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: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.
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
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:Keeping things equal (Score:5, Interesting)
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.
Re:Keeping things equal (Score:3, Interesting)
2) There has, as far as I am aware, been only one Thomas Edison. Perhaps there are reasons? You might consider them.
3) Patents are advantageous to those who hold them AFTER they hold them IF they have enough money to defend them. These conditions are not commonly met among inventors. Patents have been described as "a license to sue and be sued". This is nearly correct, but it ignores the effects of patent pools, which only serve to increase the degree of monopoly in an industry.
4) Were I to accept the limited degree of benefit that you ascribe to patents, I would still need to consider the costs that they impose. And these costs are formidable.
My general conclusions are that the US patent system is so broken that we would be better off without any at all. I also feel that a limited patent system might be desireable, in which patent pools should be explicitly prohibited and if a patent was ruled "silly", then the defense fees would need to be paid by the clerk that granted the patent. And that no penalties could be collected under a patent until a panel of experts in the field ruled that it was non-obvious. These experts to be selected by lot from a population that volunteered (for some minimal recompense) and declared at the time of volunteering what their field of expertise was. This is not sufficient to totally rule out silly patents being enforced, but is obviously better than the current system. Also, that this same panel could throw out any patent on the grounds that it was too broad. Not just decline to enforce some particular provision, throw out the entire thing.
But even with these limitations, I am dubious that a decent patent system could be constructed. The examiners are required to be specialists in too many disciplines, and this is clearly impossible.
Re:Keeping things equal (Score:3, Interesting)
Will all scientific information become a trade secret? Some yes and guess what there is plenty that is a trade secret anyways. Why? because even with patents once the cat is out of the bag it is out of the bag.
Patents could have protected a small inventor from true monopolizers, but in fact the small time inventor is hurt by patents today. These days to get a world wide patent costs several hundred thousand dollars. In the EU it costs about 30,000 Euros and in the US about 20,000 dollars. This is not money that a small inventor has. However, it is something large corps can afford. And then large corps use that money to fend off competitors. In other words a big corp can be inefficient.
Now I am going to throw you a concept. Imagine that there was no patent protection and there was rampant cloning or evolution? Could an industry survive? Absolutely... Examples include, books, music, sports, fashion, food (wine, beer, spirits), etc.
All of these industries are based on selling a product to make it interesting for the client. For example how many receipes are there for mashed potatoes? But yet people buy receipe books in droves. Or what about jeans? Remember when jeans were are all the rage in the eighties and jeans were cloned rampantly? Or how about sports? First people started with simple surfing, then skate boards then roller blades, etc. THAT is true innovation not hampered by patents!
About IP theft, and wanting to eat? Gee whiz, but I think the engineers still eat in those industries. The difference is that the engineers have to actually be part of a business. A monopoly grants the inventor a license of bad business and money gouging.
Patents certainly did not help the Wright Brothers (Score:3, Informative)
-Hope
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?
Patents were not restricted to machines! (Score:5, Informative)
Funny, the Constitution [archives.gov] says (Art. I, Sect. 8)
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
is entitled to a patent. Note that "arts," not just machines, are entitled to patents. The 1952 Patent Act revised this to read,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.
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:3, Insightful)
Re:Keeping things equal (Score:2)
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...
Re:Keeping things equal (Score:2)
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.
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?
Re:Keeping things equal (Score:2)
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.
Re:Keeping things equal (Score:2)
Also see the last quote on this page [berkeley.edu].
Patents cover ideas, whereas copyright covers (written) "works".
-Peter
Re:Keeping things equal (Score:2)
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.
Re:Keeping things equal (Score:3, Funny)
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.
Well, I'm sure no one will notice.. (Score:2)
It's posted on Slashdot.
Lot's of people read Slashdot including lots of scummy people...
Um.... Now?
Ridiculous (Score:2, Interesting)
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.
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:Ridiculous (Score:2)
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.
Not too long... (Score:2)
Re:Not too long... (Score:2)
Re:Not too long... (Score:2)
I'm sure that'll look real good. (Score:2, Flamebait)
Comment removed (Score:3, Insightful)
Re:Linus... (Score:2)
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.
Re: (Score:2)
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.
Re:Linus... (Score:2)
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)
Re:Linus... (Score:3, Funny)
Developer: (click-click), "#!/usr/bin/python"
Paper Clip: "Hi! It appears as if you are violating a patent! Would you like to:
Of course that would be violating a patent too
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.
Kernel developers don't have to worry (Score:3, Informative)
Developers are not off the hook (Score:4, Interesting)
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.
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:Kernel developers don't have to worry (Score:5, Informative)
Obvious Strategy (Score:4, Funny)
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
Re:Obvious Strategy (Score:2)
Re:Obvious Strategy (Score:2)
If you mean that someone (Linus?) can't be sued I am skeptical.
If you mean that a portion of the Linux kernel can't be replaced with non-infringing code you are clearly wrong. The case in point here is the Linux VM, which has been replaced en masse several times in recent memory. In fact, earlier this year the -ac kernels had a whole different VM than the "official" kernel.
If you mean something else I'm at a loss.
-Peter
Not a big deal. Don't worry. (Score:4, Interesting)
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.
What a load of crap. (Score:2)
Re:Not a big deal. Don't worry. (Score:2)
It seems that the EPO council has got a member from Malta...
Re:Not a big deal. Don't worry. (Score:3, Interesting)
C//
Re:Not a big deal. Don't worry. (Score:3, Interesting)
"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.
why (Score:2)
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)
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)
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).
Oh, this is good press.... (Score:2)
Is it just me, or is this very immature speach? It certainly doesn't do anything to make me respect Linus.
Re:Oh, this is good press.... (Score:2)
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.
Re:Oh, this is good press.... (Score:2)
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:Oh, this is good press.... (Score:5, Insightful)
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.
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.
Whoa, hold on. (Score:2)
-Sean
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.
I agree with Linus in principle (Score:2)
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.
Re:I agree with Linus in principle (Score:3, Funny)
Either that, or he's been playing Grand Theft Auto 3 recently.
Sue where? (Score:2)
I love OSS
You sue the deep pockets (Score:2)
Anyone with assets in the US who distributes Linux.
subtle (Score:2)
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.
Re:subtle (Score:2)
This makes reading patents a real lose-lose proposition:
Don't like it? Write your congressman.
Absolutely right to ignore them (Score:2)
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)
Thought patents... (Score:2)
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?
Well, they cannot ignore patents discovered (Score:2)
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)
(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)
Linus gives better explanation in a follow up. (Score:5, Interesting)
>
> 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
Quoting Linus (Score:2)
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.
Re:Quoting Linus (Score:2, Funny)
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)
Workarounds (Score:2, Interesting)
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
Independent discovery? (Score:2)
Linux Patent Infringement Legal Defense Fund (Score:2)
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.
patents and Mutual Assured Destruction (Score:3, Interesting)
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?
Clean Room (Score:2)
Re:Clean Room (Score:3, Informative)
For Jordan Hubbard's take on patents and FreeBSD.. (Score:5, Interesting)
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."
?
"non-obvious to a skilled practitioner" (Score:3, Interesting)
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)
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.
Don't ignore the patent owners! (Score:3, Funny)
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.
Much too funny (Score:3, Funny)
You go, Linus! Teach 'em who's boss! Send Guido and Boris to have a discussion with the patent holder's kneecaps!
"Daddy, I want to write a program!" (Score:5, Funny)
"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
Not Just a Good Idea, but the Law (Score:4, Informative)
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.)
Re:SGI (Score:2, 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.
Not time to condemn yet (Score:5, Interesting)
Re:Not time to condemn yet (Score:5, Interesting)
The method they patented, if you removed reference to memory, would also cover:
1) Forward and Backward pointing link list
2) Node Balancing in B-Trees
And that is just the tip of iceburg.
It is time to remove US Patent Office from the software business, they have proven over and over they inability to allow only real inventions in software development. Else the other chose could be is require the Patent Office and its examiers to pay ALL cost and triple damages when they fail to do their jobs.
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?
Yes, Ignore them (Score:3, Funny)
"If somebody sues you, you change the algorithm or you just hire a hit-man to whack the stupid git."
I guess hit men are cheaper than IP lawyers?
Re:Yes, Ignore them (Score:3, Funny)
Not nessisarily...just less evil.
Re:Patents... (Score:2)
You mean, like RedHat?
Re:Patents... (Score:2)
No the damages can also be the reduced market price.
Lets say you sold viagra for $0.02/pill, this would make the market think it is only worth 2 cents. Whoever owns viagra would then have to sell it for pennies a pill, not dollars, they are now making many dollars per pill less because you decreased the perceived value of their product.
You lowered the value of their asset, you owe them for damages. The money they won't make for you.
That being said, it would be hard to argue that the improved VM code of linux lowered the selling price or sold volume of Irix.
It has harmed SGI (Score:2)
That being said, it would be hard to argue that the improved VM code of linux lowered the selling price or sold volume of Irix.
By improving the quality of Linux's VM, it created less of an incentive for commercial renderhouses to use IRIX, and consequently SGI's hardware. Why buy an expensive SGI box when you can put together a cheap little Linux renderfarm on commodity hardware? For example, see this [slashdot.org].
Depending on how important the patented bits of code are (and from the looks of it, they're quite important), I'd say that on the surface SGI could make quite a case that the infringement of its patents has had an appreciable affect on its bottom line.