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Tridgell Recommends Reading Software Patents 173

Posted by timothy
from the you-may-read-the-article dept.
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."
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Tridgell Recommends Reading Software Patents

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  • Stupid System (Score:2, Interesting)

    by Anonymous Coward on Wednesday March 24, 2010 @02:51AM (#31594636)
    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?
  • by Anonymous Coward on Wednesday March 24, 2010 @03:33AM (#31594784)

    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 own. If the free software bunch has to develop new unpatented methods to accomplish their goals, well the system worked, bravo.

    That way I can write code just like you write anything else; without looking over your shoulder.

    It sounds like you want complete freedom to give away anything you want for any price. Why shouldn't it be protected so a market can form? Our patent system needs to be less burdensome, not nonexistent.

  • Has he patented it? (Score:1, Interesting)

    by nikanth (1066242) on Wednesday March 24, 2010 @04:03AM (#31594888)
    Has Tridgell patented, the techniques to defend patent attacks? Or is this going to be a prior-art for a later patent?
  • Bah Humbug (Score:4, Interesting)

    by baadfood (690464) on Wednesday March 24, 2010 @05:24AM (#31595028)

    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".
     

  • Risk of large costs (Score:3, Interesting)

    by AliasMarlowe (1042386) on Wednesday March 24, 2010 @05:32AM (#31595062) Journal
    He made some assertions whose validity is questionable for small companies, and which are generally false for larger companies with deep pockets.

    '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 of millions in damages is not fatal to large companies, but the risk of such a cost is definitely a risk to be minimized.

    If it gets three lots of damages for patent infringement, what happens to the project? It's still dead.

    Not necessarily, if the product has already been released, and the project to create it has already been completed. But the court's interpretation of a patent is often baffling to an engineer, who cannot therefore assess whether a risk of infringement really exists. However, by being aware of the patent, the potential cost of an infringement is tripled. This is why large corporations do not encourage their developers to do exhaustive patent searches.

  • by jimicus (737525) on Wednesday March 24, 2010 @05:33AM (#31595068)

    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.

  • by Anonymous Coward on Wednesday March 24, 2010 @05:40AM (#31595102)

    The union goes around aquiring as many patents up as possible, and agrees to use the patent portfolio to help defend any of its members who are threatened with patent legal action. All members agree to not to sue each other. Maybe a fee is required to join, or patent donations. Maybe a cross between insurance and a union. If it gets powerful enough, it could make patents irrelevant. ... or are people already trying to do this

  • by rcragun (1042604) on Wednesday March 24, 2010 @07:58AM (#31595838) Homepage
    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....

  • by Improv (2467) <pgunn@dachte.org> on Wednesday March 24, 2010 @09:19AM (#31596578) Homepage Journal

    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.

  • Re:Hidden costs (Score:5, Interesting)

    by radtea (464814) on Wednesday March 24, 2010 @09:23AM (#31596626)

    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".

IF I HAD A MINE SHAFT, I don't think I would just abandon it. There's got to be a better way. -- Jack Handley, The New Mexican, 1988.

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