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Patent Case With FOSS Implications

Posted by kdawson on Sun Oct 01, 2006 02:29 PM
from the another-inducement-for-offshoring dept.
Patents
ThousandStars writes, "SCOTUSBlog posted about the liklihood that the Supreme Court will review whether an organization can get around software patents by completing the work in other countries. This case has huge implications for OSS projects with coders in the U.S., as it may inhibit, among other things, the ability of American coders to contribute to projects that violate U.S. software patents." The Patently-O blog gives background on the case.
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[+] SFLC Argues On Same Side As Microsoft 59 comments
MCRocker writes in with news that, while a few weeks old, didn't get a lot of traction before the holidays. The Software Freedom Law Center is one of the staunchest defenders of FOSS out there. The SFLC is arguing on the same side as Microsoft in a patent case before the Supreme Court. The case, "Microsoft vs. AT&T," turns on whether U.S. patents should apply to software that is copied and distributed overseas. Groklaw has more nitty-gritty details. In the Linux-Watch article, the SFLC's legal director, Daniel Ravicher, is quoted: "I expect many people will be surprised that the Software Freedom Law Center has filed a brief with the Supreme Court in support of Microsoft. In this specific case, Microsoft and SFLC are both supporting the position that U.S. software patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents."
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  • From what's outlined on SCOTUSblog, it kind of sounds like they're concerned about software object code. I imagine there's no chance the court would decide that software patents are invalid, but maybe in the worst case it would still be possible for OSS programmers to work on patent-impacted projects by modifying/committing only non-impacted sections of the software and by avoiding any U.S.-hosted mirrors of projects or binaries?

    • I can understand that a law exists that prevents items that violate US patent law from being exported, but why does the US have such a law? All it does is harm US manufacturers. It only makes sense for patents to apply where the product is actually used.

      Assume a product is used in country A. There are no patents in country A that affect this device. The only patents on this device exist in the USA. Now, every country on the globe can build and ship this device to country A, EXCEPT the USA. How does this la
      • To encourage those countries to have patent laws of their own. Otherwise, I could get a glimpse of patented designs here in the states, take a flight to a country without patents, and make money on a patented idea. Then, countries without patent laws miss out because the companies that hold those patents don't want to risk giving the design to anyone not bound by it, and everyone else is not allowed to try.

        It's just another example of the problems with patents. If I tried to produce patented medicine h

      • Re:Step back...... (Score:4, Informative)

        by deblau (68023) <slashdot.25.flickboy@spamgourmet.com> on Sunday October 01 2006, @04:53PM (#16269331) Journal
        I can understand that a law exists that prevents items that violate US patent law from being exported
        That's not what's going on here. The definition of direct infringement is in 35 U.S.C. 271(a) [cornell.edu]:

        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.
        The law doesn't cover exports directly, but it does say you can't make a patented invention in the US (for export) unless you have authority. There is, however, a loophole in this definition: if you wanted to export a patented invention to sell it overseas (without permission), but you can't make it domestically because of 271(a), then you can make the parts in the US, ship the parts overseas, and have the invention assembled there. Congress didn't like that, so they enacted 271(f).

        271(f) comes in two flavors. 271(f)(1) basically says that you can't ship parts overseas for assembly if you couldn't legally assemble them in the US. 271(f)(2) basically says that you can't make in the US and ship overseas any items which have no use other than as part of a patented invention.

        The Supreme Court is trying to figure out two things: whether object code counts as a 'component part' that can be combined with other components overseas in violation of 271(f), and if so, whether copies made overseas of object code originating in the US count as 'made in the US' for the purposes of assembly overseas. The image [typepad.com] on the Patently-O blog shows what's going on.

      • Could someone with copyright/patent on a compiler claim that any object code it produces is a derivative work since it uses their proprietary assembly-generating algorithm?

        I think that's an interesting question that should be asked in court. I think it would make a mockery of software patents, which is a good thing. Neither alogrithms, business methods, nor software should be patented period!

        Falcon

        • I think that's an interesting question that should be asked in court.

          The Supreme Court will not rule on theoretical situations, only cases concerning events that actually occurred. There are a couple of reasons for this, a big one being that it is seen as a better use of time to focus on laws that are actually affecting citizens and society, than on a bunch of what-ifs. Another reason is that the court's view on how narrow or wide judgments should be has varied over time.

          Remember, the Supreme Court does not

  • It seems unintuitive that a US company can go around US laws knowing. Aren't there laws to prevent moving illegal acts offshore?

    • Re: (Score:2, Insightful)

      by Lockejaw (955650)
      There may be for some illegal acts, but it seems perfectly legal for companies to move "pay the workers less than $5 per hour" offshore.
    • Patent protection does not just govern the product development, but also the sale of offending products.

      The patent holders can block the sale of offending products in countries that respect the patents, just the same as if those products were locally made. However, it would get a bit more difficult for the courts to demand documentation from a different country.

    • Patent infringement is a tort, not a crime.
    • Yeah, it's called "laws in other countries". Newsflash: US not world police.

  • Software patents? (Score:4, Interesting)

    by bram (490) <bram-slashdot@grmbl . c om> on Sunday October 01 2006, @02:55PM (#16268285) Homepage Journal
    Does anyone living outside of the US actually care about US patents?

    Just a question.

    • Re:Software patents? (Score:5, Informative)

      by Scarblac (122480) <slashdot@gerlich.nl> on Sunday October 01 2006, @03:02PM (#16268353) Homepage

      Yes. The Doha round of WTO negotiations have collapsed, so every country is making bilateral agreements with every other country.

      And the US is trying to get their IP laws implemented everywhere else, along with mutual recognition of existing patents (that usually don't exist elsewhere yet, so whenever that happens, US companies have lots of patents while companies from the other side have none).

      And governments everywhere listen to the same big multinationals, who have US patent portfolios and want to grab the open space everywhere else. See Microsoft etc fighting for software patents in the EU, that sort of thing.

      So yes we care, because what happens in the US happens everywhere else, a bit later.

      • Sounds like the New American Century is smoothly sailing across the Atlantic. I, for one, welcome our New American Overlords. :D
    • I couldn't care less about US patents. I care if the OSS projects I use suddenly drop all US resident contributors.

      Would US coders need subversion on tor to do perfectly ethical things while the administration of their country use The Law to do perfectly unethical things?

      Shame on us all, we let a bunch of money hungry subhumans rule the world.

      I had put online some anti patent banners back in the time we were discussing it in EU, seems I must do it again, more people need to know.
        • > So stuff not patented in the US can be copied by everyone else, from a US perspective?

          Sure, because then it is "fair use", but if a foreigner tries the same, he is a "pirate". Double standards? You bet.

      • A large number of "US Patents" are actually from foreigners. You don't have to be an American citizen to get a "US Patent."

        Yes, but if you are an Australian organisation like CSIRO and invent and patent WiFi then groups in the USA contest it and say that groups owned by foreign governments have no right to take out US patents so WiFi should be in the public domain. At this point the patent is most likely worthless and it will take years to resolve depending on who decides to stop pouring money into the le

  • "This case has huge implications for OSS projects with coders in the U.S., as it may inhibit, among other things, the ability of American coders to contribute to projects that violate U.S. software patents."

    It seems like they're talking about closing a pretty major legal loophole here. Why shouldn't it be illegal for an American in America to violate American patent law? I mean, if you want to say that software patents should be illegal anyway, that's fine, but preserving a loophole in the law probably isn'
    • "Why shouldn't it be illegal for an American in America to violate American patent law? "

      Shouldn't it be illegal for an American to violate minimum wage laws in foreign countries while the U.S. citizen is working from an office in the U.S.? Shouldn't it be illegal for U.S. to advertise cigarettes in foreign countries? Or Worker safety rules? Or avoid income tax by moving money outside the U.S.?

      I'm not clear what you're saying... U.S. laws apply to U.S. citizens for things that occur in foreign countries?

      • Re: (Score:3, Informative)

        by Scarblac (122480)

        That's the thing with patents, it doesn't matter if it's a clean-room design. Even if it's your own idea and you had never heard of anybody else doing it, if it infringes on a patent, you owe royalties.

  • > This case has huge implications for OSS projects with coders in the U.S., as
    > it may inhibit, among other things, the ability of American coders to
    > contribute to projects that violate U.S. software patents."

    According to the article the case has to do specifically with object code.

  • The Dumbing-Down of America (Score:3, Insightful)

    by FFFish (7567) on Sunday October 01 2006, @03:11PM (#16268413) Homepage
    "...it may inhibit, among other things, the ability of American coders to contribute to projects..."

    Yup, indeed it will.

    And the USA will not be as competitive in the world of software development.

    Bullet, meet foot.

      • Re: (Score:3, Insightful)

        by fotbr (855184)
        MS now has a free version of visual studio 2005, so touting open source as the only cheap development environment is a load of horse-hockey. The previous "academic" versions that were priced at $199 (for visual studio 6.0 in 1998 and visual studio.net 2003 in 2003 -- I skipped the first vs.net) were not "extremely limited" -- they were the exact same thing as the "professional" package (one step down from their "enterprise" which didn't have many features a beginning programmer would use anyway) with a mu
  • And anyone claiming otherwise is in effect commiting fraud against others.

    http://threeseas.net/abstraction_physics.html [threeseas.net]

    But maybe what is needed is complete suppression of human thought in order for there to9 be a revolt and change towards the recognition of what software really is.

    • You seem to think "patentability" is a natural property of certain entities but not others. It is not. It is whatever the lawmakers and the society they represent says it is. This isn't math where one cannot dispute that 1 + 1 = 2. Arguing as if it were is simply a waste of time. Argue instead that software patents do not promote the progress of science and the useful arts, and argue that promotion of this progress, the only constitutionally given reason for patents, is in fact the only good reason for

      • There are some things universally accepted as not being patentable.

        Natural Law (laws of nature and physics), Physicaly Phenomenon, abstract ideas are the top or primary three. Mathmatical algorythims are also considered non-patentable but in essence such algorythims are in fact composed of the above.

        So yeah, software, from abstraction physics POV, is not patentable. As it is three for three (or four for four if including math) of those things universally considered not patentable.

        Abstraction physics is the
    • What if the patented aspects of the software can be implemented in hardware? Do you think the hardware should be patentable in that case?
    • And anyone claiming otherwise is in effect commiting fraud against others.

      It's not fraud to cite the controlling case on the issue that says software is patentable . See State Street Bank & Trust Co. v. Signature Financial Group [wikipedia.org]
      • The correct term for softare patents is "fraud"

        See my second response in this thread for clairification.
  • How would anyone outside the project know that someone from inside the USA commited changes to version control to a projected hosted outside the USA? Also, who do all these patent problems benifit anyway? And is the USA simply firewalling themselves away from the rest of the world a viable option? Seems like it would make some corps happy.
  • 'Software patents' are likely to turn 'programming' into a purely commercial endeavour.

    That's likely to make it hard to teach the next generation how to program computers; that will be 'education', and I will not be teaching anyone if there is any chance that someone will slap a patent law suit on me. (Nor will I be paying for a patent licence).

    And if the next generation don't know how, there will be no-one to fix the bugs after the current generation retires.

    And we'll lose it.

  • There's already a form of IP to protect both... it's called Copyright.
    • Oh yes, and that corporate logo is already protected by copyright law, let's throw out this completely redundant trademark law. The problem isn't really the "class of works", there's a lot of IMO patentable ideas that could be expressed as software code. The problem is that utterly trivial things can be patented. If Tim Berners-Lee had taken out a patent on "hyperlinking", we'd probably still be paying royalties today. The technical nature of computers seems to increase that tenfold, as everything which is

  • Whoa! (Score:3, Funny)

    by novus ordo (843883) on Sunday October 01 2006, @04:30PM (#16269139) Journal
    Respondent AT&T Corp. brought this patent infringement action against petitioner Microsoft Corp., alleging that computers loaded with petitioner's Windows® operating system infringe respondent's patent related to digitally recorded speech.
    "Dear aunt, let's set so double the killer delete select all"
  • Just open up some anoymous proxies, for American developers. Let quality speak for itself, should OSS become illegal due to patents, will that stop joe six pack for downloading the best new OS 4 years from now, especially when it's free? Enterprises will be screwed, but who cares about them? Not me, i'll continue to work on whatever platform I like.

    • Re: (Score:3, Insightful)

      by Lehk228 (705449)
      no need to be anonymous, with digital certificates the submitted patches could be verified to come from a single source, without identifying that source

    • Re: (Score:2, Interesting)

      by quiberon2 (986274)
      It's not entirely clear that major corporations would want to, or would be able to, halt development and distribution of OSS.

      Even Microsoft seem to be warming to the idea of running Linux virtual machines under Windows.

      And loads of major corporations use OSS in their internal business processes. Think of all those Linksys routers with their GPL microcode. Millions in use throughout the USA.

    • Re: (Score:3, Insightful)

      by jZnat (793348) *
      Microsoft is one of the companies that hates software patents and only seems to get them in case someone tries to sue them over patent infringement (defencive patents).

      • Microsoft is one of the companies that hates software patents and only seems to get them in case someone tries to sue them over patent infringement (defencive patents).

        Patents are not needed for a defensive purpose, if you want a defense against patent infringment all you have to do is to publish the "invention". Hell, Microsoft can publish their idea on MSDN, once so published it can be used as prior art against any claim by others as infringment. That's the whole idea behind patents, to have inventio

        • You're missing the point. Microsoft has software patents so when IBM says 'hey, you're infringing 200 of our patents' Microsoft can say 'well you're infringing 300 of ours, how about a cross-licensing deal where we get to use each others patents for free?' And then Microsoft are happy and have no lawsuits, and between them they raise the barrier to entry for small companies (either have a large patent chest or pay patent protection money to IBM, Microsoft, and everyone else for the patents you might be in

          • You're missing the point. Microsoft has software patents so when IBM says 'hey, you're infringing 200 of our patents' Microsoft can say 'well you're infringing 300 of ours, how about a cross-licensing deal where we get to use each others patents for free?'

            I didn't miss the point. You yourself are saying software patents are used as a bludgeon to allow cross patent licensing. If someone else doesn't have a patent or not one that another party wants to use then simply by using software that's patented, e

          • You're missing the point. Microsoft has software patents so when IBM says 'hey, you're infringing 200 of our patents' Microsoft can say 'well you're infringing 300 of ours, how about a cross-licensing deal where we get to use each others patents for free?

            That's not "defensive". In fact, what it really is is companies with large patent portfolios colluding on keeping new players out of the market.
      • It may slowly be dawning on Microsoft that software patents aren't always good for them, but in the past, Microsoft executives have stated quite clearly that they view software patents as a way of shutting down open source projects they don't like.

        Furthemore, there is no such thing as a "defensive patent"; if Microsoft wants to protect itself against someone else patenting their idea, all they need to do is publish the idea. The only reason to use a patent is if you're going to threaten to assert it in cou

    • Re:Microsoft is behind this! (Score:4, Insightful)

      by Kjella (173770) on Sunday October 01 2006, @04:26PM (#16269091) Homepage
      As much as slashdot is too focused on OSS, it's missing the bigger picture. In global corporations, most every piece of anything contains some component that is developed in the US. If that component "taints" the rest of the software so that all US patents apply, then there's countless billions to be had in patent licenses from all major coroporations. In practise it makes US patents valid world-wide, because it's impossible to have a european branch of the software, developed separately, which can implement the patented parts without creating US liability. The only viable option would be to not implement those features, hence a global monopoly to the patent holder.

    • Re:Microsoft is behind this! (Score:5, Informative)

      by ajakk (29927) on Sunday October 01 2006, @04:30PM (#16269121) Homepage
      Will someone please mod the parent down? Microsoft is filing a petition for cert. so that the Supreme Court can overturn the current interpretation of this law. Despite everyone's hatred for Microsoft, they are actually promoting the position that would be most beneficial for OSS. The U.S. government is also supporting this interpretation. From the article:
      The Government argues that the extraterritorial nature of U.S. patents should be narrowly construed and that if someone wants rights to stop foreign infringement, then they should get foreign patents.
      AT&T is the one trying to enforce their U.S. patents, not Microsoft.
      • I think Microsoft has been hit with a few big patent lawsuits that they're probably still feeling a little bitter about. They're going to do what makes business sense for them rather than take an ideological stance against software patents, though. Based on what you said, they might prefer that they didn't exist, but you can bet that they'll keep patenting and suing based on patents while they still do exist!

    • Re: (Score:3, Informative)

      by figleaf (672550)
      Did you even read the case details?

      One of the cases is about Microsoft' codecs. The source was created in the US, It was licensed by a foriegn company. The foriegn company used the code to sell a product abroad.

      This make it AT&T against FOSS.
      FOSS has a lot to lose if Microsoft loses.
      Good thing DOJ is supporting Microsoft.

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