Patents and the Penguin 251
In an article entitled Patents and the Penguin, the non-partisan Alexis de Tocqueville Institute observes, "[i]t is not uncommon today for patent fights to erupt even between parties that have engaged in rigorous diligence. By contrast, open source developers and distributors do not engage in patent searches, thus, there is a real possibility we will see a major patent fight involving open source, sooner than later. The article also ominously warns: "IBM will be competing with large Linux-based developers and distributors themselves. As the deployment of Linux increases, it can be expected that IBM will be going head-to-head with its "friends" in the Linux community. It is unquestionable that the biggest irony of all will be when Big Blue resorts to using its war chest of patents against a "friend" in the Linux community." Even Homer Simpson can see this coming.
Seems less likely (Score:5, Insightful)
IBM (Score:5, Insightful)
What about "the rest of the world" (Score:4, Insightful)
The power of open source lies in the fact that no one outside of western nations could give a rat's ass over who has what patents. If the west isn't careful they're going to sue themeselves into second place in the world economy......
B. S. (Score:5, Insightful)
IBM will be going head to head with Linux why? IBM makes money consulting and selling hardware. They say, "We have this great mainframe for $200,000 that runs Linux. It's fast, scalable and dependable." That is of great value to them. OS2 was no cash cow. That's why they've moved in the direction they have. That's why they're spending so much money to help develop Linux - it is GOOD for them.
Open Patents (Score:4, Insightful)
Then, call them "Open patents." They are free for ANYBODY to use AS LONG AS they do not file any patent suits against open-source projects. This would create an interesting arms race. "We will use yours, but then you get to use ours. If you start a fight, we take our ball and go home." Of course, for this to work, there has to be a substantial body of open patents...
This assertion is pretty stupid because of the GPL (Score:5, Insightful)
IIRC this wonderful institute has written some very controversial studies and analysis for Microsoft and other proprietary interest before. They can hardly be called neutral or non-partisan.
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Andre
Re:Seems less likely (Score:5, Insightful)
Not to mention that if the patents cover anything they've distributed under the GPL then they're going to be in direct contridiction of:
7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
So the only GPL products they could use their patents against are those that don't incorporate any source code from IBM - and even then the person distributing them could just link them against something IBM distributed to them and be safe.
Last card in the deck (Score:5, Insightful)
On the flip side there are small companies making a name - but most grass roots efforts can defeat them.
IBM is no where near as close to closing its doors as Sun, so I don't know why everybody is worried about IBM.
Re:What about "the rest of the world" (Score:3, Insightful)
Re:FOSS == obvious to skilled practitioner (Score:3, Insightful)
Re:Open Patents (Score:3, Insightful)
IBM is in the hardware business (Score:4, Insightful)
Re:Open Patents (Score:4, Insightful)
Re:Open Source Apocalypse (Score:5, Insightful)
For example, until Theo pi##ed them off, the Air Force and Darpa were sending money to OpenBSD. Who's to say that they haven't since forked it to "DarpaBSD" and moved on?
The military does have programmers who know their stuff, and they can hire IBM as a contractor doing 'work for hire' that legally belongs to the U.S. Government, complete with NDAs & whiterooms.
They also have a secrecy == security mindset in many areas, so they may choose not to release their work. Even GPL software could dissapear into the system like this, since they would all be working under the umbrella of the U.S. Government and so therefore the work could be widely used in binary but never "distributed."
In that case, patent cases or other IP disputes would probably not be made public, as in order to make a case the military work would have to be published. And unless they publish their work (like SELinux), nobody else would really know enough about it to sue them. Given that Microsoft et.al. has already complained about the unfair competition provided by SELinux, I think publishing complete operating systems or adaptations of OSS operating systems would be rare.
Anyway - just a thought.
How does this junk make the front page? (Score:5, Insightful)
On the IBM point, IBM already has a giant patent portfolio. GIANT.
The difference with IBM is while they'll make money on their portfolio, they are not a dying company who'es only source of revenue are patents. They've played exceeding well with the linux world, have expressed their dislike of patents in the past, and distribute Linux so have agreed to the GPL.
Even Home Simpson could see this is a bunch of BS.
Re:FOSS == obvious to skilled practitioner (Score:4, Insightful)
No, it has nothing to do with obviousness: it's about novelty. Quite simply, if the (so called) patented invention is already disclosed to the public, then a patent cannot be obtained for it.
In other words, the mere fact of committing code to a CVS repository already discloses it and thus whether it is obvious or not (i.e. "inventive") is irrelevant: no one can now patent it.
There are further complexities once you did deeper, but that's the basic rule.
Re:Open Patents (Score:5, Insightful)
Re:Open Patents (Score:4, Insightful)
This would be sort of like the USA/USSR arms race. If you shoot me, I shoot back and we both die.
Could IBM possibly mandate a proprietary component (Score:2, Insightful)
Everyone is discounting IBM's ability to derail and/or subsume F/OSS by virtue of the GPL (that is, they won't be able to because the GPL requires that they provide the source for their contributions to the kernel). The problem I see with this is that they have the ability, due to their market presence, to incorporate a proprietary component into their distributions -- possibly protected by patents -- that is subsequently shoved down the throats of businesses they service.
In other words, they definitely have the potential/capability to "pull a Microsoft" and steer people in the direction of building their enterprises around a proprietary solution that sits on top of an open standard (in Microsoft's case, it was the open x86 ISA -- make no mistake that it's the *main* reason they succeeded against Apple and the Mac).
Imagine that IBM creates "Super-indispensable-wonder-widget-for-business" 1.0 and incorporates it into their distributions for the low, low price of $0.00 (think "Internet Explorer"). Meanwhile, they file a patent for said widget, ensuring that nobody, anywhere will be able to implement the same concept without getting sued. Businesses that are now reliant on the formerly free widget are now shocked to learn that buying the widget along with the support for their otherwise free distribution costs a staggering $gajillion.00.
Their position will be cemented, and there will be no recourse to an open-source alternative. Simply implementing the idea would require paying IBM a licensing fee.
Software patents are evil. Plain and simple.
C
Re:Seems less likely (Score:4, Insightful)
IBM distributes just about EVERY GPL Free Software application there is. They distribute full gnu/linux operating systems. That includes the kernel, the libraries, the applications etc. Most gnu/linux distros try to package every GPL software that's out there and IBM distributes more than one distro.
If IBM had any patents which could be applicable to ANY GPL software, that's now in the past.
Re:Open Source Apocalypse (Score:1, Insightful)
Re:Open Patents (Score:3, Insightful)
My conclusion therefore is that OSS developers should be applying for patents. These patents could be used in a defensive manner if challenged by a proprietary, closed source developer (company).
Start off by softening the defenses (Score:1, Insightful)
IBM is embracing linux, and their huge storehouse of patents make IBM a dangerous foe to oppose.
When Linux starts *really* eating Microsoft's lunch, the Great Software Patent War will begin.
Microsoft sees this in the future so it is funding reports that weaken the view of IBM's patents in the Linux community.
This is nothing but Microsoft trying to soften Linux's defenses, so to speak. Happy to say though... it just wont work.
And honestly, IBM's software patents will help Linux more than it will ever hurt it.
Re:A few questions.. (Score:2, Insightful)
the same way that the RIAA plans to sue people that have copies of albums that they didn't buy
Alexis de Tocqueville ... AGAIN (Score:5, Insightful)
The issue if patents and FLOSS software is real, and the way things are going these days, I think we're headed for some real problems in the not too distant future. However, I strongly suspect the problem is not going to come from IBM or other Open Source "friends". (They have no interest in "crushing" open source as a competitor.) It's going to come from either deep pockets like MS, with an ax to grind, or from more small-operators like SCO or other "Intellectual Property Houses", looking to cash in on the Wave.
Software patents are a real issue, but the problem is not isolated in any way to the FLOSS development model. Nor should it be a reason to shy away from using, or developing FLOSS software.
Re:Open Source Apocalypse (Score:4, Insightful)
That is what I fear. The current system rewards corporations for revealing patents after a technology has become pervasive. Who's to say Microsoft can't sit on some patents and then pull the rabbit out of the hat when they feel the time is right.
they can .. (Score:1, Insightful)
Re:Open Source Apocalypse (Score:5, Insightful)
They will try, they kinda suggested it also in memos that were leaked (?)
In the end.. IBM and Novell seem to have more to gain from a freely developed Linux then one that is bogged down my MS and their IP. I'm pretty sure that among them they have enough material to make MS think twice before actually trying it themselves (as opposed as through a proxy as they are doing right now)
Flawed article (Score:3, Insightful)
Typically you perform patent searches on stuff you intend to file and that is often after the R&D has been done. This is where due diligence kicks in to make sure you are claiming a novel invention.
I can't emphasize enough how utterly insane it would be to expect engineers to search for patent prior art before writing their own creative code. It's hard enough to do this w.r.t. a specific invention for exampel looking for prior art as it relates to LZW or the latest JPEG claims. However with the scope of things your average engineer touches to produce anything of reasonable complexity it would be impossible to perform a thorough search or even know all the areas you should be searching in.
Let's not let these ignorant fools dictate or change the expectation of what engineering is about and lets not allow them to redefine what due dilligence is.
Re:Seems Unlikely (Score:1, Insightful)
I've sat across the table from IBM patent licensing attorneys. They know the patents, they know the law, and they dictate the licensing terms. They don't make cowboy statements.
If you program for a living (Score:1, Insightful)
Alexis de Tocqueville Institute, as noted elsewhere in this thread, has a long history with Microsoft. Knowing this, it is easy to predict exactly what Microsoft, not IBM, is planning. And it isn't a coincidence that Microsoft has been filing for patents at the rate of 10 a day recently.
It looks as though Microsoft intends to make it impossible for anything without $billions to be able to write software unless it is proprietary. Think about it; unless the source code is a deep dark secret, Microsoft will be able to examine the code and find something, anything that will infringe on a patent they hold. As they have done in the past, they don't even have to have a case; $billions in their war chest is enough to guarantee that even a frivolous lawsuit will bankrupt any individual or company (hell, probably some countries) long before the case is decided.
And how do you protect against that? Why, only one way: no one sees the source! And, given the recent legislation that Microsoft recently bought, errr, lobbied tirelessly for, it will be illegal to reverse engineer the bianries to prove that a proprietary solution might infringe on a patent.
But Open Source? Why, the code is right there! And the merits of any case will have no bearing on whether an opponent will prevail. Just look at the farce SCO has been able to get away with over the last year.
Make no mistake; this is a calculated long-term strategy that Microsoft fully intends to put into practice. Right now they accuse IBM. But very soon we will see exactly these actions from Microsoft. They will bury not only Linux, but any Open Source software and any small startup with the audacity to share source code withoput $billions in the bank. Soon, the only way software will be developed is if it is done for a very large company, proprietary, and owned by the company, not by any individual. And programmers will do it at the rates they want, otherwise they will be sued out of existence for writing any code whatsoever!
Time to train for another career or accept and obey your new software overlords.