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Editorial Patents

Patent Pools and Pledges - Panacea or Placebo? 126

Posted by Roblimo from the keep-your-friends-close-and-your-enemies-closer dept.
Commentary by Florian Mueller - Last year, a lot of noise was made by OSRM, the city of Munich, and Steve Ballmer about the risk posed to open source by software patents. This year, we've seen a variety of initiatives by companies that "donated" patents to "protect" open source, and organizations like the OSDL and the Open Invention Network now try to pool such patent pledges.

I've been wary of those patent pledges and pools from the beginning. There's an awful lot of dishonesty in these all-too-obvious attempts to curry favor with the community and reassure customers. While the jury is still out on some of those projects, none of them has so far delivered a single compelling reason for me to believe that they're really going to be more than a placebo. Some make it sound like these pools are a bulletproof vest for open source, but it's more like you have a coin in your pocket and hope that a bullet will be deflected by it. Too bad the coin isn't even in a place where someone would usually shoot you.

While I do agree that open source should protect itself as best as possible within the legal framework that exists, cheap PR plays are not a substitute for a real solution. The pledges that I've seen so far had all sorts of shortcomings:

- Some pledged patents are of little or no value. Among IBM's 500 patents "contributed" in January, there were some that had nothing to do withsoftware, and many were up for renewal soon, with no guarantee that they'd actually be renewed.

- The pledges typically just relate to particular open source licenses (sometimes rarely-used ones) or projects, such as the Linux kernel (which is only a small part of a standard Linux configuration).

- Some pledges are revocable or haveloopholes such as vague conditions under which the patent holder can sue you anyhow.

- So far the quantities of patents involved have been negligible compared to the total number of issued software patents, and even to the number held by the "generous donors." Even in the long run, there'll be hundreds of thousands of software patents in the world that aren't subject to any pledge. In his speeches, Richard Stallman likens software patents to mines in a park: If there are 90,000 mines in the park instead of 100,000, it's still far from being a safe place to walk.

Even if you don't look the gift-horse in the mouth, there are fundamental problems that even the best pledges can't solve:

- You can't practically go about your programming job by always looking up a patent pledge database whether it contains just the algorithms you need. I don't think any programmer would seriously do that! And even if algorithms A and B are covered by patents in a pool, there may be a patent C that covers your particular combination of A and B, and that patent C may not be in the pool.

- Pledges which exclusively relate to open source aren't too valuable. Software under the BSD license is used in closed-source projects all the time. A project like PostgreSQL, which already felt forced to replace a caching algorithm due to an IBM patent, couldn't just base its development decisions on open source considerations alone. Then there are dual-licensing models for GPL software (MySQL is a well-known example) and companies that sell closed source software to finance their open source development efforts.

- These pledges are only made by organizations that don't intend to sue open source projects anyway. Patent holders who are potentially hostile, be it for strategic or purely financial motivations, won't pledge anything. It's nice to firm up the commitment of your allies not to act against you, but it doesn't reduce the number of enemies.

- If a company promises not to sue open source projects over a certain set of patents, it still doesn't mean that those patents can be used by open source projects for retaliatory purposes. However, the patent game is one of mutually assured destruction, like in the Cold War. If NATO hadn't had a single nuclear weapon, and the Soviet Union had promised not to use something like 5% of its nuclear arsenal, then we probably wouldn't live in freedom now.

- Companies usually can't even make their patents available for the purpose of building a counterthreat because those patents are already subject to existing cross-licensing agreements. If a new entity (such as the Open Invention Network) started acquiring unencumbered patents, then one day they might be able to grant a license to a company like Microsoft in exchange for a covenant not to sue Linux with its own patents. That could indeed make a major difference (even if only for Linux), yet it wouldn't help against trolls that have no products of their own. And a strategic aggressor could secretly arrange for such a troll to do the job.

No matter how you look at it, the only way to reliably solve the problem is at the political level: through legislation that excludes pure program logic from the scope of patentable subject matter. Sure, there's no shortage of people out there who say this can't be done, but they're all wrong. We've been toldmany times that the European software patent directive would come one way or the other -- until we got the European Parliament to reject it by a landslide of 648-32. The German Bundestag and Spanish Senado unanimously backed our central demands. The new German government has just vowed to counter, at the international level, "the trend to seal off markets, among other things by means of patent law." The time is ripe for legislative action.

Some members of the legal profession claim that software patents are an unalterable fate because theyhave a vested interest in sustaining the system. It's a tall order, but definitely possible, to change the legislative framework in our favor. In every parliamentary democracy.

Especially in the field of software, the patent regime no longer serves the public interest. In a perfect democracy, software patents would already be history. In the suboptimal democracies in which we live, there are special interests that oppose changes. Those have influence and deep pockets, but at the end of the day the most valuable currency in politics is voter popularity.

If all the companies who have pledged patents to open source, or who have contributed to those pools, decided to seriously campaign for legislation that abolishes software patents, then the problem could be solved for good. As long as they don't do that, they're not for real. Some may even have a hidden agenda of creating patent pools to gain effective control over the open source universe. We've got to watch out.

Florian founded the NoSoftwarePatents.com campaign. For his political efforts against software patents, he has been named as one of the "top 50 most influential people in intellectual property" according to Managing Intellectual Property magazine and is a candidate for the title of European of the Year.

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Patent Pools and Pledges - Panacea or Placebo? More

Patent Pools and Pledges - Panacea or Placebo?

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  • my brain...

  • Won't touch it - too much "P" in the headline (Score:5, Funny)

    by xxxJonBoyxxx ( 565205 ) on Tuesday November 15, 2005 @12:51PM (#14036235)
    Won't touch it - too much "P" in the headline

  • Accurate Aliteration, Absolutely (Score:5, Interesting)

    by saskboy ( 600063 ) on Tuesday November 15, 2005 @12:54PM (#14036264) Homepage Journal
    "However, the patent game is one of mutually assured destruction, like in the Cold War. If NATO hadn't had a single nuclear weapon, and the Soviet Union had promised not to use something like 5% of its nuclear arsenal, then we probably wouldn't live in freedom now."

    The topic title taught us terminology.

    Patent MAD seems like the only way to get to be a big company these days. With the dot com boom over, what else could possibly take a small company and make it competitive with a giant like ebay.com? Skype got bought out by who else? Ebay.com

    A giant like eBay with their mountains of patented software stands to make a fortune every time someone else tries to write some of their own software to sell something on the Internet.

    • Re:Accurate Aliteration, Absolutely (Score:4, Insightful)

      by smittyoneeach ( 243267 ) * on Tuesday November 15, 2005 @01:05PM (#14036358) Homepage Journal
      A giant like eBay with their mountains of patented software stands to make a fortune every time someone else tries to write some of their own software to sell something on the Internet.
      But but but...I thought that patents were about protecting the little someone else, so that we could continue to innovate?
      Or is it all about wealth transfer from the innovators to the bureaucratic/legal ecology that has sprung up around software patents.? One is tempted to cynicism.
      • Patents are about having the confidence to share your methods and ideas while still being able to profit off them. Without patents, you choose between either publishing your ideas OR making money. Patents allow both. But since money usually rules such decisions, without software patents you'll tend to get a lot of secretive inventions and methods, and less overall innovation because people can't build on each others' work. They are inherently litigation-prone, since only the court determines whether a c
        • But since money usually rules such decisions, without software patents you'll tend to get a lot of secretive inventions and methods, and less overall innovation because people can't build on each others' work.

          Total bullshit! If the idea is implemented in a product, you cann't hide it anymore. However you can protect it by patent, thus barring anyone the possibility to build on your work. (Or event just repeat your work).
        • Solomon's observation 'there is nothing new under the sun' never hit any harder than with software patents.
          For languages, we have Algol, Lisp, and a bazillion variations on the theme.
          After packet-switched networks, let's see, there are a bazillion variations on the them of 'protocol'.
          This 'software patent' nonsense is 100% pure belief system. I shall as soon become a 5-point Calvinist as believe that Bezos actually led any innovation other than 'creative mindfscking' with his One Click Shopping.
          As mugg
    • "Patent MAD seems like the only way to get to be a big company these days. With the dot com boom over, what else could possibly take a small company and make it competitive with a giant like ebay.com?" Maybe someone should be selling 'accidental patent violation' insurance to small companys? The small company wins, the insurer wins, and progress gets to live.

    • Re:Accurate Aliteration, Absolutely (Score:5, Interesting)

      by sterno ( 16320 ) on Tuesday November 15, 2005 @01:12PM (#14036418) Homepage
      "However, the patent game is one of mutually assured destruction, like in the Cold War. If NATO hadn't had a single nuclear weapon, and the Soviet Union had promised not to use something like 5% of its nuclear arsenal, then we probably wouldn't live in freedom now."

      Interestingly, the patent world is evoling in a manner similar to the geopolitical one. Patents, historically, have been about detente and mutually assured destruction. Big companies would use the patents to wield power in the market, negotiating cross-licensing with eachother, and keeping their grip on the market place. The super powers in stalemate.

      But today you've got the patent equivalent of Al Qaedas. People with single patents or small patent portfolios who contribute no product and base their entire business plan on lawsuits and licensing. Having a mass arsenal of patents does you no good against these companies because they don't make anything that you could sue them for. Small companies that legitimately want to make products are stomped by the big guns and the big guns are held ransom by law firms in IT clothing. This leads to an overall decline in innovation.

      The patent system is in need of a drastic overhaul. My thoughts:

      1) Require that patents only be able to extract license fees equivalent to a simple formula:

          R&D Cost + Legal Fees * 20%

      Perhaps add some interest equation in there, but my point is this. If you want to research something, you'll be guaranteed licensing to cover your costs. If you have to sue to get compensation, that will be covered. Then you'll be guaranteed a profit margin of 20%. Once you've recouped the money, the patented item becomes publicly available.

      2) Vastly increase the hurdles to getting and maintaining a patent. This would include exponentially increasing fees per year to maintain a patent (proceeds from this being directed back into the patent office to afford better review of the patent applications).
      • #1 is good, but #2 is problematic -- it shifts the 'power to patent' further in favor of the large corporation and further away from the small startup or independent inventor.

        There are some really good reforms that could take place, short of giving up the goal of abolishing the patent system altogether. A list of a few is given at this post on China's entry into tighter patent law [blogspot.com]. My favorite? The Independent Invention Defense [blogspot.com].

      • Or require that the patented technology be implimented in a product available from the patent holder. This would prevent trolls from making money off their portfolios alone. Patents should only protect those who are putting themselves at legitimate risk to bring a product to market and who need some guarantee of return on investment.
      • Patents are already too expensive for the people they're meant to benefit -- individuals and small companies. Making them more expensive won't help anything. Patents should be cheaper, but harder to get. You absolutely should be able to provide a working copy, and it should actually be non-obvious.

        What about a system where you file a provisional patent application (basically saying hey, I've got this idea... remember, it's mine), then you publish a paper in a peer reviewed journal. Once that happens, th
      • But today you've got the patent equivalent of Al Qaedas. People with single patents or small patent portfolios who contribute no product and base their entire business plan on lawsuits and licensing. Having a mass arsenal of patents does you no good against these companies because they don't make anything that you could sue them for.

        IANAL....

        Yet, it seems to me that every case I have seen of this has eventually resulted in the demise of the companies whose primary products are lawsuits. Sure often you win
      • The duty of making a working model will cut 99% of the patent crap out there, nowadays people get away with patenting ideas instead of working applications.
        • How hard is it to make a working model of a one-click order?

          This is why I think you need to have some tie between the effort required to develop a patent and the royalties you can achieve.

      • [...] exponentially increasing fees per year to maintain a patent (proceeds from this being directed back into the patent office to afford better review of the patent applications)

        I agree that that idea may appear at first sight to be helpful in raising the quality of patents, but in real life it has the exact opposite effect. And what is worse, it has already been implemented.

        Nowadays most patent offices around the world are already "self funded", so the fees do already go back to the patent office.

        • Well, on the one hand, structuring fees this way rather than collecting everything up front does tend to encourage more filing by lowering the price to enter the game, but, on the other hand, if an issued patent is not "paying off" there is an incentive to let the patent lapse before it's full term is completed. In the US, the concept of maintenance fees was introduced sometime in the 1980's. I don't know what the statistics are concerning how many patents have laspsed, so far, for failure to pay maintenanc
      • 2) Vastly increase the hurdles to getting and maintaining a patent. This would include exponentially increasing fees per year to maintain a patent (proceeds from this being directed back into the patent office to afford better review of the patent applications).

        How does this help the current situation? Wouldn't this just serve to price the "little guy" out of the patent market entirely, leaving patents solely in the hands of the likes of Amazon.com et al?
      • 1) This creates a tremendous incentive for companies to lie about how much their R&D cost them. Every dollar they can fake on paper is another dollar they get from their monopoly. If it's a big enough number, they'll make more than they would have under the current 20-year system. And big companies will spend $200k on a court case if it gets them an extra $10m in covered 'costs'.

        2) Throwing more money at a problem does not solve it. With due respect to the PTO, giving more money to patent examiners d

  • I Think It's the PR Value (Score:4, Insightful)

    by Mateo_LeFou ( 859634 ) on Tuesday November 15, 2005 @12:56PM (#14036282) Homepage
    Not to say it's a PR "stunt" or "trick", but it makes certain vendors conspicuous by their absence from these groups. If you've got a town where there's a big organization pledging to protect the environment, but the biggest company in the town isn't signing on, it leaves an impression.

  • The real problem is: (Score:1, Redundant)

    by RandoX ( 828285 )
    Companies usually can't even make their patents available for the purpose of building a counterthreat because those patents are already subject to existing cross-licensing agreements. If a new entity (such as the Open Invention Network) started acquiring unencumbered patents, then one day they might be able to grant a license to a company like Microsoft in exchange for a covenant not to sue Linux with its own patents. That could indeed make a major difference (even if only for Linux), yet it wouldn't help a

  • Competition and Collaboration (Score:5, Insightful)

    by under_score ( 65824 ) <mishkin@berteig. c o m> on Tuesday November 15, 2005 @01:03PM (#14036345) Homepage
    The problems with intellectual property of all sorts (copyrights, patents, trade marks, service marks) stem from a fundamental belief that competition is the most efficient mechanism for progress. This belief means that government's role is to protect players from excessive competition by granting intellectual property monopolies. Unfortunately, this has the side effect of strengthening the cultural forces against collaboration. Open source software development, which is fundamentally a collaborative model (collaborate to build code, collaborate to share code, etc.), is showing that such a model can be successful. However, given the competitive intellectual property culture, open source models are extremely vulnerable. My thought: over the course of the next few decades, the software world will become a proving ground to demonstrate that collaborative economic models are superior to competitive economic models. However, the vested interests in the competitive model will only very slowly come around to embracing the collaborative model.

    • The problems with intellectual property of all sorts (copyrights, patents, trade marks, service marks) stem from a fundamental belief that competition is the most efficient mechanism for progress. This belief means that government's role is to protect players from excessive competition by granting intellectual property monopolies.

      Um, say what? I don't see how this follows at all. Ask the nearest libertarian, and the odds are he'll tell you that patents have no place in a truely free capitalist economy.

      • You're right. From a libertarian or objectivist view that is true. However, I didn't say anything about capitalism. I was referring to competition and the two are not the same thing. Government is there to protect people from excesses of competition. A very simple example of this is someone who wishes to win no matter the cost to others and decides to try to kill their competitors. Government establishes laws, procedures and policing to, as much as possible, prevent this sort of excessive competitive

        • I think you're assigning a bit too much meaning into the concept of economic competition; in a free-market competetive capitalist system, killing your competitors would most definitely be regarded as anti-competetive from a market point of view. A free market government would be obliged to prevent such anti-competetive behaviour to protect the market, even from a strict economic point of view.

          "However, our culture is so heavily geared towards competition"

          I'd say our culture is so heavily geared towards _win

    • Re:Competition and Collaboration (Score:1, Interesting)

      by Anonymous Coward
      I don't think it's caused by faith in competition, at least not in the traditional capitalist sense of producing something valuable for the lowest price. It's more like a lack of faith in this competition. The patent system discourages real competition, granting monopolies on production.

      In this system, the successful corporation will be the one that most deftly competes for the government's protection -- not the one that most deftly competes to create the best product.

      I think that real competition (for pr

  • fire with fire (Score:3, Interesting)

    by Douglas Simmons ( 628988 ) on Tuesday November 15, 2005 @01:04PM (#14036350) Homepage
    If your company gets sued because someone successfuly patented the double click which is used in your Linux servers, because the patent is so friggin' ridiculous, couldn't you sue the patent office? Take contracts, for example: If you were running a jetskiing operation and you had people sign a ten page fine print agreement basically saying not to sue for any reason, and for kicks you removed the throttle spring so they can't slow down (not using any bomb like in that movie), contracts may not hold up. And I'm not talking just contracts that include something illegal to be entirely void, just contracts that cross the line of reality a bit too far. Apply that to patents, and you got a viable case. Right? Any precedents one way or the other?
    • IANAL, but wouldn't there be a problem concerning the definition of what is ridiculous or not?

      I say this, because wouldn't any court consider a patent office the highest authority of the land on patents? Therefore, from the court's perspective, if the patent office believes that the patent is fair, who are you to argue?
      • Therefore, from the court's perspective, if the patent office believes that the patent is fair, who are you to argue?

        Expert Witnesses with boatloads of credentials (e.g. PHDs in triplicate) can easily stack the odds far higher than the decision made by a patent office clerk. (Who probably holds only a masters, and not even in the specific field in question.)

        The only sad part is that you actually need such heavy ammo for something that should be blindingly obvious. Unfortunately, justice is blind for a reaso
    • your question: Can you sue the government? Are there any precedents? the answer: Yes and yes the rambling douche: You
    • IAANAL, but, in brief, I don't think so. The general principle, at least for the US Federal Government (and all state governments, for that matter) is the legal concept of Sovereign Immunity [wikipedia.org]; the Government can only let others sue it under grounds and for reasons provided by law.

      In the case of the PTO, AFAIK, it it is not possible for a party to sue the Government for damages arising from a patent infringement suit, or a threat of a suit by other parties. It's sort of similar to the fact that a litigant
  • Always avoid alliteration. Artificial amateurs aren't at all amazing.
  • Just me wondering, how well do patents work in general?

    FT...A...C[ommentary]: "And even if algorithms A and B are covered by patents in a pool, there may be a patent C that covers your particular combination of A and B, and that patent C may not be in the pool."

    1) Wouldn't prior art mean that C isn't legal unless the person/company holds patents A and B (in other words, couldn't patent holders A (inclusive) or B go after patent holder C for infringment?)

    2) In closed source, how can it be determined (legally

    • Re:about that... (Score:3, Insightful)

      by Greger47 ( 516305 )
      1) Wouldn't prior art mean that C isn't legal unless the person/company holds patents A and B (in other words, couldn't patent holders A (inclusive) or B go after patent holder C for infringment?)
      No, the patent itself it not infringement. But the inventor of C can't make use his invention without getting a license for patents A and B first.
      • Exactly. The patent grant is a right to exclude others; it confers no inherent right to make, use and sell the invention claimed in the patent to the patentee.

        A common scenario is: A gets a patent for foo, not coevered by any preexisting patent; B subsequently gets a patent for foobar, where foobbar is covered by A's claims; B can't make sell or use foobar without cutting a deal with A. On the other hand, A can't make use or sell foobar without cutting a deal with B, although A can make sell or use an impro

    • Re:about that... (Score:5, Interesting)

      by arkanes ( 521690 ) <arkanes&gmail,com> on Tuesday November 15, 2005 @01:32PM (#14036588) Homepage
      1) Wouldn't prior art mean that C isn't legal unless the person/company holds patents A and B (in other words, couldn't patent holders A (inclusive) or B go after patent holder C for infringment?)

      No, you can patent innovations that derive from other patents, including combinations.

      2) In closed source, how can it be determined (legally) that someone is infringing on another's patented algorithm?

      (Software) patents cover behaviors, not just implementations. If your patent covers a method of embedding data in documents, you can generally tell from the applications behavior if it infringes - at least enought to start a lawsuit and begin discovery.

      That being said, I don't know a thing about patents, and they kinda scare me (I picture a patent-boogeyman when I think about it) or is that what they are supposed to do?

      Pretty much, yeah.

      My quick & dirty solution to our patent troubles:

      1. Shorten the terms. You get 5 years for free, and you pay logarithmically increasing fees after that. By holding a patent, you're withholding knowldge from the public good, and that should be taxable.
      2. Mandatory licensing. A patent is there to encourage you to profit off your invention, to make it more likely that you will produce things based on it and thus benefit the public good. If you can't make a usefull product based off your license, then someone else can. This has the side effect of removing patent MAD.
      3. Require implementation. You don't have to do it when you file - it can be in the "patent pending" phase - but when that time is up you either need a practical implementation or you lose your patent. Speculative patents are stupid.
      4. Reduce burden of proof to legally challenge a patent - the patent office is clearly not capable of fully validation patents, so the legal presumption that it is needs to be removed.
      5. Independent invention should be de-facto evidence of obviousness and the burden should be on the patent holder to demonstrate it's non-obviousness. If the patent is still ruled non-obvious, the independent inventor gets a reduce rate on the mandatory license fee.
      6. Increase the number of challenges to patent validity based on form. A person "skilled in the art" should be able to accurately re-create a patent soley from the patent application. Expert testimony to the contrary should be a major blow against the validity of a patent.
      7. Patent protection cannot be claimed on something that would be wholy protected by other IP law. No storyline patents, because any implementation of your storyline would be protected by copyright. Most software patents go away for the same reason. Patented hardware that required software to run is still okay, because the copyright covers the software and hardware covers the innovation in hardware. This would still allow some business and process patents.

  • The points that are most valuable (IMHO):

    • "Some pledged patents are of little or no value." Right. Primarily, IBM (and others) gain some PR joy by releasing these patents either shortly before they expire, or namelessly in a group so the statistic (more than 500!) sounds better.
      .
    • "So far the quantities of patents involved have been negligible compared to the total number of issued software patents, and even to the number held by the "generous donors." ...Richard Stallman likens software patents to mines i
    • The real question is, how do you reward software ingenuity and creativity if you cannot patent something?
      You answered your own question:
      That's somewhat meaningless in the OSS community, where fame/notoriety/goodwill may be more important.
      Software patents are harmful because MORE ingenuity and creativity happens WITHOUT them!
    • The real question is, how do you reward software ingenuity and creativity if you cannot patent something? Is it enough to make money?

      Perhaps this question would be better directed to Corel, Adobe, Apple, Microsoft, or any other entity that has been very well rewarded for its ingenuity and creativity with respect to software. Did patents get them where they are? This is precisely why this patent circus is so rediculous - the current success of various companies isn't even based on patents that protect their

  • That's quite a statement (Score:3, Interesting)

    by LaughingCoder ( 914424 ) on Tuesday November 15, 2005 @01:09PM (#14036391)
    In a perfect democracy, software patents would already be history.

    What could be the reasoning behind this statement? If a perfect democracy means that the issue would be put up to a vote, with the majority opinion carrying the day, I'm not quite as sure as you that software patents would be history. Consider all those people who have a vested interest in maintaining the status quo - we know how they would vote. Now consider the software developers themselves (a tiny demographic) - I would guess that most would vote to abolish software patents, but some (maybe even many) would vote to keep them in place (after all, they write code and may not want others to use it freely). That leaves the big blob of people who know nothing about the issue. How would they vote? I would suggest they would be easily swayed by "campaign" advertising. Now, who has the money to run the campaign - the ones with the vested interest or the software developers?

    Now perhaps you believe that a perfect democracy does not leave room for campaigning or advertising to sway opinions. If that were the case, given the large unwashed mass's lack of understanding of the issue one would have to assume their vote would split 50/50. So, in the end I don't see a perfect democracy changing anything.
    • ...relates to a representative democracy, which is how most Western democracies work, for the most part (there are exceptions like the cantons of Switzerland). Some of what you say refers to a referendum, and that would be direct democracy.

      In a representative democracy, the elected representatives of the people should represent the interests of their electorate. On a specialized issue such as IP policy, that would include conclusions from the results of independent research [researchoninnovation.org] as well as listening to a repre

  • I hope software patents stay around for a while, in the USA that is, simply for the fine job they are doing in discrediting the entire concept of patents. A few more years of this madness and it will be ripe for abolition.

  • Public Patents (Score:4, Interesting)

    by Doc Ruby ( 173196 ) on Tuesday November 15, 2005 @01:10PM (#14036400) Homepage Journal
    Seems to me that a patent pool that accepts patents under a license obligating the pool not to enforce the patent, and offering anyone a free, unrestricted license to use the patent, is harmless. It's also indistinguishable from "public domain" in operation, but has the valuable bonus of an interested party which can actively fight others who try to privatize the patented IP. The public domain is a great legal principle, but the economics fail to protect the public - "tragedy of the commons".

    Funding the "public patent" pool is a challenge, but a sufficiently diversified and pushy pool with lots of profitable licenses can probably pressure "association members" for enough money to operate. Or sell "value added services", like IP legal advice and "IP market info", like licensing activity. Maybe just a virtual organization, cheap in normal operation, that pulls dues from licensees only when they vote to challenge a rival IP claim to their free patent. If legal, possibly after the fact, when someone licenses a patent that had meanwhile been conflicted by a new, private patent. The economics of that operation might see a "reverse claim jumping" industry, where people spot unlicensed public patents in conflict with newer private patents. They license the public patent, then fund the suit against the private rival, which seizes the private income for the pool, compensating the new public licensee.

    The power of this way of thinking, a real libertarian method for fighting private IP hoarders, offers a lot of new operations in the public interest, entirely consistent with private capitalism, while excluding monopolism. Let the good times roll!
    • "Seems to me that a patent pool that accepts patents under a license obligating the pool not to enforce the patent, and offering anyone a free, unrestricted license to use the patent, is harmless. "

      In fact it means that the patent system makes no sense because the situation pre-patent system is regenerated. So all these patents pooled just account for transaction costs.

      The principle of grace.
    • It's also indistinguishable from "public domain" in operation, but has the valuable bonus of an interested party which can actively fight others who try to privatize the patented IP.

      How is an "interested party" the bonus? Why can't the public domain have interested parties?

      Surely the bonus is simply that if someone else comes along and tries to get a patent, or does in fact get a patent, you can challenge their act with a straightforward legal force (without having to build a prior art case), because you a
      • Because the public domain doesn't have sufficient interested parties. This isn't a theoretical legal or political discussion. This is a specific strategy discussion on how best to protect our rights. I'd like a "benevolent dictator", a "philosopher king", but I'm not waiting on one. Patents protect a holder's right to use the invention, and prohibit others from doing so. The right to use is extremely important, and threatened in a patent vacuum. The prohibition is usually abused in our current system. So an
        • How does a person go from being a disinterested contributor to the public domain to being an interested party with a patent? The interest has to come first. Motivation leads to action. So would-be patent holders are already interested parties. Just because you protest that this "isn't a theoretical legal or political discussion" doesn't mean that you can just post any old crap without thinking and claim it's right.

          The legal effect of the patent is the "bonus" of obtaining a patent. The interest of the "inte
          • No, the "interest" is the practical interest, the stake held. It's not an emotional attitude. That's what I mean by "this is a specific strategy discussion on how best to protect our rights", the very next sentence. What's the point of selectively quoting me back to myself, and calling my perfectly reasonable post "crap", when the only crap is your attempt to deny my simple, clear explanation? If you think all that is at work in intellectual property is one's mental "interest", then it it you who is posting
            • But it's not having something "at stake" that matters! It's being able to do something to protect that stake, i.e. wielding the legal power of the patent.

              That's why I said it's not the "interest" that counts, it's the patent's legal effect!

              Your argument is that a patent holder's interest or stake is the significant factor. It's not! The significant factor is that the patent holder can do something about transgressions, with weight of law.

              As for the rest of your post:

              The public domain is a great legal princi

  • This year, we've seen a variety of initiatives by companies that "donated" patents to "protect" open source, and organizations like the OSDL and the Open Invention Network now try to pool such patent pledges.

    Wouldn't it be more effective, then, to divert our focus away from spreading publicity for these pro-OSS patent groups, and to try to persuade these companies to release their patents into the public domain for all to use (or in the case where the corporation does not wish for commercial reuse of the

  • But it does bring the issue out for more open debate. Given the WIPO's attempts to dissuade public debate, that can't be a bad thing.

  • A solution to consider (Score:4, Interesting)

    by Teppy ( 105859 ) * on Tuesday November 15, 2005 @01:15PM (#14036443) Homepage
    What about adding a clause like this to both LGPL 3 and GPL 3:

    By using this software you agree never to initiate a software patent lawsuit against any person or company. If you do initiate such a lawsuit, the license fee is $1M per year, retroactively, and you are defined as "aggressive". There is one exception to this rule: Anyone may initiate software patent lawsuits against others who are aggressive.

    This has the effect of even making life difficult for litigation companies: As more and more software includes at least LGPL code, over time they would have to run their companies without the use of software of any type.
    • I like this. Of course, as a coder, you are free to include this phrase on your own work. Let's start doing it; I will, from today.
    • The biggest problem with that is that the GNU GPL doesn't require you to agree to the license in order to use the software. You only have to agree to the license in order to copy, modify, or distribute the program. Why? Because that's all copyright applies to -- copying, modifying, and distributing. Copyright doesn't stop people from reading books -- it stops them from copying books, distributing copies, or distributing modified copies.
    • Ok, I don't really know for sure, but I think I've seen somewhere that there is a principle in law, based upon the constitutional right to due process, I believe, I'm not sure. Anyhow, the gist of it is, you can't sign away your constitutional rights. And, the right to sue is considered, I believe, a constitutional right. There are some exceptions, apparently - like the fairly standard 'arbitration' clauses, where you have to agree to that you will take grievances to an arbitrator of some sort.

      But in this c

      • you can't sign away your constitutional rights. And, the right to sue is considered, I believe, a constitutional right.

        But agreeing to this clause in the GPL wouldn't be signing away that right. You'd still have the right to sue, but there would simply be an additional cost if you chose to do it and had already agreed not to.

  • How would you sue an open source project for patent violation? Suppose there was patented code found in the kernel, who do the litigants go after? Linus? The author of the code?

    -Scott
  • I think some kind of patent pool is necessary, but I want to see it run by the open source types. We should have a foundation which patents methods used in open source software as they come out, then places them in a defensive pool like the ones the corporations use. The licence could be viral: use may use these patents in any project which is open-source, and if you grant the same licence to everyone to use all your software patents. It's a stopgap, but until we get the laws fixed, we need something to
  • SW patents do mean shit in China and in 15-20 years they will be dictating terms because they will have most of the wealth.

    All that needs to happen is for one critical app to be created in China that many corps want/need but couldn't create due to SW patents. When that app is sold/licensed/bartered around the world, all the SW patents in the world won't stop it.

    Don't believe me, look at the Blackberry Patent suit. In the US, even if RIM looses, the US government will still be *allowed* to buy and used black
  • This is a favorite topic on ./ and I agree, as most everyone does on the broad issues.

    But, I'm personally tired of the hand-wringing, rah-rah, something-must-be-done, generally lacking in any sort of content items like this. Here are some options:

    1. Slashdot makes a new category: Things most viewers agree on. You can put the Evil Empire, Linux is Great and Patents are Bad stories just like this one in this category. It will be a popular category.

    2. Do something. How about learning how to avoid patent en
    • The problem with patents is that it's a bit like project mayhem:
      "The first rule of project mayhem is: You do not ask any questions.
      The second rule of project mayhem is: You do not ask any questions."
      The simple act of knowing about a patent can be dangerous. Sad but true.
    • This is so true it is not even funny. These kind of stories bring out the know-it-all zealots who are in fact the know-nothing zealots. Simply put, I have never met a great many people more misinformed on an issue then the /. community is in regards to patents and patent law. Not only that but they are completely ignorant to the facts and not willing to have a true discussion on the topic and are more willing to spend countless ages writing posts that do nothing but say the system is broken...it doesn't
  • Let me provide you a couple of scenarios.

    Scenario one: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone pops up with a patent and says I have to pay royalties.

    Scenario two: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone else steals my idea for their own software and releases a competing product.

    Both of these scenarios are clearly wrong, but no patent plan thus far has dealt with any way to
    • Why not just enforce copyright laws?

    • "Scenario two: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone else steals my idea for their own software and releases a competing product."

      The concept that an idea can be "stolen" is quite unfortunate.

      To demonstrate, imagine if you will some sort of cosmic Patent law which prevented organisms from "stealing each others ideas" ... from cell division, to using tools. The universe would have never passed Go.

      Patent law is a purely artificial co

    • Scenario one: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone pops up with a patent and says I have to pay royalties.

      Scenario two: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone else steals my idea for their own software and releases a competing product.

      Both of these scenarios are clearly wrong, but no patent plan thus far has dealt with any way to prevent both cases. Overuse of sof

      • You forget the effect of copright in scenario two. Somebody else cannot simply steal your software, so they have to reverse engineer it and create their own software with your idea.
        At least in Europe, even reverse engineering is forbidden by copyright law, except for the purpose of making software interoperable with another product.

        • At least in Europe, even reverse engineering is forbidden by copyright law, except for the purpose of making software interoperable with another product.

          I don't think so.

          Of course the computer programs Directive (91/250/EEC) [eu.int] states reverse engineering for the purpose of making software interoperable as being explicitly allowed.

          But I know of no EU laws (or case law) forbidding reverse engineering of software, and I ought to know.

          In 2002, when the EU commission proposed the software patent directi

          • Of course the computer programs Directive (91/250/EEC) states reverse engineering for the purpose of making software interoperable as being explicitly allowed.

            But I know of no EU laws (or case law) forbidding reverse engineering of software, and I ought to know.

            The 91/250/EEC directive states that under certain conditions, a copyright holder cannot forbid reverse engineering. This implies that if those conditions are not met, the copyright holder can forbid it. And article 6.2 says:

            2.The provisions

            • It isn't correct to assume that 91/250/EEC implicitly forbids reverse engineering when the conditions of Article 6 are not met. Please note that Article 6 is stated in the negative: "The authorization of the rightholder shall not be required where [...]".

              The legal effect of this is that EU member states are not allowed to pass local laws that requires the authorization of the rightholder in the situation described in Article 6.

              Member states are technically still free to pass local laws forbidding revers

              • It isn't correct to assume that 91/250/EEC implicitly forbids reverse engineering when the conditions of Article 6 are not met.

                I meant it implies the rightholder can forbid reverse engineering. And afaik most EULA's do forbid that (although then you of course get in the discussion of the enforceability of EULA's). E.g. Microsoft's WinXP EULA [microsoft.com]:

                5. LIMITATION ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Product, except and only to the

    • Scenario one: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone pops up with a patent and says I have to pay royalties.

      Scenario two: I'm writing software. I come up with a brilliant idea and put it in my software. When I release it, someone else steals my idea for their own software and releases a competing product.

      You can't "steal" something which is no one's property. As of yet, even WIPO and WTO do not recognise "ideas" as someone's propert

  • ...thoughts typed out in code are not?
    You can copy each other's software and modify it as you please as long as you share the wealth / credit - but this is something that is inherently contradictory to hard-core capitalism. In a system where you have lawyers representing lawyers over who owns what and when, it is really hard to get around patents and the greed that inevetibly comes with them. (see http://www.thecorporation.com/ [thecorporation.com] or http://www.rottentomatoes.com/m/corporation/ [rottentomatoes.com]) Patent pools may only lead

  • "[...]the Linux kernel (which is only a small part of a standard Linux configuration)."

    ... the mind reels.

    Certainly, the Human brain is only a small part of a standard Human configuration.

    Kinda reminds me of a Jack Handy quote: "The face of a child can say it all, especially the mouth part of the face.

    • I'd be more inclined to compare an operating system kernel to the brainstem or spinal cord rather than the whole brain. Low-level functions and all that.

      • "I'd be more inclined to compare an operating system kernel to the brainstem or spinal cord rather than the whole brain. Low-level functions and all that."

        Linux is a monolithic kernel, not a micro-kernel.

  • It seems clear that patent pools are merely a sleight of hand performed by inevitably pro-patent organizations to gain the favor of the open source community.

    Yet I still can't grasp what exactly is wrong with software patents.

    Why should software companies be unallowed to protect their means and methods of innovation? Obvious patents are always wrong and unfortunately are granted every day. This is a major malfunction of the USPTO that must be addressed. However, the design of a large software system i

    • Re: (Score:3, Insightful)

      by account_deleted ( 4530225 )
      Comment removed based on user account deletion

      • Patents need to be thrown out. If we want to reward inventors using a "First to invent" scheme, let's do it fairly, and introduce competitions and bonuses for specific, named, inventions that are generally wanted. The X-Prize was a reasonable idea. An eighteen-year monopoly on space wouldn't be. Those who promote patents think the latter would be more legitimate, reasonable, and required, than the former.

        I agree with you that a "race" is helpful in generating innovation. But what did the X-Prize competit

    • Well, for one thing, software creators already have the protections of copyright. That is, really, a significant protection. Does it mean no one can clone your software without infringing? No, of course not.

      Fundamentally, patents protect that part of society which least needs protections. There are different kind of practical protections on software. There is a concept in economics, which applies here, called barriers to entry. That is, how difficult is it to enter a market?

      Consider any non-trivial piece of

      • But who do we see hold the majority of software patents? Large software companies. And so, the whole system is turned on it's head. Companies with a lot of resources, who can out-market (spending lots of money on ad campaigns, etc), out-lobby, and out-patent (patents are very expensive, and so only people with a lot of money to burn on patents can afford to get a lot of patents) most of the small and mid-size players.

        This is by far the most compelling argument against software patents. The only defense I

    • Yet I still can't grasp what exactly is wrong with software patents.

      If you believe the fundamental purpose of the patent system is to promote innovation for the advancement of society as a whole, then it should be obvious that not only does the current system not work, but it does the exact opposite. This is not unique to software patents, but they are one of the grosser examples, and started us down the slippery slope which has lead to business model patents and even storyline patents [plotpatents.com]

      If you think the

  • It's like wearing a Fireman's suit in a Fuel Air Explosives explosion.... It'll help, but you're far better off getting rid of (or at least defusing) the bomb.

    It doesn't change the fact that software patents (and, probably, most of the recent non software patents, as well) need to go the way of arbitrary search and siezure and star-chamber trials -- but it still helps.

  • The patent system is intrinsically unfair, and "wrong" (for some appropriate definition of "wrong" that does not mean "right"). It stimulates both unhealthy individual thought as well as destructice social and economic activity.

  • Please Go Away (Score:3, Interesting)

    by thebdj ( 768618 ) on Tuesday November 15, 2005 @03:02PM (#14037369) Journal
    This message is directed to Florian Mueller, hopefully a more reasonable individual then most the /. anti-patent zealots.
    Your comment about IBMs patents is borderline FUD. While some of the patents may have nothing to do with software, those that do and are up for "renewal" (in the US you just pay your maintenance fee at 3, 7, and 11 years post grant) are usually only renewed if the continued protection is sought. In this case, by turning over those patents and not paying fees, they become fully public; however, most people in the public don't understand this system and simple add 20 yrs to the filing date and forget about it. This shows those patents are clearly available for individuals to use.

    Another comment is the one about being limited to only certain licenses or as you say specific projects like Linux. Now clarify something for me, does that mean that individuals can then only release code under certain licenses? If so, which ones? Why is this really bad if the license limitations prevent people from using restrictive licenses. Ones specific to project (ie the Linux Kernel) may only really apply to those one things, and may not have much or any scope outside said project(s).

    You bring up the combination patent idea where A and B are in the system, but your combination exists as Patent C. If there exists the proper measures as set out by SCOTUS and CAFC that A and B could be combined for C the patent can invalidated in court. If it cannot be invalidated, then you might actually have a problem...but in most cases an invalidation can be done unless combining A and B would be totally unheard of.

    You mention that this doesn't reduce the number of enemies you might face. However, having your own patents at hand is good in the event of a court case, because you have your own protection there against their threats, particularly if you can show that their patent is either invalid or that your creation is along the lines of this patent and not theirs. It is also good because companies change regimes. Just because IBM is friendly with Open Source now does not mean they will be in 10 or 15 years.

    The troll is a seriously problem, but the key to the troll is they are out to make a lot of money. The fact is that in the software world open-source does not necessarily have the money. There are bigger and better targets worth much more money. Large companies like Microsoft, Adobe, Sun, Google, etc. are far juicier targets then Redhat, Novell, etc. IBM is a nice big target, but in many peoples minds almost too big. Microsoft has been too quick to settle in the past (possibly because they know they will lose) with various cases (with maybe the exception of EOLAS). However, IBM is fighting SCO tooth and nail and not just sending them on their way to get rid of the pest. When IBM wins this case, they will be much less tempting targets because people will understand that IBM is not going anywhere. Oh and IBM has one of the biggest (actually it might be the biggest) patent portfolio in the US.

    I think software patents are not all the gross evil that everyone sees them, and that certain well written ones are just fine especially in cases where a hardware or software implementation of a process can be used with equal efficiency. I do believe the problem with the US system lies in the fact that the addition was not made by lawmakers or the Patent Office, but by a panel of judges known as SCOTUS, actually the USPTO has tried their best to limit software patents and more particularly business method patents as best as they can without overstepping the SCOTUS ruling.

    I just hope that you have a bit more of an open-mind then the zealots I see speaking most frequently on this topic, and have enough since to understand the need for rational debate and discussion and not just one-sided bashing.
    • SCOTUS did not legalize software patents. If Diamond v. Diehr and prior rulings were followed, we would not have software patents today.
      • I hate to break it to you, but people actually seem to agree that Diamond v. Diehr is what opened the door for software patents. It said well you cannot patent the algorithm, but you can patent the system using it. Therefore, through testing in the court, particularly the CAFC, software patents began to become allowable matter despite USPTO attempts. There is no official law that saw software is patentable, by the letter of 35 USC 101 it quite possibly isn't, but the courts have said otherwise.

        It seems

        • What Diehr said is that a claim does not become unstatutory just because software is a part of it. They affirmed Benson and Flook, in that if the only novel/non-obvious part of a patent is the software, then the invention as a whole cannot be taken as novel/non-obvious. They also pointed out you can't just remove the software and look at what's left. The way the software interacts with other elements may be novel and non-obvious. However, practically none of the "software patents" that are discussed on

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