Tim Bray Finds An Affinity Between Patents And OSS 209
Manuzhai writes "Tim Bray, of XML co-invention fame, is writing about software patents and Open Source software today. While he deprecates the 'business-method' patents like one-click ordering, he thinks some (Open) source code could tell the truth about a patent application: 'In fact, in an ideal world, I'd rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one.'"
Re:Eliminates patent benefit. (Score:5, Informative)
Given that there is concrete evidence for what the patent is about (the source code), it becomes much harder for companies to claim that patents have been violated. It also becomes harder for patents to be put forward for such simple stuff as "one-click purchasing", patents would then have to be awarded on innovative algorithms.
Re:Novell (Score:2, Informative)
All I can remember them saying is that they will use their patents as a source of revenue (which can be construed as not going after open source projects per se as there is little money there)
Re:Eliminates patent benefit. (Score:3, Informative)
A patent was supposed to grant you a monopoly on your invention in return for describing said invention such that when the King decided your monopoly expires then other members of the kingdom could share the knowledge.
Thus when source code is the documentation one could argue that presenting such code is *already* a pre-requisite.
royalties as a percentage of sales price (Score:2, Informative)
Give no ground. Not an inch. (Score:5, Informative)
If you have a patent office staffed with geniuses, gifted with eidetic memories, even if every patent holder submits open-source code along with the patent, you will still have a body of hundreds of thousands or millions of patents, and hundreds or thousands more each day.
A software developer will have to read the entire patent database, and then stay current with all the new applications. Obviously this is physically impossible. The end result? Every piece of code is a ticking patent timebomb.
"Hello, sir. I see you are violating my patent on dereferencing pointers on Tuesdays. I assure you this was extremely innovative in 1992. My fee is $1,000 per asterisk, of I will see you in court. By the way, a little hint about court: it will scare off your customers, cost you millions in attorneys fees even if you win (and you might lose!), and take ten years. Your choice."
Software patents are purely an anticompetitive tool designed and maintained exclusively for a few large corporations who just happen to have created large, shockingly broad software patent portfolios. It allows them to sue any small competitor out of existence, and threaten even larger competitors. They have already been seriously destructive to our economy, and their effect on innovation, and eventually America's place in the global technology industry, is an ongoing catastrophe.
There is no possible compromise. The system is inherently, obviously broken - a ridiculous legal con game. Software patents must be repealed, or our technology industry will wither and die (and happily be replaced by Europe - or, if Europe isn't smart enough to steer clear of them, in Asia).
Re:Hum?! (Score:4, Informative)
Aside from the second 's' in "miss", yes.
Patents are supposed to give sufficient detail to allow someone "skilled in the art" to reproduce the invention. Almost all "software patents" miserably fail at this task.
Requiring that working source code be provided would avoid the current situation where patenters obtain legal patent protection while still retaining effective secrecy.
Re:Patents are big business for Big Business (Score:3, Informative)
Re:does source code actually violate a patent? (Score:1, Informative)
a: It might if it is eventually converted into a working product. From the Eolas v. MS case:
The intellectual property at issue in this case, namely the Windows source code, is contained on a computer disk, known as the "golden master." Microsoft
provides this disk to foreign Original Equipment Manufacturers ("OEMs") pursuant to intellectual property licensing agreements for their use in making and selling abroad computer products containing Windows. According to Microsoft, new units of Windows code are created abroad when the foreign OEMs, for each unit, replicate the Windows code in its manufacturing facility using the single "golden master" and installs these new units of replicated code on a computer useable medium, such as a computer disk or hard drive, which is supplied by the foreign OEM. Microsoft argues that this "golden master" is not a component of the foreign sales products within the meaning of Section 271(f).
The closest cases are W.R. Grace & Co-Conn v. Intercat, Inc., 60 F. Supp. 2d 316, 319-21 (D. Del. 1999) and Lubrizol Corp. v. Exxon Corp., 696 F. Supp. 302, 325 (N.D. Ohio 1988). In these cases the defendants sent chemical products
abroad that were combined as supplied with other compounds into compositions that would have infringed had the combination occurred here. Those judges found that there was liability under Section 271(f). Only one of these opinions offered a rationale but both relied on what they, and I, agree is the plain language of the statute.
Microsoft argues that the "golden master" is distinguishable from the chemical products in these cases. It asserts that the disk is analogous to the formula for those chemicals sent abroad, not the chemicals themselves and
therefore, the disk is not a component of the allegedly infringing product.
The "golden master" is like a chemical formula in that it is a series of directions (commands) written down so that it can be used again and again. If followed, the formula produces a result which is desired by its user or purchaser.
The "golden master" is unlike a chemical formula because its contents are an operating element of the process which produces the result which is desired by a user or purchaser (like Paranox 300 and Paranox 600 when added to other ingredients made a better oil additive in Lubrizol).
A chemical formula can be memorized (as many complex recipes are) and discarded. The source code has to be installed, never to be discarded.
A philosophical argument can be made that installation of the source code is akin to memorizing it. But I think the recipe memory, of which we speak (in ordinary language) is not what we mean when we speak of computer memory.
The machine does not 'remember'--it holds code and, unlike the human, that is all it does. The result desired by the user of the compound product of the programmable machine (a computer) and Windows code is made from code and
hardware together. That which invokes the operation to secure a result (i.e., my
finger pushing buttons) and the devices connected to the buttons are, in the important sense here, external to the basic product. So too are the devices which input data. That which displays the machine's output is external in this way. The devices which start the machine, input data, or display output are essential to the usefulness of the machine to users. Yet if the laptop on which I am writing this opinion had a power button stuck in the on position, a keyboard covered by a solid locked plate, and the screen was dead, but "my laptop" is still there. What is there is the internal hardware and the source code which operates, provides utilities, can browse and execute applications.
This analysis is not metaphysical. It is an analysis of language. It is appropriate because the goal is to find the meaning of ordinary language as it is used by lawyers and judges when deciding whether something is made and, if so,
where it is made. Where code is installed on a disk or a hard drive
Re:Hum?! (Score:3, Informative)
Re:Hum?! (Score:3, Informative)
Yes, but after the patent period expires, the source would be public domain. I.e. during the period of the patent use of the source is restricted (and would be even if the source was not in the patent). Afterwards, use of that source would be unrestricted.
Also, if you obtain a patent license, there is nothing keeping you from modifying the code during the patent period. It's not Free, but it is open. However, I think that Mr. Bray was using open source only to mean visible source, not modifiable source. One would not be able to use the code in F/OSS projects.
Re:No, it doesn't (Score:1, Informative)
As much as this might disappoint the Perl hackers, there isn't always one way to do it.
Perl's motto is "TMTOWTDI: There's More Than One Way To Do It". So how would this disappoint Perl enthusiasts?