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IBM's Supreme Court Brief Says That Patents Drive Free Software 284

Posted by timothy
from the corellation-is-not-causation dept.
H4x0r Jim Duggan writes "For the Supreme Court's upcoming review of the Bilski decision, IBM has submitted an amicus brief claiming that software patents 'fueled the explosive growth of open source software development' (!) (p38 of linked PDF). EndSoftwarePatents, for its own amicus brief, is looking for help building a list of free software harmed by software patents, and a list of companies that distribute free software and are taxed by patent royalties."
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IBM's Supreme Court Brief Says That Patents Drive Free Software

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  • Easy enough (Score:3, Funny)

    by T Murphy (1054674) on Thursday September 03, 2009 @12:37PM (#29301071) Journal
    Spore, Crysis and Bioshock are all free, but got all kinds of bad press because some illegitimately-sold non-free copies included patented DRM software. If this DRM had nothing to do with these games I'd bet they would be a lot more popular.
  • by bitemykarma (1515895) on Thursday September 03, 2009 @12:38PM (#29301087)

    software patents 'fueled the explosive growth of open source software development

    I guess we know which side IBM is on. Too bad.

    • by Verdatum (1257828)
      Big Blue has been a profit driven beast for over 50 years. They used to scold employees for not using garters to hold up their socks. I can't imagine any universe where IBM was on any other side.
    • by sconeu (64226) on Thursday September 03, 2009 @12:45PM (#29301199) Homepage Journal

      IBM is on IBM's side.

    • by HanzoSpam (713251)

      Anyone that hasn't figured out that IBM is just plain evil by this time probably never will. This is not a company you want to turn your back on.

      • by noundi (1044080)

        Anyone that hasn't figured out that IBM is just plain evil by this time probably never will. This is not a company you want to turn your back on.

        Would you stop fucking using the word "evil" already? There's nothing of substance in such claims. No corporation is "evil", and "evil" is just a matter of what side you're on. What IBM just did is called trolling, and there is nothing "evil" about maximizing profit. There is no corporation on earth which wouldn't do the same thing, given the opportunity and given that it would actually be considered as truth, hence generate revenue. Also never turn your back on any corporation, no matter how many patents t

        • Re: (Score:3, Insightful)

          by Anonymous Coward

          Would you stop fucking using the word "evil" already? There's nothing of substance in such claims. No corporation is "evil", and "evil" is just a matter of what side you're on.

          So what, then, would you call an entity that is in general designed to remove wealth from as many hands as possible and put it into as few hands as possible? Consider that the most effective corporation would limit the redistribution of wealth on both sides by having as low as possible costs (e.g. labour) and beneficiaries (e.g. owners, shareholders).

          And yes - it is a matter of what side you're on. Taking a binary view, if you sit on the side that believes that wealth should be increasingly concentrated the

          • by omnix (124024) on Thursday September 03, 2009 @02:47PM (#29302815) Journal

            So what, then, would you call an entity that is in general designed to remove wealth from as many hands as possible and put it into as few hands as possible?

            The correct term is corporatism or fascism, which seems to be the direction of the Republican party. This is the fundamental argument against unregulated capitalism which has become prevalent in the US over the past 100 years.

            Not that I believe the Democrats are any better, since they ultimately are a corporatist organization as well. The Dems just lack the organization...

          • Re: (Score:3, Insightful)

            by Garridan (597129)

            So what, then, would you call an entity that is in general designed to remove wealth from as many hands as possible and put it into as few hands as possible?

            I dunno, maybe "open for business?" Those that are designed to remove wealth from as few hands as possible and put it into as many hands as possible usually don't make it very far.

            How do you expect a company to work? People open a business for 2 reasons: (a) because they want to do something they enjoy, and (b) they want to make money. Type (a) generally stays pretty small and they quietly succeed or fail and nobody cares. Type (b) gets large, accumulates lots of customers, and pulls in a lot of profit

        • I think most ethicists, behavioral psychologists and anthropologists would agree that evil means antisocial behavior.

          Profit maximization at the expense of international civil rights and freedoms can easily be identified as evil.

          Just for contrast, I don't anybody can honestly call the FSF or the EFF evil regardless of their position. Loonies? Innocent losers without a grasp of reality? I'm sure their enemies have many ways to rationalize it, but evil, nah. Corporations know evil intimately.

        • by mwvdlee (775178)

          Satan is a pretty nice guy if you happen to be a demon. For anybody else though, satan is evil.
          And by similar reasoning, so is IBM.

        • by jedidiah (1196) on Thursday September 03, 2009 @04:18PM (#29304057) Homepage

          > and there is nothing "evil" about maximizing profit.

          This sort of nonsense is EXACTLY why the modern corporation is evil.

          We have this culture of robber baron hero worship where corporations
          are expected to "screw everyone else" for the short term benefit of
          stockholders.

          Corporations are already problematic enough. They are mobs of people
          with all moral awareness and accountability removed. Short of something
          in the corporate charter, any corporation will be as evil as it can get
          away with in this climate because that is how rewards and punishments are
          structured.

          Some corporations just have a more enlightened view of self-interest.

    • by Absolut187 (816431) on Thursday September 03, 2009 @01:57PM (#29302057) Homepage

      The new director of the USPTO was the former top IP lawyer at IBM.

      http://en.wikipedia.org/wiki/David_Kappos [wikipedia.org]

      Just sayin.

  • So, is IBM still a "friend of Open Source" today - a sentiment that was very much popular on /. in the wake of SCO lawsuit? Or not anymore?

    • by Jawn98685 (687784)

      So, is IBM still a "friend of Open Source" today - a sentiment that was very much popular on /. in the wake of SCO lawsuit? Or not anymore?

      Depends. How is IBM's relationship with Microsoft this week? Enemy of my enemy, and all that.

    • by mwvdlee (775178)

      "friend of Open Source"

      I'd rather use the term "parasite of Open Source"; they take what makes them profit and give back in return only what makes them more profit. As a bonus, they will destroy whatever makes them even more profit, even if it means destroying it's host. Sounds like a parasite to me.

  • by presidenteloco (659168) on Thursday September 03, 2009 @12:40PM (#29301111)

    The following phrases are among the few common uses of the word "patent"
    as an adjective:

    "That is patent nonsense."

    "That is a patent lie."

    • "This is patent leather."
      "These are patent shoes."
      "This is a polyester leisure suit."

      "This is a disco where I score patent chicks."

  • WTF IBM (Score:5, Interesting)

    by Microlith (54737) on Thursday September 03, 2009 @12:41PM (#29301121)

    Good to see that IBM has no clue what they're talking about. Patents most certainly have not fueled the explosive growth of open source software, the open nature of the licenses and community have. But go ahead and misrepresent the open source community IBM, for your own sake.

    Patents sit as an ever present threat that threatens to push development outside of software patent permitting countries, and makes software that is known to violate them into seriously gray territory. I also don't see how a patent, something with the sole purpose of denying use of the described mechanism to others, could possibly aid open source.

    • IBM has a lot to gain from making the claim- that doesn't mean that they're stupid so much as acting in their own interests. They have roughly 10,000 patents in their nuclear arsenal to defend after all.

    • Re:WTF IBM (Score:5, Insightful)

      by Sloppy (14984) on Thursday September 03, 2009 @01:10PM (#29301497) Homepage Journal

      Patents most certainly have not fueled the explosive growth of open source software

      Would libpng have been written, if not for the LZW patent? How about all of xiph's codecs? We wouldn't have Vorbis if it weren't for the MP3 patents.

      All that's really left to debate is whether this project, that project, etc all add up to something that counts as "explosive growth." And at that point, it's just not an interesting question.

      Saying patents fuel software development (both free and proprietary, since both types are actually harmed by patents) may be a distortion, because it (misleadingly) implies that the patents help the overall situation, but on its face, the statement is literally true. Patents force people to work around patents. It's economically inefficient (just as hurricanes fuel the construction industry) and therefore probably not desirable, but it really does happen.

      • Re:WTF IBM (Score:5, Insightful)

        by Microlith (54737) on Thursday September 03, 2009 @01:19PM (#29301583)

        There could be aspects of the Vorbis codec that are patented, but no one knows as no one (for good reason) is looking. VP3 was written well before it became Theora, and unfortunately is in the bad position of being inefficient.

        But let's consider what we don't have because of patents? How about wavelet compression, and the adoption of JPEG2000? Completely ground to a halt as one company holds a slew of patents over it.

        Yes, patents force people to work around them. They're stuck reinventing the wheel, poorly, and remain at risk of patent suits. The problem with software patents is they're either so stupidly simple that everyone runs over them (and strive to remain ignorant of having done so, to lessen any possible damages) or are so vague that they cover huge swaths, denying entire fields and crippling compatibility.

      • Re:WTF IBM (Score:5, Interesting)

        by camperdave (969942) on Thursday September 03, 2009 @01:23PM (#29301627) Journal
        Patents force people to work around patents.

        So a patent produces explosive growth in open source by encouraging the development of alternatives to what the patent covers? Nice. I think I'll use that line as a sig.
        • by drinkypoo (153816)

          Well, your current sig has some of the same spirit... necessity is the mother!

        • by Ant P. (974313)

          Free Software interprets patents as damage and routes around it.

        • Re:explosive (Score:3, Interesting)

          by TaoPhoenix (980487)

          More like the anger from patents fuels the manufacture and use of explosives.

          Re: poster above you, I REALLY have to get around to my logical fallacy studies project, because this is another one.
          Call it 25 technologies produced in anger working around patents, vs 2500 technologies if there was no patent in the way. I don't know the name for that one yet.

          Patents are like Go stones. It only takes about 5 brilliantly spaced items to sink 360 squares of attempted growth.

      • by flibuste (523578)
        Thanks for understanding the FA. Apparently many people here only read the misleading title...But I am not surprise.
        • Thanks for understanding the FA. Apparently many people here only read the misleading title...But I am not surprise.

          What other point do you think IBM has, except to mislead, by making that claim? This isn't a case of people not understanding the FA, its a case of them reacting to deliberately misleading wording that the FA is reporting on.

      • Re:WTF IBM (Score:5, Interesting)

        by SanityInAnarchy (655584) <ninja@slaphack.com> on Thursday September 03, 2009 @01:34PM (#29301749) Journal

        We wouldn't have Vorbis if it weren't for the MP3 patents.

        No, but we'd have AAC, which is arguably just as good, maybe even better.

        And from what everyone is saying, Theora is far inferior to h.264. If patents weren't an issue, we'd all just declare mp4/m4v with h.264 and AAC as the new standard for the video tag, and there'd actually be cross-browser support.

        At the moment, because of real patents, Opera and Firefox won't support h.264 (and thus, youtube.com/html5), and because of imagined patents, Safari won't support vorbis. Thus, it's not just open source projects, but open standards, which are neutered by software patents.

        You may have a point with libpng, but then again, gif wasn't that bad. Indeed, gif supports things png doesn't -- animations, for one (there are two competing implementations, one of which has growing browser support (but nowhere near png), and one of which has practically no browser support.) I do prefer png, even with the gif patent expired, but at the end of the day, how big of an improvement was it?

        Patents force people to work around patents. It's economically inefficient (just as hurricanes fuel the construction industry) and therefore probably not desirable, but it really does happen.

        In other words, it's a broken window model.

      • Patents force people to work around patents. It's economically inefficient (just as hurricanes fuel the construction industry) and therefore probably not desirable, but it really does happen.

        While I agree with your post, a patent is certainly *not* like a hurricane.
        Hurricanes destroy value. Patents reallocate value to the inventor.

        Thus, hurricanes have negative value. Patents - in the grand scheme - are at worst neutral, or even positive if you believe that they incentivize innovation which leads to highe

        • Re:WTF IBM (Score:4, Informative)

          by Chris Mattern (191822) on Thursday September 03, 2009 @01:54PM (#29302035)

          While I agree with your post, a patent is certainly *not* like a hurricane.
          Hurricanes destroy value. Patents reallocate value to the inventor.

          Patents destroy value because the tarriff exacted by the inventor makes uneconomic uses that would otherwise be practical. Part of the value that is not destroyed is then reallocated to the inventor.

          If the value created by encouraging the inventor to make the invention in the first place outweighs the destroyed value, then the patent is still a good thing. But once the invention is in existence, patents unquestionable destroy value.

      • Re: (Score:3, Insightful)

        by T.E.D. (34228)
        They wouldn't need to be written if not for those software patents. Instead, those developers would have spent their time writing something new. Very good example of how patents have retarded growth.
      • Re:WTF IBM (Score:5, Insightful)

        by Abreu (173023) on Thursday September 03, 2009 @01:51PM (#29302001)

        Isn't this reasoning similar to the Broken Window Fallacy?

        If MP3 didn't have patents, we wouldn't have ogg, true. Which means the talent used to REINVENT THE WHEEL in the ogg codecs would have instead been used to improve the patent-free MP3 instead (or to work on other projects).

      • by MrMr (219533)
        I love your reasoning. Let's also blame all crimes on the police while we're at it.
        After all, if there was no law enforcement there would be no point in having laws, so no way to commit a crime.
        Right?
      • That's so true, gotta steal it :) Hope you give me license to use this IP.

      • Re: (Score:2, Interesting)

        by TheOnyxRocket (921830)

        Saying patents fuel software development (both free and proprietary, since both types are actually harmed by patents) may be a distortion, because it (misleadingly) implies that the patents help the overall situation, but on its face, the statement is literally true. Patents force people to work around patents. It's economically inefficient (just as hurricanes fuel the construction industry) and therefore probably not desirable, but it really does happen.

        I regularly go to meetings where management asks the engineers for ideas to get around some competitor's patent. The company would just copy the competing product if possible, but the legal suits say it's too risky. The engineers absolutely love these meetings. Half the time, we come out with some fresh idea on how to make it better or cheaper. The next question the boss asks the suits is whether WE can get a patent. You can't convince me that management would ever have taken the risk to improve the pr

      • by macraig (621737) <mark DOT a DOT craig AT gmail DOT com> on Thursday September 03, 2009 @03:20PM (#29303363)

        "Would libpng have been written, if not for the LZW patent? How about all of xiph's codecs? We wouldn't have Vorbis if it weren't for the MP3 patents.

        Lemme fix that for ya:

        If not for the LZW patent, libpng would never have been needed to be developed. Were it not for the MP3 patents, we wouldn't have needed Vorbis.

        Necessity might be the mother of all invention, but in this case it was artificial necessity. The inventions were only necessary to get around the brick walls created by the patents. Tear down the unnatural brick walls, and the innovation could have focused on incrementally improving those existing techniques instead rather than essentially reinventing the wheel just to bypass them.

    • Re: (Score:2, Informative)

      by Antiocheian (859870)

      IBM is correct, patent holders find it easier to "open the source" while preventing others from employing the idea. This is exactly what RMS wrote: Open Source and Free Software is not the same.

      Read here http://www.gnu.org/philosophy/free-software-for-freedom.html [gnu.org]

    • by dissy (172727)

      Good to see that IBM has no clue what they're talking about. Patents most certainly have not fueled the explosive growth of open source software, the open nature of the licenses and community have.

      IBM never said that. The lies from the slashdot editor in the summary did say that, but they are just that, lies. (* A lie being different from 'being wrong' in that the editor knew IBM never said that. They read the article before we did after all. Knowingly giving false info is lying.)

      What IBM said was that patents fueled the explosive growth of software under the patent holders terms.

      That statement is less arguable, since it is basically true. That is the entire point of the patent system after all.

  • by Snotman (767894) on Thursday September 03, 2009 @12:41PM (#29301123)
    that IBM is an altruistic company? Of course their comments will be self-serving as the number one patent submitter for years. They have mastered the game of patenting everything and they are not about to let that mountain of assets go.
  • Patents drive them straight into the ground.

  • Here's how it works: (Score:5, Interesting)

    by Tablizer (95088) on Thursday September 03, 2009 @12:42PM (#29301137) Homepage Journal

    1. Stupid patents piss off techies
    2. Techies grow to despise corporate-produced software
    3. Techies motivated to make open-source variants to take sales away from evil corporations
    4. Profit! (Well, okay, I added this one out of habit.)

    • you forgot the ????. in this case it's give the software code as OSS and make money off of support and what not.

    • by Verdatum (1257828) on Thursday September 03, 2009 @01:09PM (#29301481)
      I love this idea. I propose a new slogan: "IBM, we're dicks so the good-guys can one-up us."
    • Re: (Score:2, Interesting)

      by Rolgar (556636)

      Already posted this in another patent story today.

      Instead of exclusively considering prior art, we should give the public a chance to respond to every patent application by being given a description of the device, and have an opportunity to develop an invention to the device. If the same or a very similar invention is developed by somebody within a year, then the patent is clearly obvious. If two people submit patent applications simultaneously (and it can be proven that they didn't copy each others' work

      • by ajs (35943) <ajs@@@ajs...com> on Thursday September 03, 2009 @01:53PM (#29302019) Homepage Journal

        Instead of exclusively considering prior art, we should give the public a chance to respond to every patent application by being given a description of the device, and have an opportunity to develop an invention to the device.

        This would break the patent system. The goal is not to reward people who solve seemingly intractable problems. The goal is to foster innovation by providing those who innovate with a lock in their inventions. Innovation is often accomplished in small steps. The paper clip was just a way of using wire to hold papers together. Given its description, you could make a paper clip, but the insight and innovation were rewarded with a patent.

        When we discuss software patents, there's a new kind of problem. Software is, inherently, an expression of mathematics. Patenting math is tough to accept because you can't change the way math relates to the real world, so you're essentially patenting a piece of the known universe... which doesn't make a lot of sense.

        Public key crypto is about the only thing I can see as a defense of patenting software. Here, you're patenting, not the math, but the application of the math to a specific problem domain to perform a task.

        But the question is, how do you move from that to a patent system that can discern the difference and make the right call? Fundamentally, I think you need a review system which is populated by real academics and professionals or it simply can't work.

        • by arth1 (260657)

          This would break the patent system. The goal is not to reward people who solve seemingly intractable problems. The goal is to foster innovation by providing those who innovate with a lock in their inventions. Innovation is often accomplished in small steps. The paper clip was just a way of using wire to hold papers together. Given its description, you could make a paper clip, but the insight and innovation were rewarded with a patent.

          Actually, it wasn't. The paper clip (as we know it) [earlyofficemuseum.com] was never patented.

          Ho

    • Well I'm not saying IBM is right or wrong, but here is the full quote, with some context:

      Given the reality that software source code is human readable, and object code can be reverse engineered, it is difficult for software developers to resort to secrecy. Thus, without patent protection, the incentives to innovate in the field of software are significantly reduced.
      Patent protection has promoted the free sharing of source code on a patentee's terms -- which has fueled the explosive growth of open source so

  • Multimedia (Score:4, Insightful)

    by Anonymous Coward on Thursday September 03, 2009 @12:50PM (#29301245)

    Thanks to patents, there are numerous alternatives to the MP3 format.

    Thanks to that GIF patent (now expired), there is PNG.

    So yes, patents drive development by "encouraging" people to re-invent a different, maybe better, wheel.

    • Re:Multimedia (Score:4, Insightful)

      by marcansoft (727665) <hector@mar c a nsoft.com> on Thursday September 03, 2009 @01:14PM (#29301535) Homepage

      It worked for the better for MP3 (Vorbis) and GIF (PNG), but we're still struggling to get Theora up to h.264's level. I'm personally not sure it's ever going to *quite* happen if they restrict themselves from using patented h.264 features. Nevermind that Theora might infringe on some patents (in fact, it almost certainly does). You can only be sure that something infringes on a patent once you find it, but you'll never know whether there are any patents that cover a portion of your algorithm until they show up trying to sue you.

      The only reason why patents "drive" development is by forcing people to develop a non-infringing alternative, and they tend to improve upon it to drive users away from the patented version. A lot less time would be wasted if the open source community could just improve upon existing standards without having to reinvent everything from scratch.

    • by mmaniaci (1200061)

      Try to think about what all the developers would have done instead of reinventing the wheel. And if GIF/MP3 were never patented, those alternatives could still exist. Stagnation, not progress, is the result of IP law. Progress should always, always, always be put before profits. I know thats a naive statement, but one day I believe we Humans, as a whole, will grow up.

  • Junk patents (Score:5, Insightful)

    by Joce640k (829181) on Thursday September 03, 2009 @12:52PM (#29301279) Homepage

    I'm not against *all* patents. Some algorithms have a serious amount of R&D and ingenuity behind them.

    The problem is the BLINDINGLY OBVIOUS and TRIVIAL things that are being awarded patents.

    Examples:

    A special comparison operator for pointers: http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220040230959%22.PGNR.&OS=DN/20040230959&RS=DN/20040230959 [uspto.gov]

    Encoding of floating point numbers as non-negative integers: http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220050023524%22.PGNR.&OS=DN/20050023524&RS=DN/20050023524 [uspto.gov]

    Policy change notification: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7,269,853.PN.&OS=PN/7,269,853&RS=PN/7,269,853 [uspto.gov]

    There's zillions of them and I'm pretty sure that every line of code being written today violates at least one. It's the equivalent of allowing copyright of individual English words.

    • Re:Junk patents (Score:5, Insightful)

      by mayko (1630637) on Thursday September 03, 2009 @01:05PM (#29301433)
      The same problem is happening in the biotech industry. Patents are being given out for individual proteins, which is not only stupid, but there is no pressure for these patent holders to actually DO something with them. This kind of shit only helps to hold back legitimate progress.
    • Re: (Score:3, Interesting)

      by nine-times (778537)

      I'm not against *all* patents. Some algorithms have a serious amount of R&D and ingenuity behind them.

      I actually find it a bit tough to come up with a good answer to the problem of patents. The first thing that popped into my head when I read about "free software harmed by software patents" is the whole thing about H264/Theora and the HTML 5 "video" tag [arstechnica.com].

      Now I don't really know what's patented in H264, but I could imagine that it may well be some algorithms with a serious amount of R&D behind them. On the other hand, free software can't legally implement those codecs, and so Firefox can't support it.

      • Re:Junk patents (Score:5, Insightful)

        by flymolo (28723) <<moc.liamg> <ta> <olomylf>> on Thursday September 03, 2009 @01:25PM (#29301647)

        Sadly, I think the answer may be government intervention. I was at the aviation museum in Seattle, and I learned something interesting.

        The government had to nationalize a bunch of patents, set the license fees reasonably and pay back the original inventors to get more people working on planes.

        It may be that something similar has to happen to get us the web we want.

    • by Twinbee (767046)

      Wow, someone who recognizes that not all algorithms/software have an equal amount of work/insight put into them.

      • by Grishnakh (216268)

        Yes, there's definitely a big difference between the h264 patents with all the complicated video encoding they use, and the "one click" patent. I think there'd be a lot less complaining about software patents if they at least didn't allow the latter.

    • Oh, and not just software ones. I randomly stumbled upon a patent for connecting invidual buttons to microcontroller pins (that is, without matrixing them) to allow any arbitrary combination of buttons to be pressed without the need for isolation diodes. In other words, it's a patent for not using a technique. I should patent "a display device containing an individual connection for each display element" and sue everyone who makes a device with one or two discrete non-matrixed LEDs. Or maybe patent "a digit

    • Re: (Score:3, Insightful)

      by bzipitidoo (647217)

      We shouldn't hand out monopolies, no matter how much research went into an idea. We should value and compensate worthy efforts in other ways.

      Squashing everyone else who might somehow possibly infringe is a very negative and expensive way to operate. Remember that the courts actually considered shutting down the Blackberry, before settling on a ridiculously huge monetary judgment. They went even further with Vonage, and for a while actually ordered them not to sign up any new customers! This was all "p

    • by smartr (1035324)
      Much of mathematics and law both have serious amounts of R&D devoted to them. Why shouldn't legal defenses be patentable? or literature... Why shouldn't we patent novel plot devices? Yes, plenty of software has incredible amounts of R&D behind it. Software patents seem to mean that all permutations of all heuristic algorithms and non perfect algorithms that are "new" are patentable. Heck, if you made a large enough mathematical discovery, you could patent a patent discovery "machine" that makes nove
    • Some algorithms have a serious amount of R&D and ingenuity behind them.

      And the Theory of Relativity is perhaps the most ingenious "invention" in human history. If it had been allowed to be patented, our understanding of the universe would have been seriously crippled -- the very thing that has happened to the software industry.

    • Excellent point.

      I think it works like this. You have people in the patent office who's job it is to issue patents. They issue the patent if the patent application is filled out in a certain way and is either well written or so boring that they'd be embarrassed to admit that they don't understand it. If they've heard of the place who's written it, that ads credibility from the name recognition.

      On the other side of the coin, you have people in companies who are experts at writing patents. They know the verba

  • by bugi (8479)

    I think they must be speaking to the motivation that patents on abstractions give us freedom-loving persons. So "fueled" with rage, I suppose?

    After all, IBM would never dare oppose the Movement on this.

  • How? (Score:2, Interesting)

    Forgive for being stupid, but exactly how could a patent help free software? A patent is by its very definition an "unfreedom": a restriction imposed by the holder. If I patent (part of) my software, I cannot call it free software without "disabling" that patent. And then again, I am only putting an unfreedom for somebody else to patent the same idea.
    • by JSBiff (87824)

      Aren't very real improvements sometimes the results of someone needing to 'get around' patents, to find another way to do something? Don't get me wrong, because I think that patents cause more problems then good, but I'm just sayin', sometimes, forcing people to find a different way to do things leads them to discover a better way to do it, yes?

      • A moment after posting my previous comment, I remembered PNG. PNG was developed, in large part, as a way to get around the patent claims on the GIF image format. Although, I suppose in that case, PNG might have been developed *anyhow*, because GIF had other drawbacks as well (one being, it was limited to 256 indexed colors). I suspect the (eventual) popularity of PNG had more to do with it being a *better* format than GIF, but the point still remains that part of the impetus for developing it in the first p

  • IF (Score:2, Redundant)

    by DaMattster (977781)
    IBM seriously expects me to believe the twisted logic that Software Patents help free software, then they need to hire another marketing team. The only way software patents could possibly help free software is if the Free Software Foundation and others like it patent software to ensure that it stays free. Guarranteed any patents sought by IBM are not altruistic. This is just one more example of greed, avarice, and lies from corporate America. IBM, Microsoft, Apple, and indeed any other corporations are frie
    • IBM seriously expects me to believe the twisted logic that Software Patents help free software

      No, IBM seriously expects the Supreme Court will believe the twisted logic.

  • by OhHellWithIt (756826) * on Thursday September 03, 2009 @01:11PM (#29301507) Journal

    TFA says:

    patent protection has promoted the free sharing of source code [...] which has fueled the explosive growth of open source software development.

    Here's the quoted footnote from the Amicus brief [patentlyo.com]:

    See, e.g., In re Alappat, 33 F.3d 1526, 1571 (Fed. Cir. 1994) (Newman, J., concurring). Given the reality that software source code is human readable, and object code can be reverse engineered, it is difficult for software developers to resort to secrecy. Thus, without patent protection, the incentives to innovate in the field of software are significantly reduced. Patent protection has promoted the free sharing of source code on a patentee's terms -- which has fueled the explosive growth of open source software development.

    The emphasis on "on a patentee's terms" is mine, and the phrase omitted from TFA is vital to the meaning of the sentence as a whole. I believe Adobe's release of the Portable Document Format specification is a case in point. Adobe made the specification available with the stipulation that it not be used to develop products that compete with Adobe's products. The open specification allowed the development of all kinds of open source tools (as well as closed-source tools) that make PDF much more useful to everyone, yet Adobe is protected from having its development investment and future business stolen.

  • by mpapet (761907) on Thursday September 03, 2009 @01:17PM (#29301565) Homepage

    Classic example of how economic interests take an inherently good thing (Free software) and weaponize it.

    IBM couldn't beat Microsoft, so they regrouped around Free software. Everyone still benefits. So far so good.

    IBM is still evil though. Anyone old enough to remember when IBM PC *was* a personal computer can back me up on this.

    I would argue that IBM is setting themselves up to be able to litigate competitors using Free software on the basis of patented processes inside the code. Sure, the software can be freely distributed, but if you eat into IBM's business, they will litigate the process patents.

    Hence the need to conflate Patents and Free software.

    Someone please provide some contrary arguments.

    • by i.r.id10t (595143)

      IBM also "opened" the specs and info on the PC so that clones could be made...

      • Actually, the IBM PC was done on the cheap, being one of those little projects that IBM kinda hoped might pay off sometime. This meant using off-the-shelf components and a quickly hacked together 16K BIOS ROM. IBM did try to stop clones from being made, but the BIOS was soon duplicated in functionality (I think by clean-room processes), and the occasional patent threats IBM made didn't stop the clone makers.

        I never saw any sign that IBM wanted to encourage clone makers, as opposed to signs that IBM wan

    • by Draek (916851)

      IBM is still evil though. Anyone old enough to remember when IBM PC *was* a personal computer can back me up on this.

      I'm old enough to remember that time, and until yesterday I would've disagreed with you and pointed at all the Open Source projects IBM collaborates with, if not created them outright.

      Today, however...

  • by poetmatt (793785) on Thursday September 03, 2009 @01:18PM (#29301577) Journal

    They actively employ people to use open source, and foster it's development, and yet they are supporting patents? Am I missing something in that general concept?

    I mean what about employing people to support open office and lotus symphony and all that, which is all expressly supported by IBM?

    • by Ant P. (974313)

      They actively employ people to use open source, and foster it's development, and yet they are supporting patents? Am I missing something in that general concept?

      Lotus Notes! The biggest cause of internal miscommunication since the Berlin Wall.

  • by prgrmr (568806) on Thursday September 03, 2009 @01:21PM (#29301613) Journal
    Software is the means by which we use ourcomputers to do word processing, send email and surf the Web; it enables our cellphones to connect to wireless networks; it allows air traffic controllers to safely schedule the arrival and departure of flights; and it permits physicians to diagnose and treat illnesses. Software is, in short, a fundamental, and increasingly indispensable, technological innovation.

    Not quite. Software may assist, expedite, or allow, but it certainly does not "permit" a physician to do his job, as he already had that permission prior to the use of any software-driven medical device. Also, if my cell phone bricks, it may be an inconvenience, but it's not indispensable, as I still have other means and methods of communication available to me.

    And that's just from the introduction. The rest of it is just a slanted and over-blown, and ultimately, misleading.

    In the months since the Federal Circuit issued its opinion, and to IBMâ(TM)s great concern, a number of administrative and judicial decisions have rigidly applied the âoemachine or transformationâ test to questionâ"in some cases explicitlyâ"the patentability of software per se. Software technology is vital in addressing societyâ(TM)s most pressing challenges. IBM is committed to ensuring that such technology is and remains patentable.

    (emphasis mine)

    This is IBM's only real agenda here.
  • by TopherC (412335) on Thursday September 03, 2009 @01:25PM (#29301651)

    Obviously EndSoftwarePatents needs specific examples of how companies are being hurt. So far I don't see any examples posted here. It depends on what is meant by "harmed". Does this mean they have lost a court case? Perhaps the best example is IBM's own court expenses in the case brought against them by SCO. No, that was alleged copyright infringement, not patents. I guess a proper example is how the vfat filesystem in Linux has to dance around with short and long filenames. That's not on the list yet.

    With copyrights, people loose productivity all the time by having to actively avoid looking at certain pieces of code for examples or ideas of good implementation. But with patents it's more of a sinister fear that any idea you come up with might be illegal to distribute, or "speak", because someone else might have patented it. You can't do anything about that other than live in fear, since there's no process in place to automatically avoid patent infringement. Maybe existing patent law could be argued as impinging on free speech! Okay I've rambled enough already.

    • by PineHall (206441)
      Desktop Linux has been hurt by not being able to produce distributions that have patented audio and video codecs. Patents have prevented desktop Linux from just working. The average Joe wants to watch video and listen to music without having to install software that tells him this may be illegal.
  • I'd argue that doesn't make sickness good or okay.

  • by MarkvW (1037596) on Thursday September 03, 2009 @01:41PM (#29301855)

    IBM's brief does not define "open source." The open source references in the brief are not supported by much in the way of reasoning or argument.

    Here's what I think IBM is saying:

    If we get a patent, we don't have to keep our source code secret any more--we can now disclose our code to everybody. That's open source!! The source becomes open when we put it in our patent materials! We still have a monopoly (because of the patent), and we can sell our monopoly product any way we want. But now the stuff is OPEN!! That's good for development . . ..

    IBM is technically correct in using the term "open source" in this manner. "Open source" means different things to different people. It obviously means one thing to IBM and its lawyers and a different thing another to Stallman and the FreeBSD crowd.

    IBM wants a world where it can lock up the use of its software completely (via patent), except for when it CHOOSES to open source it.

    This bugs me. It seems to me that if I buy a computer, I ought to be able to freely express myself via algorithms that I independently discover. For example, if I discover a unique algorithm that enables me to very effectively conduct political speech with my computer, IBM shouldn't be able to foreclose me from using my computer (a communication device) in that manner.

    • So wrong. The Term Open Source is not ambiguous. It was well defined when it was first used/coined, by the Open Source Initiative, a non-profit who is responsible for beginning the use of the term open source, and who maintains The Definition of Open Source [opensource.org].

      The way you are claiming the term "Open Source" is being used is in clear contradiction to the definition. In fact, THE VERY FIRST LINE of the definition is:

      "Open source doesn't just mean access to the source code. The distribution terms of open-source s

      • by MarkvW (1037596) on Thursday September 03, 2009 @02:19PM (#29302385)

        Just because one person defined a term doesn't mean that all people have to use the term in that way--especially lawyers writing legal briefs. Lawyers twist meaning. That's what's going on here. IBM wants to enlist the cachet of "open source" in aid of its argument. It's as simple as that.

        Think about who the IBM lawyer is writing for: The lawyer is writing for the US Supreme Court. Do you think that the Supreme Court will accept the doctrine that the Slashdot meaning of "open source" is the meaning that the Supreme Court must adopt? The definition of "open source" is flat-out fair game right now, and if you assume otherwise you're just a zealot or fanboi.

        I'm suggesting that IBM is using the term in a manner different from that used by the FSF/FreeBSD people. The FSF/FreeBSD people need to take that context into account when they frame their argument against IBM's argument.

        • Sure, some lawyers twist the meaning of words... so let's call them on it. But the U.S. government (USG) already has an official definition of "open source software", and it is NOT "you can read it". Office of Management and Budget (OMB) M-04-16 [whitehouse.gov] defines the term "open source software", saying that "Open Source Softwareâ(TM)s source code is widely available so it may be used, copied, modified, and redistributed". It's really the "Free Software Definition", but the OSI definition and the Free Software

    • by JSBiff (87824)

      Oh, by the way, one additional point. Richard Stallman hates the term Open Source [gnu.org]. He thinks it minimizes the importance of Software Freedom.

  • by Theaetetus (590071) <theaetetus.slash ... .com minus distr> on Thursday September 03, 2009 @02:06PM (#29302207) Homepage Journal

    EndSoftwarePatents, for its own amicus brief, is looking for help building a list of free software harmed by software patents, and a list of companies that distribute free software and are taxed by patent royalties."

    Essentially, their argument hinges on the preamble of Art. 1, sec 8, clause 8 - "To promote the Progress of... useful Arts," and the claim that if software patents stifle innovation, then they're unconstitutional. Problem is, we're not dealing with a fundamental right or an equal protection argument, so the Court will use a rational basis test - could Congress have had a rational basis for passing 35 USC 101 and not excluding software patents? If so, it's constitutional. And the Court always defers to Congress on stuff like that. Asking the Supreme Court to add a software exclusion into Title 35 on a constitutionality argument would be asking them to be "activist judges". And that just isn't going to work.

    Want to change the patent statute? Lobby Congress. They have full authority to do anything. There's not even a Constitutional requirement that patents exist - the clause merely gives Congress the power to enact patents, if they want to. But they don't have to. They could outlaw all patents tomorrow and that would be Constitutional (caveat - may have a due process issue for the next 20 years over people who filed for patents already, but that's a separate issue).

  • IBM's Supreme Court Brief Says That Patents Drive Free Software developers crazy
  • by northernboy (661897) on Thursday September 03, 2009 @02:50PM (#29302883) Journal

    I seem to remember in the early days of the web, there was a graphics format called GIF. Somebody like Unisys held a patent on the format, but initially didn't seem to care that most Web users didn't realize there was a patent. Then, one day, Unisys woke up, changed their attitude and announced that licenses would be needed from now on - several thousand dollars? Almost overnight, PNG was born. So, I guess in a sense, IBM has a point - patents lead to open source development. However, they neglect to mention that in cases like ReportLab (makes a Free/Paid Support PDF generator library in Python) a sudden change in licensing policy might result in innovation at the expense of existing innovators.

    Patents are a valuable part of a thriving commercial system, and there are obvious benefits from patent law. But I think there are also significant benefits from patent-free zones. The trick is to figure out how to maintain the balance to ensure fairness, and enable benefits from both patented innovation and patent-free innovation.

Top Ten Things Overheard At The ANSI C Draft Committee Meetings: (8) I'm on the committee and I *still* don't know what the hell #pragma is for.

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