The Linux Kernel and Software Patents 629
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?"
Keeping things equal (Score:2, Insightful)
Re:SGI (Score:2, Insightful)
Re:Keeping things equal (Score:4, Insightful)
"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.
Comment removed (Score:3, Insightful)
Re:Keeping things equal (Score:3, Insightful)
Re:SGI (Score:2, Insightful)
How is that good? It's the world we live in. If SGI hadn't patented the technology, someone else would have, and they would have extorted SGI for millions. It's defensive patenting. You patent everything no matter how obvious for fear that lawyers will fail to see its obviousness.
In summary: SGI didn't do shit. Lay off.
Re:Ridiculous (Score:2, Insightful)
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.
What Linus is saying (Score:3, Insightful)
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.
Re:SGI (Score:1, Insightful)
Re:Keeping things equal (Score:5, Insightful)
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?
oh your so silly US (Score:2, Insightful)
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
why bother? (Score:2, Insightful)
Re:Ridiculous (Score:5, Insightful)
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.
Re:Keeping things equal (Score:5, Insightful)
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.
Re:Oh, this is good press.... (Score:5, Insightful)
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
Re:Linus... (Score:5, Insightful)
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)
Follow the money (Score:1, Insightful)
That said, anyone who makes money off of Linux (Lindows resellers, Red Hat, etc.) might find a patent infringement lawsuit on their doorsteps. One very interesting patent case that is still in progress is the Lemelson "machine vision" patent action against anyone who uses bar code scanning (i.e. your local supermarket). What's interesting about the Lemelson case is that the Lemelson Foundation sues companies that USE or SELL barcode scanners, not those that MAKE barcode scanners. The common opinion on this strategy is that they avoid the manufacturers because (1) manufacturers can afford GOOD lawyers, whereas the little guys prefer to roll over, and (2) Lemelson WANTS the manufacturing of scanners to continue, because everyone who buys a scanner is a new victim for a patent infringement action.
By the way, Lemelson patents are also an excellent example of the "submarine" strategy. Lemelson filed a very general "machine vision" patent back in 1956, but it wasn't issued then; he proceeded to "update" its claims and clauses for thirty years as the technology progressed, before finally receiving a patent with a 1956 invention priority date that was tailor-made to match the technology of the day. Boom! Everyone's an infringer!
Info on Lemelson patents [lemelsonpatents.com]
Good article on the "submarine" patent fiasco [machinevisiononline.org]
Re:Linus... (Score:4, Insightful)
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.
Re:Oh, this is good press.... (Score:5, Insightful)
Re:Keeping things equal (Score:3, Insightful)
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?
Source code is speech (Score:5, Insightful)
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."
?
Re:Keeping things equal (Score:5, Insightful)
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.
Re:Linus... (Score:4, Insightful)
By not knowing whether any given algorithm or method has been patented (and chances are most any real project has some 'infringing' methods) you not only protect yourself against accusations of willful violations, and against negligence for failing to find *all* violations, but you also weaken the patent itself, since by *policy* you didn't refer to the original claim and thus definitely came up with your solution by yourself.
Don't go easy on the Patent Office (Score:5, Insightful)
Patents on hyperlinks? Patents the parent poster mentioned? Patents on chat bots. Come on -- all it would take is one guy with a BS in comp. sci. and 5 minutes with Google to evaluate any of those.
This is the government we're talking about here. If any 24 year old comp. sci. major can figure that out, shouldn't we expect the same of a government body which regulates patents that result in high dollar lawsuits?
Re:Oh, this is good press.... (Score:3, Insightful)
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.
The Obvious (Score:3, Insightful)
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.
Re:Not time to condemn yet (Score:2, Insightful)
You are correct ; Except. . . (Score:4, Insightful)
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.
Re:Who is sued? (Score:5, Insightful)
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).
Re:Oh, this is good press.... (Score:3, Insightful)
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.
Re:Linus gives better explanation in a follow up. (Score:2, Insightful)
Linus' point reminds me of stories of the Eastern Bloc during the Cold War. Whenever it was possible, the dissidents would not recognize their authorities that governed their lives, and since authorities are only authorities when you grant them authority, eventually they had no authority. I believe it was Vaclav Havel who wrote that manifesto, and I'd link to it if I could. We work and ignore the patents, the public sees the innovation resultant, the patent-holders begin trying to chill that innovation with suits, the public feels that chill and reacts against it, and the authority residing in the patent is lessened.
Ignoring patents lessens their power. It isn't just because lawyers understand patents and geeks don't.
Re:Keeping things equal (Score:2, Insightful)
Without the patent system, all scientific information becomes trade secret, locked in a vault like the recipe for Kentucky Fried Chicken, never to be seen.
Patents create temporary monopoly in order to foster creativity. First one there gets rich. First one to invent something that fils the same role better because he saw the design mistakes by reading the original patent gets rich. And so on.
Somehow, much of the software community (the amateurs; there, I've said it) have not adopted that ethic. And the result is that perfectly wonderful inventions are now micro-cent value units in the giant software packages sold by the true monopolists.
1. Patents protect you from monoplizers with the resources to encompass everything they see and who act to control markets.
2. More careful patenting of software would slow vertical enhancement but improve innovation laterally.
3. Engineers need to eat, and "free technology" means shortcutting the value created in the economy by innovation and patent.
Monopoly bad. Capitalism good. Intellectual property theft bad. Innovation good. Secrets bad. Patents all good.
Got it?
--Blair
Re:Keeping things equal (Score:2, Insightful)
I'd say that a programmer's primary job is software development, not algorithm design. Some people can write really good algorithms, but can not assemble an application. Some people aren't great at inventing new sorting methods or queue theories, but they can write code that is easy to debug, fix and maintain. That's what programming is about: developing a cost-effective solution in a limited time, while keeping future maintenance costs down. Algorithm design is Computer Science, and is not practiced by 99% of programmers.
Protecting the obvious (Score:3, Insightful)
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.
Re:Keeping things equal (Score:2, Insightful)
Bottom line, industries with high costs of R&D compared to production require patent protection to exist.