Tridgell Recommends Reading Software Patents 173
H4x0r Jim Duggan writes "Andrew Tridgell rejected the common fears about triple damages: 'If you've got one lot of damages for patent infringement, what would happen to the project? It's dead. If it gets three lots of damages for patent infringement, what happens to the project? It's still dead.' Tridge then explains the right way to read a patent and build a legal defense: 'That first type of defence is really the one you want, it's called: non-infringement. And that is: "we don't do that. The patent says X, we don't do X, therefore go away, sue someone else, it's not relevant for us." That's the defence you want. [...] Next one, prior art: [...] Basically the argument is: somebody else did that before. It's a very, very tricky argument to get right. Extremely tricky, and it is the most common argument bandied about in the free software community. And if you see it in the primary defence against a patent, you should cringe because it is an extremely unsafe way of doing things.' There are even some tips in the talk specifically for Slashdotters."
There is always another patent. (Score:3, Insightful)
In the same way that there is always a bigger fish.
And what you have to fear are overly broad patents and patent trolls.
Many patents are there not for suing the ass off the competition but to protect yourself from getting attacked.
Re:There is always another patent. (Score:5, Insightful)
Which only became a problem with the invention of patents in the first place and keeps getting worse.
http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm [ucla.edu]
Re:There is always another patent. (Score:4, Insightful)
You make it sound like it's trivial to copy a patent worthy idea when it really isn't.
If an idea is interesting, it will be exceedingly difficult to copy the work that's rather the point.
If you have never read the relevant patents but have managed to "copy" the relevant invention
then that should nullify the patent right then and there because what is happening now is that
the patent holder is TRYING TO STEAL THE PRODUCT OF YOUR INTELLECT.
This the problem that is glossed over by the corporate toadies.
BS patents steal from everyone else. They steal from everyone else the ability to benefit from one's own labors and one's own intellect.
Patents are intentionally obtuse for "legal" reasons. Dealing with them for the most part is
more trouble than they are worth even if you only consider them "useful documentation" rather
than something to create defenses for.
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The problem is twofold. One part is the shoddy enforcement of non-obviousness and novelty. Every patent of an obvious idea or of something that's already been done or even of a fairly obvious evolutionary step is just a big drain on innovation.
The second is the patent system's failure to recognize independent invention. If I invent something by the sweat of my own brow, I have a right to try to profit from it. The troll who pops up demanding money because the patent they (quietly) hold is similar is trying
Re:There is always another patent. (Score:5, Insightful)
And since free software competing with yours is definitely an attack, why not attack? The very idea of patents, after all, is to encourage people to share their inventions by protecting them from competition in turn. That failed miserably, but can't be helped anymore, there's too many financial interests milking the current system for all its worth.
Anyway, the real defence is moving to a (software patent) free country.
Re:There is always another patent. (Score:5, Informative)
And since free software competing with yours is definitely an attack, why not attack?
He answers that in the article, he says we need to make the OSS community the hardest, meanest thing possible to attack with a patent, and he explains a way to do it:
Every time an open source project gets sued, we need to find a workaround for the patent, and publicize it loudly, so anyone can use that workaround. The great thing is, after that, the suer would no longer be able to collect royalties from anyone for that patent, because they will just use the workaround. Suing the open source community will be equivalent to losing all potential revenue from your patent. No one will want to do it.
Re:There is always another patent. (Score:5, Insightful)
Every time an open source project gets sued, we need to find a workaround for the patent, and publicize it loudly, so anyone can use that workaround. The great thing is, after that, the suer would no longer be able to collect royalties from anyone for that patent, because they will just use the workaround.
Yeah, because that worked out so nice and easy with PNG vs GIF, didn't it?
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Well yeah it did? Most web graphics that are not photographs seem to be PNG these days.
I still see more GIFs than PNGs on the Web.
And it's also worth remembering how long it took. PNG spec was published in 1995.
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That is mostly because Internet Explorer didn't properly support PNG until the GIF patent expired.
which is not so much a problem with patents, or workarounds, but with monopoly power of a product - in this case IE6.
Fortunately, this would not be an issue anymore as IE seems to be headed to the folder marked "niche browser", but it is still an issue with other monopolistic products - eg if there was something that was patented but used by Windows that only the open source community wanted to replace, but MS
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IE always supported PNGs enough to be direct replacements for static GIFs (indexed colour PNGs supported a single transparent colour just like GIFs, just not alpha effects).
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That's a workable solution to proprietary resources under active copyright, since copyright protects the expression of the idea, not the idea itself.
Patents are more problematic because they have become so broad in their scope can not only cover a specific method for implementation of an idea, but the idea itself. In such cases, even a clean-room reverse-engineered re-implementation of the idea may still be vulnerable.
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It would be great then to come to an understanding with companies regarding patents that if they ever attempt to enforce (or transfer their patent to another to enforce) a single patent, we will take notice and consider them hostile to our interests. Defensive patents, sure, we can live with that.
I think some earlier drafts of the GPL3 attempted to have this kind of reasoning - I think those clauses were removed.
Here's a better idea (Score:5, Insightful)
When I'm writing code, I don't have to worry about patent infringement, because the stuff isn't patentable. That way I can write code just like you write anything else; without looking over your shoulder.
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Here's an idea. When I'm trying to feed my family, I don't have to worry about money because the stuff can't be owned.
As nice as the world might be if food was free and software had no patents, that isn't the world we live in. And no amount of wishful thinking on slashdot is going to change it. If you want to get rid of software patents, start saving up to buy a politician. Or find one that can't be bought. But I'd say option 1 is more realistic.
Re:Here's a better idea (Score:5, Insightful)
In the meantime, we can keep spreading the ideas of IP abolitionism, encouraging people to ignore it when they can get away with it and to push for legal change. A movement is important when fighting such established interests - buying or convincing one politician won't really do (and isn't really doable on this issue)
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And that, my friend, is the perfect answer to your suggestion.
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People don't in general have the duty to go to jail for their beliefs. People do have the duty however to do what they can to realise those ideas they consider to be good. If you think going to jail is going to fix anything, you're free to do so, but I wouldn't consider it a very effective form of activism under the current circumstances.
Posting AC because it seemed appropriate.
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Are you posting from jail? Or do you believe that everything's fine with the world?
Civil disobedience was exactly what Gandhi preached. When the salt tax was imposed by the British, he went and made salt without paying the tax [wikipedia.org]. Exactly what GP is defending.
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he went and made salt without paying the tax
And did so publicly. He didn't try to hide his illegal activities as that would have made him no better than a a common thief.
Infringing on people's IP and hoping you don't get caught is not civil disobediance. Its simply breaking the law because you feel like it.
After all, Ghandi said himself
When any person in authority seeks to arrest a civil resister, he will voluntarily submit to the arrest, and he will not resist the attachment or removal of his own property, if any, when it is sought to be confiscated by authorities.
I find it offensive when people try to cloak their criminal activities as civil disobedience. Of course, calling someone out for it is going to get me modded down here at slashdot, where people too afraid to take on au
Re:Here's a better idea (Score:4, Interesting)
I'm glad you wern't around at the time of the underground railroad.
"Freeing someone's slaves isn't civil disobedience, it's theft. If you really wanted to end slavery, you'd earn money to buy those slaves to set them free"
I am not trying to be Gandhi, I am trying to win. Encouraging a culture where IP claims are disrespected and seen as legacy is the best tactic we have to begin to prepare society to abolish it. I don't in fact particularly care to take on authority figures - it's not that I'm afraid of it, it's that it would not be an effective confrontation.
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--Mahatma Gandhi
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The post said "when you can get away with it". It didn't say "when nobody knows what you're doing". There's a difference, though certainly some overlap.
Re:Here's a better idea (Score:2, Informative)
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Cute, but I'm not an ostrich. There are many things in the world that I don't like, but being *that* sensitive to framing is a pain.
Re:Here's a better idea (Score:5, Informative)
Re:Here's a better idea (Score:5, Insightful)
> As nice as the world might be if food was free and software had no patents, that isn't the world we live in.
Remember that software patents are basically non-existant in Europe..
Growing food is labor intensive, so it cannot be truly free(*), software patents are only a self-inflicted wound.
*: unless you can convince people to give their work for free, _someone_ has to pay for the tools and the labor used to grow food.
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> As nice as the world might be if food was free and software had no patents, that isn't the world we live in.
Remember that software patents are basically non-existant in Europe..
Not strictly true. Certainly the UK patent office (and I believe some others) have been merrily awarding software patents for some time. Though I don't know of any infringement lawsuits.
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However many of the offending patents are US patents. They are not enforceable here anyway.
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However many of the offending patents are US patents. They are not enforceable here anyway.
But they are enforceable if you want to sell a product based on them in the US.
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Huh? Last time I checked writing software was pretty labour intensive too. And requires someone to pay for that labour and the tools needed (unless you can convince people to give their work for free). There are many good arguments against software patents, this doesn't
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No, you missed the analogy.
To “duplicate” food, you cultivate and fertilize some soil, put the food in the ground, water it, wait, cultivate it and fertilize it some more, spray it with pesticides to keep bugs and animals from eating it, wait some more, water it, spray it, wait, water it, harvest it, process it, and package it.
To “duplicate” software, you click the “burn” button.
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Could be that your original analogy was poor.
You're comparing the effort required to produce a crop with the effort required to copy an existing piece of software, once it's already been produced. You omit the whole "design, write code, test, debug, package, distribute, support" effort involved in software - all of which takes time, effort, money, tools, and a significant amount of skill & knowledge.
There are certainly great arguments against software patents. Your analogy i
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your original analogy was poor
The original analogy was made by aussie_a [slashdot.org], not myself. He claimed that Anonymous Coward’s statement:
is analogous to his own statement,
And yes, it is a poor analogy.
You're comparing the effort required to produce a crop with the effort required to copy an existing piece of software, once it's already been produced.
That’s the whole point. It is difficult to produce a crop. It is easy to copy software. That is why it was a poor analogy.
I of [slashdot.org]
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You're right - my apologies. I misread the headers and thought you had made the original analogy as well.
And for what it's worth, your analogy *is* better. Though since it wouldn't fit on a bumper sticker, it'll probably be modded down.
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Most cities spend a great deal of money on paving everything, and then a great deal more on cutting little squares out of the pavement and planting trees. Why don't they plant fruit trees? Food DOES grow on trees!
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Except your labor is a ONE TIME THING.
It is not something that should grant you payments in perpetuity.
In actual practice, it rarely does.
Some "captain of industry" scoops it up, throws a few pennies at you and reaps all of those perpetual benefits himself.
So you are the ABSOLUTE LAST person that should be calling anyone else a "wannabe".
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The analogy could be improved, true: food is a physical object, so you cannot share it (if you eat the food, then I can't and vice versa), so if it costs something to produce food, someone has to pay for it, software can be shared: patents which prevents the sharing are totally artificial restrictions which are made to raise price of software.
Plus even if programmers are paid (which is not always the case), it doesn't mean that the software itself must have a price: as shown by all the companies which pays
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Here's another idea: Let's recognize that software is the _only_ form of creative expression covered by patents _and_ copyrights. Let's further recognize that this conflation was and is a HUGE mistake. Let's choose one or the other and move on.
I suggest copyright is the appropriate protection to rely upon as the process of software development is much closer to writing a screenplay than it is to inventing a new widget. Care to debate my reasoning? ;)
Now, as to buying a politician or four, I'm willin
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Really? Software is more a form of creative expression that designing a unique and elegant physical mechanism to perform a task?
Writing code that manipulates bits in a black box is no more creative than designing a set of cogs and wheels inside a metal box.
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"Here's an idea. When I'm trying to feed my family, I don't have to worry about money because the stuff can't be owned."
That is not the point and frankly just silly.
I like FOSS and have written some. I make my living from Closed Source software and I have a hardware patent. I see a place for both.
But what we are talking about here is patents. The idea that you can patent software just insane.
You can patent a book? Or a Song? Or a set of house plans? Or a set of Homebuilt aircraft plans? Or a movie? Or a sto
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You can patent a book? Or a Song? Or a set of house plans? Or a set of Homebuilt aircraft plans? Or a movie? Or a story? No all of those are protected by copyright law as should software. It is just that simple.
Your comparison to books, plans, stories, etc. misses the point a bit - those are tangible embodiments of an idea, which are protected by copyright. Patents protect the idea. For example, that homebuilt aircraft may incorporate some new inventions... just because you can't patent the blueprints doesn't mean that you can't patent a new type of aircraft engine.
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But software is intangible. You could patent some item that the program makes say if you used it to run a CNC machine but you can not patent the program.
That is what software is. A tangible embodiment of an idea. That is why in the EU they don't have software patents and why we should not in the US.
The very fact that software is completely intangible means that it must be protected with copyright and not by patent.
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But software is intangible.
So is the idea of an aircraft engine. It's just an idea.
You could patent some item that the program makes say if you used it to run a CNC machine but you can not patent the program.
That is what software is. A tangible embodiment of an idea. That is why in the EU they don't have software patents and why we should not in the US.
They totally have software patents in the EU, you just don't call them software patents. They have a doctrine that's like the Bilski rule, so tying the software to a specific machine makes it patentable. The software - just like a method not tied to a machine or causing a transformation in the US - is unpatentable, but the idea certainly is.
The very fact that software is completely intangible means that it must be protected with copyright and not by patent.
Nope, because by definition, intangible things cannot be protected by copyright. Copyright only protects fixed ta
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Patents protect the idea.
No, no, no - that is wrong
Patents require (or at least they're supposed to) that you reveal the ideas, and that you publish how to turn the ideas into practice.
Patents do put up a legal roadblock to making specific novel machines, processes, and materials. But the trade off for that is to encourage the spread of knowledge that otherwise might be kept as trade secrets.
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Patents protect the idea.
No, no, no - that is wrong
Patents require (or at least they're supposed to) that you reveal the ideas, and that you publish how to turn the ideas into practice. Patents do put up a legal roadblock to making specific novel machines, processes, and materials. But the trade off for that is to encourage the spread of knowledge that otherwise might be kept as trade secrets.
No, that's right. Protection doesn't require secrecy, as you assume. I can put up a fence to protect my house, but my house is still visible to the public. I can exercise legal action to remove trespassers, but they're not walking on my invisible lawn. The patent protects an exclusionary property right in the idea.
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Terrible analogy.
Better analogy:
Here’s an idea. When I’m trying to plant my field, I don’t have to worry about GMO patents because the stuff isn’t patentable.
Just because I don’t think software algorithms should be patentable doesn’t mean that somebody should be able to go into Micro Center and walk out with a rack of software CDs without paying for them. And just because I don’t think it should be legal for Monsanto [wikipedia.org] to own a patent on a particular variety of cotton
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Here's an idea. When I'm trying to feed my family, I don't have to worry about money because the stuff can't be owned.
If we as a society devoted as much effort to making food clothing, and shelter freely available (through mechanization) or close to it (through fair business dealings and efficiency) as we do on making hair sprout on bald heads, we'd likely have succeeded by now (except for the inevitable political squabbles from right wingers who would prefer to starve out half the planet rather than risk having even one poor person get "something for nothing").
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And in the same 3 lines you managed to propose nothing whatsoever.
The World? (Score:2)
As nice as the world might be if food was free and software had no patents, that isn't the world we live in.
You may want to distinguish between the country you live in and "the world". Most european countries, for instance, still do not allow software patents at all.
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When I'm writing code, I don't have to worry about patent infringement, because the stuff isn't patentable
I don't think software patents need to go away altogether, it just needs a bit of reform. Software engineering is a very complex, confusing, and quickly growing field. Without patents, the best algorithms are going to be kept secret and that helps no one Copyright protection doesn't cut it if I can rewrite your concept in language foo and claim it as my own. Whether you're selling something for $1,000,000 or $0 dollars, the same rules apply; legally use someone else's patented ideas or come up with your
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Sorry, dude. Perhaps there are some 0.01% of software patents that are truly worthy of patent protection. But the other 99.99% of unworthy software patents do far more damage than the tiny set of brilliant useful software patents, so it's better overall to just get rid of all software patents.
I don't trust politicians to be able to reform the patent system to raise the threshold for innovation so that only the worthy 0.01% (or whatever) would be patented. And even if they did, I don't trust the USPTO and
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the best algorithms are *already* kept secret.
Or as secret as they can be given that there's hordes of people with talents with debuggers.
a distressing number of software patents completely fail to contain any source code or even decent pseudocode.
I can imagine rare situations where a patent on software might be justified but as it stands there's no requirement that source code be provided.
Instead they patent the general idea and use vague flowcharts instead of explicit code.
It's possible to innovate your w
Stupid System (Score:2, Interesting)
Re:Stupid System (Score:4, Insightful)
Because it is as close as anyone is going to get as far as logical watertightness goes. Let P be "You are using a patented idea" and Q be "It's been done before". Enforcing a patent requires P.
Patent owner: "P is true of you." (Initial threat)
You: In fact Not-P is true of us.
Patent owner: OK, Not-P so we can't enforce patent.
vs
Patent owner: "P is true of you."
You: P is true but Q is true also. (You try to stop legal wrangling with Q.)
Patent owner: OK, P so we can try to enforce patent, regardless of Q. We'll try to show Not-Q.
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In criminal defense, you can use multiple strategies to try to show innocence, even if those arguments are not mutually exclusive:
For example, if you were trying to defend yourself against a murder charge, I believe you can argue the following:
1. I wasn't even there
2. Even if I was there, I wasn't the actual person to killed him
3. Even if I did kill him, it was an accident
If any one of those holds, you're a free man, but logically you can't argue all three (from a non-legal perspective). In the court room,
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The Burden of Proof in a civil case is much looser than in a criminal case.
So in a criminal case you argue all three of those and if any of them stand then there is reasonable doubt.
In a civil case the jury just needs to believe that it is more likely that one party is in the right then the other. So if you make a bunch of different arguments and some seem to hold water but others don't your not really helping yourself.
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Shoot, you got my wheels turning...
Definitions:
Complicated System (Score:2)
Why is the legal system so fucked up that it's easier to win with "We don't do X" instead of "X has been done before" when it's extremely obvious that X has been done before?
Because "we don't do X" is a very easy, black and white conclusion. Whether something is obvious or not is a very difficult analysis, requiring examining multiple factors, the state of the art at the time of invention, the ease of combining different prior art references without undue experimentation, how skilled the average person in the profession is, etc. Compare it to other areas in the legal system - it's much easier to beat a murder rap if the victim is still alive, than to try to show that your quest
Hidden costs (Score:5, Insightful)
The cost of searching for patents whenever you're doing something, anything, really, is a huge burden on any R&D department. By forbidding employees to look at patents, companies make then focus on the important stuff: making things.
Re:Hidden costs (Score:4, Insightful)
But you can't really find a workaround if you can't understand the patent, right? So he goes through and explains how to read the patent. He carefully explains that most people on Slashdot don't know how to read a patent, and explains the right way to do it. My wish is that every mod reads the article and then mods down those commenters in stories that don't have a clue how to read patents. That would raise the level of discussion here. But it probably won't happen (sigh).
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Reading patents is a good idea.
Since unlike with copyright, originality is not a defense to a patent infringement claim.
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Only if you read the patent and then push on ahead anyway. By reading them you get a heads up of what not to implement.
You shouldn't be infringing patents to begin with anyway, so what's the difference?
Re:Hidden costs (Score:5, Interesting)
How do you work around the Apple multi-touch patents?
Start by being specific about which patents you mean. "The Apple multi-touch patents" means nothing. Apple has a great many patents, 28 of which contain the words "multi-touch" in the text. Here's a likely candidate, #7656394, "User interface gestures".
All five independent claims refer to "proximity images", so the obvious work-around for this patent would be to begin with a system that does not use an image (a regular, contiguous array of pixels in two or more dimensions) as the primary data structure.
There's more to it than that, but the basic process is the same: be specific as to what patent(s) you are concerned with; read the CLAIMS (not the abstract) carefully and then the supporting material to ensure you understand the terms of art being used.
This patent doesn't actually define "image", but it is clear from context, and equally clear from common usage that a data structure that contains only a list of (mostly non-contiguous) points of contact is not an "image".
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I wish I had mod points for this post. Too many on slashdot rage against the system without actually knowing the first thing about it, just vaguely that there are patents and they describe things in some fashion and they are bad.
Risk of large costs (Score:3, Interesting)
'If you've got one lot of damages for patent infringement, what would happen to the project? It's dead.
Not necessarily, since the product may already be released, and the project to create it may be already completed. The damages award is typically made after lengthy legal proceedings, and it's not likely that the development project is still active. Those involved have probably moved on to other projects, been promoted, or changed employer. Paying tens or hundreds
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You work at places where the software is released, and never touched again? That's amazing. You should probably patent your process for creating complete v1.0 software.
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Not necessarily, since the product may already be released, and the project to create it may be already completed.
You work at places where the software is released, and never touched again? That's amazing. You should probably patent your process for creating complete v1.0 software.
Perhaps that's why I said the project to create it is completed. Software maintenance (bug-fixes and interoperability enhancements) occurs sporadically, but involves effort which is orders of magnitude less than the initial development. In general, there is nobody assigned until an issue arises, and then only for as long as it takes to resolve the issue.
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Patent searches may not be cost-effectife; this is second hand info so of course be wrong (sometimes I'm wrong with 1st hand info), but a fellow I knew several years ago (actually my ex-wife's brother in law) worked at a place where they manufactured mechanical gizmos. His boss would bring a competetitor's gizmo and ask "can you make one of these?" Once he asked his boss "can't we get in trouble for violating their patent?"
The answer was "that's why we have lawyers on the payroll."
He said that often they co
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Someone mentioned GIF vs PNG earlier, the patent on GIF is almost over.
The GIF patent *is* over: [wikipedia.org] The US LZW patent expired on June 20, 2003.[19] The counterpart patents in the United Kingdom, France, Germany and Italy expired on June 18, 2004, the Japanese counterpart patents expired on June 20, 2004 and the counterpart Canadian patent expired on July 7, 2004.[19] Consequently, while Unisys has further patents and patent applications relating to improvements to the LZW technique,[19] the GIF format may now be used freely.
We need obviousness reinterpreted for sw patents (Score:3, Insightful)
I think that the best overall defense is if someone can take a case all the way to the supreme court, and argue that the threshold for obviousness
is way out of whack in the granting of software and business process patents.
The goal should be to get a test mandated by the supreme court along the lines of: If three out of four average 3rd year comp sci students
could design and code it up in a month, having heard only the requirements and not the design, then it's f***ing obvious to a competent practitioner
in the field, and should be dismissed.
Who knows. There may actually be algorithms clever enough to deserve patent protection for 5 years or so. But right now those would probably be
1 out of 100 of the patents granted, so the whole system is in total disrepute and it is the duty of a responsible practitioner in the field, as a protest,
to ignore and not view and thus not heed any USPTO software or business process patents, until they entirely revamp the standards and
throw out all patents granted under the existing broken standards.
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Yeah, taking it all the way to the Supremes worked really well in killing off infinite copyright extension, didn't it?
Widen and shortern (Score:2)
Bah Humbug (Score:4, Interesting)
Reading patents with an eye to identifying "Technologies" to use is an exercise in futility:
Most are stupidly obvious. The others written in leagalease.
Reading patents with an eye to identifying "technologies" to avoid is also an excercise in futility. Again, you need the mind of a lawyer, combined with the approach of a security researcher, to "see" the ways a patent could be exploited to somehow map to your own problem domain. That you were happily solving without resorting to the giant database of solutions to micro problems no one is interested in.
Next, theres just too damned many of them. If anyone took the time out to exhaustively read and analyse each patent enough to determine if the possibility for collision existed, well they wouldn't have a problem with patents as they'd never write any code.
Lastly, it takes courts a long time to determine if a particular product does conflict with a patent. This means theres a lot of grey area around the edges of a patent to determine if a particular approach is covered or not. Which means, of necessity, that, like Chinese ISPs, developers who read a patent would have to defensively eliminate huge swathes of potential solution space from their investigations, to avoid getting "too damned close".
an idea, or 1 implementation of an idea? (Score:4, Insightful)
I see several problems with Tridgell's approach.
1st, his talk assumes patents cover only a specific, narrow implementations of ideas. And if some patent troll challenges you, all you have to do is show your idea is slightly different. He says we've gotten it all wrong, because there isn't any such thing as an overly broad patent. I don't know. Isn't the point of a patent to cover an idea, no matter how it is implemented? What is a business method patent, if not that? But if he's right, then RIM really blew it. All they had to do was show that NTP's patents don't cover exactly, precisely what they did and the way they did it. That should have been easy, because they came up with their own system. Somehow, I think that if it had been that easy, RIM would have found the way. Instead RIM tried what he strongly recommends against, that is, they tried to show prior art. There was just this minor problem that their legal team foolishly hoked up some fakery on that point.
2nd, he assumes too much about the methods of the patent trolls. Sure, it all comes down to making money, but the straightforward approach of attempting to collect license fees isn't the only way to use a patent to that end. There's the use of patents to stifle competition. That's why MS supported SCO, not to profit off of licensing fees for Linux, but to hurt Window's biggest competitor. Then there's the shakedown, as IBM once did to Sun over 7 patents, including the infamous "fat lines" one. Sun did exactly what Tridgell says to do. They demolished IBM's claims of infringement. And it didn't work because IBM pointed out that they have over 10000 other patents. "Do you really want us to go back to Armonk and find 7 patents you do infringe?" Well, maybe Sun shouldn't have caved. And, there's harassment of the sort SCO did. They knew they didn't have a case-- they were just making a big legal stink in hopes their victims would decide it's cheaper to buy them off than fight them in court. How did PJ tear SCO's case apart? The way Tridgell recommends? Yes, but that was only a part of it. There was also effort to throw the validity of SCO's patents into question by showing prior art.
Aggressive defense (Score:2)
Of course prior art is a more popular argument in the free software community because it is a more aggressive defense. It's an attack against the patent itself. The free software movement is keen to destroy patents they consider unjust (which for broad and vague patents such as "taking online orders with a single click" or "online course management" is a given), and merely avoiding the damage from lawsuits may look like a "weak" move.
(Which is probably par for the course in law: Clients resent their lawyer'
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Tridgell talks about how to avoid infringing, and if you're accused of it, how to best defend yourself under the current system. Free Software advocates want to blast the whole of the current system to bits.
Free Software thinks if they show enough bogus, stupid, ignorant patents, it will become obvious that the system is broken & should be scrapped. Most companies involved in patent litigation are not interested in spending millions or billions of dollars to change the system over the next 20 years.
Why companies patent.... (Score:2)
The response was swift... Motorola looked in their own collection of patents to see what Hayes probably infringed....
To paraphrase, the response started with "You use wire, don't you?"
Wait a second... software patents... (Score:2)
We’re actually supposed to read those?
But this is Slashdot. We don’t even read TFA.
Invalidity _can_ work (Score:2, Informative)
I think he's wrong equivocating the invalidity defense with the prior art defense. My understanding is a patent can be invalidated - and rendered completely ineffective - if you can show that it doesn't actually teach a practicable implementation of a way to achieve the claims.
I had experience with this. We received a cease and desist letter from a (large) company saying we were infringing a patent they had claiming synchronizing audio playback with the movement of a cursor. After carefully reading the d
What's the societal interest in patents? (Score:2)
Article 1, section 8, clause 8, reads, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
It does NOT read "to make money for the creators for themselves and their families in perpertua".
Furthermore, esp. in software, where something may easily be obsolescent in five years, to grant a patent that lasts 17 is to *not* promote the progress of science", but rather to restrict it.
But we've
I see nobody read the article. (Score:2)
The link in the Slashdot "article" isn't valid. No one seems to have noticed this. No, they just blither away in ignorance.
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That’s funny, because it works for me. Maybe your internets are clogged.
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Trademarks are very different from Patents.
What you describe is a Trademark infringement.
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Has Tridgell patented, the techniques to defend patent attacks? Or is this going to be a prior-art for a later patent?
Ah yes... a variation of the obligatory I just patented [google.com] comment. Truly a staple of the many tired, used Slashdot memes for every patent story.
Re:I choose to publish my "inventions" at Usenet n (Score:4, Interesting)
You could have at least read the summary:
Next one, prior art: [...] Basically the argument is: somebody else did that before. It's a very, very tricky argument to get right. Extremely tricky, and it is the most common argument bandied about in the free software community. And if you see it in the primary defence against a patent, you should cringe because it is an extremely unsafe way of doing things.'
The reason why prior art is difficult to get right is explained in TFA: a patent consists of a number of (likely very long and complicated) interdependent claims which are likely to be interpreted quite narrowly. In order to work, a prior art defence has to exist for each and every one of those claims in the same interpretation as that intended when the patent was granted. So you have to go through the entire patent from beginning to end, look at each claim and think "Is there prior art for this? Is the prior art exactly the same idea or is it just roughly the same sort of thing? If the latter, that's a Very Bad Thing for the defence".
However, it's quite common for the patent to hinge on a handful of claims and if you can prove that you don't do just one of the independent claims, you're free.
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The reason prior art is risky is because it's an affirmative defense that the defendant, not the plaintiff, bears the burden of proof for.
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So, would an infringer have to infringe on all of those claims as narrowly interpreted? If so, it seems like one could avoid patents by making some trivial changes to the code.
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OIN
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This post reminds me of an idea I had recently. If patents are based on the idea that this is a new invention, something that is novel, but they are also contingent upon their not being "prior art," then why not just create the "prior art of everything"? What do I mean? I'm not a programmer, but from what little I know about programming, I'm guessing a programmer could relatively easily grab an electronic dictionary and using the logic in the article linked to in this post, wordscramble every noun with every adjective in the dictionary to create the prior art of everything. For example:
Claim 1) A [noun] consisting of:
* a [adjective] [noun],
* with [adjective] [noun] [noun]
You then use software to fill in the blanks with every possible word option:
Claim 1) A [computer] consisting of:
* a [grumpy] [fish],
* with [cloudy] [metal] [socks]
Run all of these permutations through, post them online with a time stamp and under the GPL code, et voila, the prior art of everything! Wait a year and a day and you can now claim every software patent is worthless because there is "prior art" - and all you have to do is reference the website that has the "prior art of everything." Hell, that should be the website: "priorartofeverything.com"
Then, whenever anyone files a software patent, point to "priorartofeverything.com" and say, "Nope. Someone already had that idea."
The end of software patents....
Nope, because no one actually had the idea. I can say "I claim a system for travelling backwards through time, the system comprising: (a) a perpetual motion machine that provides power to (b) an interstellar warp drive capable of exceeding light speed," but I haven't actually invented anything yet. I've just said some words, but someone reading that wouldn't say, "oh, I see, yes, you simply build your perpetual motion machine and warp drive and put them together!" It's not prior art because it doesn't teach
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Patent filings used to require a working copy of the device to be patented.
Since that restriction was removed many patents, including software patents, are really nothing more than ideas that may or may not actually work. I would not be surprised to see perpetual motion machines in the post-working model era of patents.
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Patent filings used to require a working copy of the device to be patented.
Since that restriction was removed many patents, including software patents, are really nothing more than ideas that may or may not actually work. I would not be surprised to see perpetual motion machines in the post-working model era of patents.
[Citation needed]
Patent applications still have to describe something that works. Otherwise, they're rejected under 35 USC 101.
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They are required to describe something that works, but the requirement to demonstrate in an unambiguous way to the patent examiner a working implementation of the patented process or device was removed quite some time ago.
http://en.wikipedia.org/wiki/Patent_model [wikipedia.org]
Here's a nice anecdotal example of what can result: http://news.nationalgeographic.com/news/2005/11/1111_051111_junk_patent.html [nationalgeographic.com]
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They are required to describe something that works, but the requirement to demonstrate in an unambiguous way to the patent examiner a working implementation of the patented process or device was removed quite some time ago. http://en.wikipedia.org/wiki/Patent_model [wikipedia.org]
No, I know that. I'm a patent agent, actually.
My point was that they still have provide a written description that describes how to build and use a working invention, and if the Examiner says "I don't believe this works," the Applicant has to provide evidence it does. That said...
Here's a nice anecdotal example of what can result: http://news.nationalgeographic.com/news/2005/11/1111_051111_junk_patent.html [nationalgeographic.com]
The USPTO actually has an incentive for allowing these... They get to collect issue fees and annuities, and they're not concerned about it ever being enforced, because someone would have to build a working one in order infringe t
Re:Why not just prior art everything? (Score:4, Insightful)
It is an example of a patent that is nothing more than pretty words that was not rejected in accordance with the patent code.
There is no proof, not even any viable evidence, that the described "invention" would function in any way at all, let alone that it would satisfy the claims made in the patent. We aren't even talking Marketability, we are talking "It just can't work".
If this sort of patent is being issued regularly by the patent office for the sake of collecting issuance fees, that would seem to indicate that the patent office itself is in habitual violation of the patent code for economic benefit.
In simpler days we would call such actions "corrupt".