)
    This is absolutely ridiculous and I agree with Linus. This is where patents are extremely stupid. As long as someone is not copying the code verbatim, then I don't think it should infringe on the patent.
    • Re:Ridiculous (Score:2, Insightful)

      by LinuxGeek (6139)
      Linus said "The fact is, technical people are better off not looking at patents. If
      you don't know what they cover and where they are, you won't be knowingly
      infringing on them."


      It can be very important to a legal proceeding if someone didn't knowingly infringe upon a patented mechanism. If you did know and someone can prove you willfully infringed on patent protected work, then prepare to pay your lawyers.

      • Re:Ridiculous (Score:5, Insightful)

        by kisrael (134664) on Friday August 23, 2002 @02:42PM (#4128418) Homepage
        It can be very important to a legal proceeding if someone didn't knowingly infringe upon a patented mechanism. If you did know and someone can prove you willfully infringed on patent protected work, then prepare to pay your lawyers

        Yeah...sometimes I wonder about the whole issue of The Nonobviousness Requirement [lawnotes.com] in Patent Law. I mean, jeez, thinking about problems and coming up with solutions is all programmers do...if someone reinvents the process described in a non-publicized patent, it seems to my non-lawerly self that there's some case to be made for the "obviousness" of the patent.
    • As long as someone is not copying the code verbatim, then I don't think it should infringe on the patent

      That would be a copyright violation.

      Patents are ideas. ie lightbulb, diamonds from human remains.
      Copyright is the fixed form. ie compuer code, or a book.

  • If I had to guess, considering the current market trend in the US to sue first, ask questions later, I would say that they most likely don't have much time at all, unfortunately they really don't have a legal leg to stand on either, and I'm not sure if the best policy is really to just wait until it causes problems, or to perhaps negotiate a fair use price with the patent holder(s). But I assume they do know what they're doing, and most likely have already sought legal counsel, so hopefully they won't have any problems...
  • "look everyone, them there linux varmints are pirates and theives!! patent infringers!! patent infringers!!" And of course, Linux is the "respectible" free UNIX w/out the Devil on their shoulders, so obviously the BSD people must be worse then. It'll adversely affect all of the free software community and make Microsoft look "right" -- free/open software is for pirates and h4x0rZ and shouldn't be trusted w/ your business.
  • Linus... (Score:3, Insightful)

    by danheskett (178529) <danheskett@gmail.OPENBSDcom minus bsd> on Friday August 23, 2002 @02:25PM (#4128212)
    Well, the whole thread is kinda of interesting, if it ever goes to trial, it will be slam dunk for the side for "willful violation". I mean, they are actively talking about ignoring the patents, as if they don't exisit.

    Chances are that like most patents recently filed the ones in question are junk. The best move is probably to form the Linux Expeditionary Legal Team - LELT? - to proactively get these patents derecognized.

    Ignorning legal problems will only cause pain when the piper comes. Ignorning problems and telling everyone how you wilfully and with clear knowledge of relevant law disregard the patents is a good way to set yourself up for a big directed verdict.

    You can't kill Linux, but if the kernel team got fined (individually) a few million apiece, well, that would probably not help things.
    • Well, the whole thread is kinda of interesting, if it ever goes to trial, it will be slam dunk for the side for "willful violation". I mean, they are actively talking about ignoring the patents, as if they don't exisit.

      Well, IANAL, but I think Linus's whole point was that by being plum ignorant about whether or not any patents exist in a given area, then no one has a leg to stand on to say that you willfully violated their patent, whereas if you knew it existed then they could claim that you did.
      • Except that by conspiring to do this, he has confirmed that he did in fact know about the patents in question.
    • I don't think it makes much difference in most countries if you infringe a patent deliberately or negliently (or because of ignorance).
    • Re:Linus... (Score:5, Insightful)

      by Khalid (31037) on Friday August 23, 2002 @02:56PM (#4128534) Homepage
      I think what he is meaning by that, is the fact that patents are de facto validated in court and not by the USPTO, as the latter grants nearly every stupid and insignificant patent that comes by.

      In fact nowadays you can't write a single line of code without a chance of having a stupid patent somewhere which forbid it ! this is just slightly exaggerated.

      So when and (if) someone dare to sue a Linux hacker about some stupid patent, considering all the interests now in stack, you will probably have someone with deep pockets (or a big defensive patent portfolio, can you say IBM) who will jump to defend it.

      I think this is the best strategy, as Linux is probably already infringing hundreds of patents, and nobody can review all the thousands patents that may apply every time he writes a single line of code, and this why patents are bad and impractical

      Anyway experience has shown that 95% of the time, Linus always does the right thing , (well this is just bit exaggerated to, but not far from the truth) :)
      • Re:Linus... (Score:3, Funny)

        by Buskaatt (124333)
        I think we need to port that little M$ Paperclip to our favorite application development environments so it could warn us ...

        Developer: (click-click), "#!/usr/bin/python"

        Paper Clip: "Hi! It appears as if you are violating a patent! Would you like to:

        1. Give up your house, boat, computer, and first-born in court,

        2. Save me the trouble of calling in the black helicopters and stop development now, or

        3. Ignore it like Linus?"


        Of course that would be violating a patent too ...
    • Re:Linus... (Score:4, Insightful)

      by Znork (31774) on Friday August 23, 2002 @03:15PM (#4128697)
      It's annoying, but it's a pretty solid and very common practice for anyone involved in software development. Dont Look At The Patents.

      Patents have become such a complete minefield that if you spent time researching software patents while programming you might just as well quit the buisness. You cant develop anything beyond 'hello world' without risking running afoul of software patents. They're overly broad, they have decades of prior art, they're trivial and should never have been awarded in the first place, but they're there. And it will cost to get them overturned.

      What it comes down to is that basically you have three choices. Either you dont know about them, or you know about them and violate them or you quit developing software.

      And out of those choices not knowing about them is the least painful and/or dangerous one.
  • by owlmeat (197799) on Friday August 23, 2002 @02:25PM (#4128215)
    Any patent can be legally used for home or hobby use. The problem will lie with commercial exploitation of the patent. The developers are off the hook. Not so easy for Redhat et al.

    • by nuggz (69912) on Friday August 23, 2002 @02:34PM (#4128325) Homepage
      No, the developer may be sued by the patent holder.
      His freely available illegal implementation decreased the market value of the legal version, and can be held responsible from the patent publication date, not from the date he is notified of infringement.
      This also assumes that the patented algorithms were released publicly before the patent was filed. Also you can't ignore a known patent infringement for many years. Like trademark infringement, you must act when you gain knowledge of infringement.

      IANAL, this is my understanding of patent law in the US.
      • by kfg (145172) on Friday August 23, 2002 @04:11PM (#4129288)
        for you asseration that patent holders can't ignore infringement.

        Patents are NOT trademark like.

        In some legal senses trademarks are not owned. One merely retains the *temporary* right to associate one's business with a particular mark. That right is maintained only so long as in the opinion of the *public* that business is uniquely identified with the mark. That's very important. It is the *public* that determines the validity of a mark. I cases where a mark is called into question in the courts the court only rules whether or not a particular mark uniquely identifies a business in the *public* mind. He does NOT assign *ownership,* only the rights for USE. One *registers* one's use of a mark to show that it was in use by you at a particular time. One does not have *title* to it. Thus for a mark to remain current the courts have ruled that one must defend it's association with one's business vigorously and a mark abandoned becomes once again available or even in the public domain.

        A patent is completely different. It is considered true property, like your house, and like your house you can allow people to use it as you will, even to the point of ignoring neighbor's children using it as if it were their own while 'capriciously and discriminatorially' prosecuting another neighbor for trespass. One is given *title* to a patent, just as one is given title to a house, and many of the same legal principles apply. Evidence of this is as near as the headlines, as nearly every day some company discovers they own title to some patent that they didn't even know they had and begins enforcing it, often times against only one or two specific 'people' while continuing to allow all others to freely ignore it.

        Kind of like allowing one neighbor to use your lawnmower without asking. It doesn't cease to be your property and you retain the right to, at any time, deny him it's use, or to prosecute a burgler for stealing it.

        All perfectly proper, legal, and within the general philosophical framework that governs all property law.
    • by capologist (310783) on Friday August 23, 2002 @03:10PM (#4128641)
      From 35 USC 271 [findlaw.com]:

      (a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
  • by pete-classic (75983) <hutnick@gmail.com> on Friday August 23, 2002 @02:26PM (#4128224) Homepage Journal
    1. Ignore patents.
    2. If you get sued:
    a. Replace the infringing code with code that does not infringe on that particular patent.
    b. Sit back and watch patches back to the infringing code appear.
    3. Laugh as the corps realize that they are completely ineffective.

    We now return you to your regularly scheduled revolution.

    -Peter
    • except that companies can sue for loss of income because of it, and tht isn't something you can just patch away. The thing is, who would have to pay is the real question, the maintainer or Linus, or some anonymous person that sent in the actual infringing code?
  • by swagr (244747) on Friday August 23, 2002 @02:26PM (#4128229) Homepage
    The patented parts of the kernel were deveopled in Malta, Egypt and Madagascar where no one holds said patents.

    Also, kernel.org releases the SOURCE code. And it's more of a "reference implementation" or "proof of concept" than anything else. If someone actually COMPILES the kernel without first removing patented techniques, well, that's their own problem.
    • It's people distributing the kernel in places where the patents are valid who could get bitten by this. It matters not where the code was written.
    • Are you sure that European patents have no effect in Malta? ;-)

      It seems that the EPO council has got a member from Malta...
    • You're quite mistaken about the bigness of the deal. A large corporation with an investment in Linux could quite easily be gone after for license fees or be serviced with a cease and desist order. It's only a matter of time before these sorts of patents come out of the woodwork, actually.

      C//
    • The best answer I've seen to the whole question came from a developer who made one very good point

      "Why worry about the US, its only 4% of the population"

      I guess the fact he was chinese gave him a rather more balanced perspective on life. For the SGI patents it appears that SGI have already shipped code under the GPL using those patents so it should be a non issue.

      However in the USSA you cannot simply ignore the problem. A kernel which is known to violate patents isnt shippable by vendors, and Debian would have to cease using it in the USSA too. Debian is going to be in a tricky position if the kernel is in the non-US packages.

      Could we end up with a world where the US is the one nation that can't use free software - ultimately thats quite possible. After all the US has many other fields where some large corporations systematically obliterated any small competition.

  • by Syre (234917)
    Why post this on slashdot?

    If anyone at SGI knew about this and wanted ignore it, now they can't because it's too widely publicised.

  • Who is sued? (Score:5, Interesting)

    by jmv (93421) on Friday August 23, 2002 @02:26PM (#4128237) Homepage
    How long before kernel developers are sued for patent infringement?

    This brings up an interesting question. Who gets sued in this kind of situation? The one who writes the code, the one who compiles it, the one who distributes it or the user? Technically, there shouldn't be anything wrong with the source code itself, since it is not a product or a device. An example is that the ISO source code is freely distributable, even though there are many patent problems. Now it's it's not the developers, who is it? Unisys seems to have tried going after GIF users (web sites), while some others seem to try differt approaches. This is one really bad thing about software patents.
    • Re:Who is sued? (Score:5, Insightful)

      by kcbrown (7426) <slashdot@sysexperts.com> on Friday August 23, 2002 @04:23PM (#4129407)
      This brings up an interesting question. Who gets sued in this kind of situation?

      Who gets sued in any situation? The people with the most money, of course!

      Or, in certain situations, the targets of the suit are chosen based on the amount of damage the suit will end up doing (so Linus is an obvious target no matter how much money he may have).

  • "...or you just hire a hit-man to whack the stupid git."

    Is it just me, or is this very immature speach? It certainly doesn't do anything to make me respect Linus.
    • Is it just me, or is this very immature speach?
      The one sure rule of existence is "do whatever you want and live by the consequences".

      If Linus wants to hire a hitman or talk about hiring a hitman. Let him do it and see what happens. People have done worse.

      It certainly doesn't do anything to make me respect Linus.
      You should watch yourself, or you might be on that hitman's list.
    • by Bruce Perens (3872) <bruce@perens.com> on Friday August 23, 2002 @02:55PM (#4128525) Homepage Journal
      I didn't like it either. How do you "whack" Microsoft? Fly a jet plane into their Redmond campus? I'd rather not be identified with the sort of person who does that.

      Linus isn't interested in standing up for our right to code. He'd doesn't like politics, and would prefer to ignore the problem. But the problem won't go away. Rather than say immature stuff like that, it's time for him to use his notoriety to speak publicly about the problem and why it should be fixed.

      Bruce

      • by RadioheadKid (461411) on Friday August 23, 2002 @03:20PM (#4128760)
        I've never met Linus, but from reading the Linux kernel mailing list over the years, I think he's doing just fine. Everyone is so quick to find some cause to rant about, but he's saying, I'm here to develop the kernel. He's not a lawyer, nor has he ever been known for his activism, but quite honestly, I don't want the head kernel architect to be a political spokesman, that just slows down projects and gets the developers thinking about the wrong things. Does this issue have to be addressed, definetly, but I think he knows he's not the one to do it. It's better suited for Redhat or maybe HP, not developers.

      • I didn't like it either. How do you "whack" Microsoft? Fly a jet plane into their Redmond campus? I'd rather not be identified with the sort of person who does that.

        Anybody who takes the 'whack' comment seriously is an idiot, and probably believes that penguins really can charge at you in excess of 100 miles per hour.

        Linus isn't interested in standing up for our right to code. He'd doesn't like politics, and would prefer to ignore the problem. But the problem won't go away. Rather than say immature stuff like that, it's time for him to use his notoriety to speak publicly about the problem and why it should be fixed.

        I interpreted Linus's outburst as an admission that he really does care about this issue a great deal but hates the idea of his core developers being distracted by it. Personally I don't want to see Linus at all distracted by this either. His energy is much better spent quarterbacking the development effort. Actually, it's up to people like you, Bruce, to take the lead.
      • Ignoring the problem is a viable solution since patents expire. In fact having all these frivolous patents in the public record prevents them from being filed in the future.

        Linus is merely saying that coders should code and legal matters should be handled seperately. Remember the statement was made in a kernel development thread not a political or legal forum. It only hurts software development efforts for coders to proactively go out and seek out stupid patents that might possibly cover what they are doing.

        Come on wasn't it Shakespeare who said "The first thing we do, let's kill all the lawyers" I think Linus was mostly just making his point when suggesting whacking stupid people.
  • If you are developing software, and are picking methods, many of which have *registered* patents, you are asking for trouble. The fact that you want to use them only makes the patents seem more useful. It is one thing to write software and find a ridiculous patent that broadly covers obvious things. It is quite another to want to use a novel, patented method and use it without licensing. If you do that you get what you ask for.

    -Sean
  • by Anonymous Coward on Friday August 23, 2002 @02:29PM (#4128264)
    As usual, the average IQ of a slashdot poster is 50 right after an article gets posted. I think the people at Slashdot who reward based on who posts first to an article are idiots who greatly lower the quality of discussions of postings here.

    Linus is saying that people should ignore patents, in the sense that people should come up with their own ideas independent of what other people may come up with at the same time. This way, if the patent goes to court, they can say "I invented the same thing with no knowledge of their patent"; obvious things can not hold up in court.

    As the recent BT case shows, the patent courts are more reasonable than the average Slashdot loonet thinks they are.

    I am not logging in; the Slashdot editors like bitchslapping people who don't hold their party line.
  • Though..

    If somebody sues you, you change the algorithm or you just hire a hit-man to whack the stupid git.


    There should be a better way in putting the thought across. Being someone who is listened to whenever he opens his mouth, there should have been better words to put his idea across. After all, isnt this the same attitude that got Open Source / Linux advocates isolated from the rest of the world ? Do we need to do this again ?

    Yes, Patents are stupid. Yes, the world deserves better. No, this was not his best words.

    I guess he was just pissed.
  • Each country has its own patents and patent laws. Do you sue Linus in the US or Finland? Do you sue Alan in England? The actual developer who wrote the code wherever they happen to be? Do you sue all the mirrors for contributing to the infringement?

    I love OSS :-)
  • by bigpat (158134)
    "The fact is, technical people are better off not looking at patents. If
    you don't know what they cover and where they are, you won't be knowingly
    infringing on them. If somebody sues you, you change the algorithm or you
    just hire a hit-man to whack the stupid git.
    "

    very subtle, Linus. I'm not sure what you are trying to say.

    Seriously though, this makes sense. People have a finite amount of time, why waste it figuring out what not to do. Sure it might cost you some time later, but probably not.

    It is a much better use of time to just do your best work and then if you happen to use an algorithm or something that you find out later is patented, then just figure out what makes sense to do then.

    And just because you might be using a patented algorithm doesn't mean that you have to stop or even that it will cost money and eventually the patent will expire.
    • by swm (171547)
      Another reason for technical people not to read patents is that courts in the United States have held that unless you are a patent attorney, you aren't competent to determine whether you are infringing a given patent.

      This makes reading patents a real lose-lose proposition:
      • if you think you infringe and you do infringe, then you knowlingly infringe
      • if you think you don't infringe and you do infringe, then you still knowlingly infringe, because you weren't competent to think that you didn't infringe

      Don't like it? Write your congressman.
  • As a matter of principle. First, many Linux developers are not from the US, and software patents don't apply there (in many places). Second, ignoring them on a high-profile and highly respected project as the Linux kernel is an excellent way to show lawmakers how damaging and morally wrong these patents are. It is much clearer than whining and avoiding them, which has already been proven to be ineffective.

    It would be great if, maybe in a year, with many businesses already depending on Linux (including many jobs), suddenly it turns out that Linux is heavily infringing on a number of software patents. What do you think would happen: would the US ban Linux from the US (it would remain legal in lots of other countries). That would really look good and be a huge catalyst for a public debate on this issue (it has failed to get the public's attention up to now).

    And no matter what they try, noone can stop the volunteer developers all over the world. Only US businesses would be hit.
  • why bother? (Score:2, Insightful)

    by Anonymous Coward
    Why bother developing a new VM when BSD already has a perfectly fine stable VM? Does the term Not Invented Here mean anything to these people? They're setting back the state of computing by 10 years!
  • Help me to understand this for a second...

    Let's say someone gets a patent on a method of doing something in an OS, for instance thread scheduling. I don't know anything about this "someone", their method of schedulting threads or their patent. They get a patent on say... any genetic algorithm for discovering optimal thread schedules.

    In the course of trying to make my OS better, I decide to rewrite my thread scheduling to get better performance. Let's pretend that I build a genetic tester to optimize my thread scheduling.

    Now I have, through the natural evolution of thought, come accross a logical proof: I can get the best scheduling algorithm from a genetic sequence. Would I be in violation of a patent just for building on my past expierences to formulate a solution to a problem? Can people patent logical conclusions?
  • .. the specific ones in question will probably have to replaced, or they are _knowingly_ infringing.

    Then they can take this stand:
    "We don't include code that infringes upon patents we know about, but we do not have time to check up on patents so obvious that we implemented it without knowing about the patent."
  • Linus is right (Score:5, Interesting)

    by russotto (537200) on Friday August 23, 2002 @02:39PM (#4128374) Journal
    The problem with software patents is that the more you look for, the more you will find; lots of basic techniques have been patented (often two or three times). If you look for and find these things, you either have to work around (very difficult or impossible in some cases), sue to invalidate the patent (expensive), or be subject to penalties for willful infringement. If you don't look, the patentholders have to slog through YOUR code looking for reasons to sue (and no willful infringement penalties). Why do their work for them?

    (OK, maybe Linus wasn't right about the hit man thing. A hit man might be cheaper than an IP lawyer, but murder really IS unethical, and besides, you'd have to wipe out the whole corporation, and that gets almost as expensive as a lawsuit. But I assume Linus was speaking tongue-in-cheek there)
  • by jchandra (15040) on Friday August 23, 2002 @02:41PM (#4128403) Homepage
    On Sun, 11 Aug 2002, Larry McVoy wrote:
    >
    > This issue is more complicated than you might think.

    No, it's not. You miss the point.

    > Big companies with
    > big pockets are very nervous about being too closely associated with
    > Linux because of this problem.

    The point being that that is _their_ problem, and at a level that has
    nothing to do with technology.

    I'm saying that technical people shouldn't care. I certainly don't. The
    people who _should_ care are patent attourneys etc, since they actually
    get paid for it, and can better judge the matter anyway.

    Everybody in the whole software industry knows that any non-trivial
    program (and probably most trivial programs too, for that matter) will
    infringe on _some_ patent. Ask anybody. It's apparently an accepted fact,
    or at least a saying that I've heard too many times.

    I just don't care. Clearly, if all significant programs infringe on
    something, the issue is no longer "do we infringe", but "is it an issue"?

    And that's _exactly_ why technical people shouldn't care. The "is it an
    issue" is not something a technical guy can answer, since the answer
    depends on totally non-technical things.

    Ask your legal counsel, and I strongly suspect that if he is any good, he
    will tell you the same thing. Namely that it's _his_ problem, and that
    your engineers should not waste their time trying to find existing
    patents.

    Linus

  • Actually, we can, and I will.

    I do not look up any patents on _principle_, because (a) it's a horrible
    waste of time and (b) I don't want to know.

    The fact is, technical people are better off not looking at patents. If
    you don't know what they cover and where they are, you won't be knowingly
    infringing on them. If somebody sues you, you change the algorithm or you
    just hire a hit-man to whack the stupid git.
    (emphasis mine)

    Quality choice of words; now not only are we evil copyright violaters, we're murderous villains as well.

    Although, I must admit, my already tremendous amount of respect for Linus just went up a notch. ;)
    • Although, I must admit, my already tremendous amount of respect for Linus just went up a notch. ;)

      Not to mention fear. I half-expect to wake up to find a severed header (horse.h?)in my bed.

  • I Have a question (Score:2, Interesting)

    by sinan (10073)
    Assume that you are an organization ( corporate or educational) that has the source code for Microsoft OSs under the shared source program. As you go thru it you find that they have violated patents/licenses. What are your obligations as to the reporting of this to legal authorities, and if you do , then are you protected under any whistle-blower acts, or are held criminally responsible under nda or shared source license. I am really curious about this.
  • Workarounds (Score:2, Interesting)

    by Groo Wanderer (180806)
    There is a simple solution to this, or maybe not so simple. When you submit anything to the kernel that might be patented/copyrighted/whatever, you must also submit a workaround, or a functional equvalent that is not copyrighted. It doesn't have to be very good, complete, or as fast, but it needs to work. That way, if a large corporate entity decides to sue, or get an injunction against you, there is a quick way out. Imagine if a fundamental part of the kernel needed to be removed in, oh, say, an hour. How pissed would you be if linux no longer worked, or could be downloaded for the 2 weeks it took for a team to valiantly push out a fix? I would be livid. Worse yet, if I was a CIO, I wouldn't touch linux with a 10 foot (~3.3m) pole ever again.

    If there was a nearly complete workaround that could be put into place quickly, then the 'we'll ignore it until we get a piece of paper with lots of lawyers names at the top' strategy might work. I could live with a 'patch this for a 25% speed reduction coupled with a 100% lawyer reduction a lot more than a 'stop it now' for a month, and then only a 5% speed reduction. The key is to keep things working while corrections are being made.

    For the trolls out there, I know you can keep using the binaries you allready have, and there will probably be MORE mirrors after a lawsuit, but I really want to keep things legal, as I am sure most readers here do. Corporations HAVE to. A good backup plan is worth more than a little grey area now and again.

    -Charlie
  • Isn't there a clause in patent law that allows for independent discovery? If one person, unrelated to any patent, recreates the patented item without any outside aid, shouldn't that be excused?
  • How about this:

    1. If the kernal maintainers think that a patent is not defensible (prior-art, obviousness, etc.) then they should go ahead and violate it.

    2. We use community peer pressure (no really) to force the commercial linux distributors to set up a linux patent infringement legal defense fund supported by a small fixed percentage of the purchase price of the distribution.

    3. And make it clear to all the tech companies that we'll spend every penny in the fund on lawyers to attempt to overturn any patents that they try to enforce against the kernel.
  • by mikeee (137160) on Friday August 23, 2002 @02:54PM (#4128516)
    The big hope here, clearly, is for Linux developers to go ahead and do the obvious, and if some poor fool tries to sue over his VM idea being used in Linux, then Tux's Uncle IBM will drop mention of the umpty-three bajillion silly IBM patents they're violating, and the whole thing will go away.

    Bonus question: if I attempt to enforce a patent used in GPLed code, what happens? Do I lose my rights to use/distribute that GPL code? Is the copyright and GPL on that code unenforcable?
  • In the long run the Linux Kernel, is probably Ok, much as the *BSD kernels are probably ok. While SGI might hold a patent, in general if one can prove that their implimentation was developed without knowledge of the or assitance from the patented stuff...its OK. Thats why we have the PC environement we have today. In general replicating function is OK, its the outright theft of code thats NOT ok. We have record in the LKML that the rmap stuff has been developed based on ideas in the *BSD kernels if I remeber correctly. I think that Puts the Linux Kernel in the clear.
  • by rsidd (6328) on Friday August 23, 2002 @02:58PM (#4128545)
    see here [velocet.net].
  • by mjh (57755) <mark.hornclan@com> on Friday August 23, 2002 @03:25PM (#4128812) Homepage Journal
    I recall that a (fairly) recent ruling [eff.org] w.r.t. the publishing of source code to implement strong encryption was deemed as speech. This was the case where a professor wanted to publish source code for encryption but was barred from doing so on the premise that doing so violated federal regulations regarding the export of a munition. The ruling determined that source code was speech and therefore was protected by the first admendment.

    If Linus (et al) are publishing source code, isn't this code protected by the first amendment no matter what patent law says? I mean, by sending out the source code, aren't they simply giving a description of *how* a patented thing works, not an implementation of that thing actually working? And since the patent requires that the patented thing be fully described, isn't source code simply a different way of saying something that is already public knowledge?

    Couldn't a developer who is being sued for patent infringement simply say, "I'm just exercising first amendments rights.. and besides I'm not saying anything more than you've already said in your patent filing. I'm just saying it in a different language than you."

    ?

  • by gonar (78767) <sparkaliciousNO@SPAMverizon.net> on Friday August 23, 2002 @03:27PM (#4128836) Homepage
    is one of the defining characteristics of a valid patent.

    if someone, or several someones, without knowledge of said patent, come up with the same solution to the same problem, then it clearly fails the non-obvious test, and as such is not a valid patent.

    seems like these patents would get thrown out on that basis.

  • The Obvious (Score:3, Insightful)

    by Arandir (19206) on Friday August 23, 2002 @04:01PM (#4129198) Homepage Journal
    What's the obvious thing to do here? Ignore the problem. I'm absolutely serious.

    Either you ignore the patents or you stop coding. There is no other solution. You can't be a patent lawyer and a coder at the same time. You don't have enough time to do both. And unless you're a patent lawyer, you will never reasonably know that you haven't infringed on something.

    I strongly suspect, to the point of certain belief, that 99% of the patents in question are bogus and that Linus and Co. would win a court case. But again, there's not enough time in the world to both go to court and to code. Of the remaining 1%, you don't know which ones they are. The only way to avoid them is to remove all suspect code. You can't simply recode it in another algorithm, because that other algorithm may be patented as well. So you remove the code and are left with nothing more than a README file.

    There are times when you must ignore the law of man and obey the law of God. And the law of God says that you only have 24 hours in a day. If you're going to be a coder, you have to ignore patents.
  • by ehiris (214677) on Friday August 23, 2002 @04:31PM (#4129481) Homepage
    You have to come to an agreement with the patent owner!

    If he doesn't want to come to an agreement, you post their contact info on Slashdot so they can be driven crazy by anti-patent nazis.
  • by alexburke (119254) <slashdotmail@@@alexburke...ca> on Friday August 23, 2002 @04:49PM (#4129635)
    If somebody sues you, you change the algorithm or you just hire a hit-man to whack the stupid git.

    You go, Linus! Teach 'em who's boss! Send Guido and Boris to have a discussion with the patent holder's kneecaps!
  • by RyanFenton (230700) on Friday August 23, 2002 @05:00PM (#4129739)

    "What kind of program would you like to write, little one?"

    "One that will help me with my homework."

    "That's a fine idea! Let's start now - get in the car!"

    "Huh? I thought we were going to use the compu-"

    "But we have to go to Mr. Lawyer's office. Mr. Lawyer can tell us if it's alright to make the program we want to make."

    ---Three Weeks Later---

    "Sorry, Billy. It looks like we can't make the program. 'Looks like someone else thought up the idea of a program to help with homework before you did."

    "I don't care about that anymore. Programming's boring, just waiting for lawyers to call you. I want to be a lawyer now! I want to tell people not to make programs!"

    "That's my boy! You tell 'em tiger!"

    Ryan Fenton
  • by Euphonious Coward (189818) on Friday August 23, 2002 @05:10PM (#4129833)
    It's not just a good idea for engineers to ignore patents. As I understand it, U.S. case law effectively forbids you from reading patents that affect your work.

    Here's how it works: if you read a patent and decide it doesn't apply, and then you get sued and lose, your liability automatically triples because you violated it flagrantly. If you didn't read it, the violation was incidental. Many big companies have policies forbidding their engineering staff from reading patents, for just that reason.

    (Those of you who notice a similarity with the Catholic notion of mortal and venal sins may feel smug.)

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