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Patent Case With FOSS Implications 113

Posted by kdawson from the another-inducement-for-offshoring dept.
ThousandStars writes, "SCOTUSBlog posted about the liklihood that the Supreme Court will review whether an organization can get around software patents by completing the work in other countries. This case has huge implications for OSS projects with coders in the U.S., as it may inhibit, among other things, the ability of American coders to contribute to projects that violate U.S. software patents." The Patently-O blog gives background on the case.
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Patent Case With FOSS Implications More

Patent Case With FOSS Implications

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  • So as part of the commercialisation process for the open-source product, the commercialiser will seek a patent licence from the patent licence holder ?

    Is there an intent to commercialise it ? If so, how will it be commercialised ?

  • From what's outlined on SCOTUSblog, it kind of sounds like they're concerned about software object code. I imagine there's no chance the court would decide that software patents are invalid, but maybe in the worst case it would still be possible for OSS programmers to work on patent-impacted projects by modifying/committing only non-impacted sections of the software and by avoiding any U.S.-hosted mirrors of projects or binaries?

    • From what's outlined on SCOTUSblog, it kind of sounds like they're concerned about software object code.
      Could someone with copyright/patent on a compiler claim that any object code it produces is a derivative work since it uses their proprietary assembly-generating algorithm?

      • patented compiler (Score:3, Interesting)

        by falconwolf ( 725481 )

        Could someone with copyright/patent on a compiler claim that any object code it produces is a derivative work since it uses their proprietary assembly-generating algorithm?

        I think that's an interesting question that should be asked in court. I think it would make a mockery of software patents, which is a good thing. Neither alogrithms, business methods, nor software should be patented period!

        Falcon

        • Asking the court. (Score:3, Informative)

          by pavon ( 30274 )

          I think that's an interesting question that should be asked in court.

          The Supreme Court will not rule on theoretical situations, only cases concerning events that actually occurred. There are a couple of reasons for this, a big one being that it is seen as a better use of time to focus on laws that are actually affecting citizens and society, than on a bunch of what-ifs. Another reason is that the court's view on how narrow or wide judgments should be has varied over time.

          Remember, the Supreme Court does not

    • Step back...... (Score:3, Insightful)

      by whoever57 ( 658626 )
      I can understand that a law exists that prevents items that violate US patent law from being exported, but why does the US have such a law? All it does is harm US manufacturers. It only makes sense for patents to apply where the product is actually used.

      Assume a product is used in country A. There are no patents in country A that affect this device. The only patents on this device exist in the USA. Now, every country on the globe can build and ship this device to country A, EXCEPT the USA. How does this la
      • To encourage those countries to have patent laws of their own. Otherwise, I could get a glimpse of patented designs here in the states, take a flight to a country without patents, and make money on a patented idea. Then, countries without patent laws miss out because the companies that hold those patents don't want to risk giving the design to anyone not bound by it, and everyone else is not allowed to try.

        It's just another example of the problems with patents. If I tried to produce patented medicine h

      • Re:Step back...... (Score:4, Informative)

        by deblau ( 68023 ) <slashdot.25.flickboy@spamgourmet.com> on Sunday October 01, 2006 @05:53PM (#16269331) Journal
        I can understand that a law exists that prevents items that violate US patent law from being exported
        That's not what's going on here. The definition of direct infringement is in 35 U.S.C. 271(a) [cornell.edu]:

        Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.
        The law doesn't cover exports directly, but it does say you can't make a patented invention in the US (for export) unless you have authority. There is, however, a loophole in this definition: if you wanted to export a patented invention to sell it overseas (without permission), but you can't make it domestically because of 271(a), then you can make the parts in the US, ship the parts overseas, and have the invention assembled there. Congress didn't like that, so they enacted 271(f).

        271(f) comes in two flavors. 271(f)(1) basically says that you can't ship parts overseas for assembly if you couldn't legally assemble them in the US. 271(f)(2) basically says that you can't make in the US and ship overseas any items which have no use other than as part of a patented invention.

        The Supreme Court is trying to figure out two things: whether object code counts as a 'component part' that can be combined with other components overseas in violation of 271(f), and if so, whether copies made overseas of object code originating in the US count as 'made in the US' for the purposes of assembly overseas. The image [typepad.com] on the Patently-O blog shows what's going on.

  • It seems unintuitive that a US company can go around US laws knowing. Aren't there laws to prevent moving illegal acts offshore?

    • Re: (Score:2, Insightful)

      by Lockejaw ( 955650 )
      There may be for some illegal acts, but it seems perfectly legal for companies to move "pay the workers less than $5 per hour" offshore.
    • I suppose that it depends on the act.

      Consumer electronics are often bought and sold with the highest markups outside of the US where the tax on profits is lower.

      Companies avoid laws all of the time. Even within the US it's done quite often. Have you ever wondered why nearly every credit card company is headquartered in Delaware? It's because they can legally charge higher interest rates there. It would be illegal to charge 29.95% interest in California, but it's perfectly legal to do so in Delaware. Perhaps

    • Re: (Score:1)

      by zcat_NZ ( 267672 )
      Three words;

      "Round Island One"

    • Patent protection does not just govern the product development, but also the sale of offending products.

      The patent holders can block the sale of offending products in countries that respect the patents, just the same as if those products were locally made. However, it would get a bit more difficult for the courts to demand documentation from a different country.

    • Patent infringement is a tort, not a crime.
    • Yeah, it's called "laws in other countries". Newsflash: US not world police.

    • At least that's how I interpret it.

      A company can contract to China where they pay workers less than our minimum wage. It would be illegal here, but not there. So they move the work to China. Or Mexico. Effectively bypassing an American law.

      But it's different for people. For example, an American cannot go to Amsterdam, then come home and test positive and keep their job. Or even better yet, read up on Dmitry Sklyarov. [freesklyarov.org] A Russian citizen that broke an American law on Russian soil. Then had the bad

  • Software patents? (Score:4, Interesting)

    by bram ( 490 ) <bram-slashdotNO@SPAMgrmbl.net> on Sunday October 01, 2006 @03:55PM (#16268285) Journal
    Does anyone living outside of the US actually care about US patents?

    Just a question.
    • I think a US patent gives exclusive right to 'manufacture' (in the US), 'import' (into the US), and 'market' (within the US) the patented item, or an item made using the patented process.

      Do correct me if I am wrong.

      • Re: (Score:1)

        by bram ( 490 )
        So stuff not patented in the US can be copied by everyone else, from a US perspective?

        • You mean "stuff patented in the US but not in China can be manufactured and marketed in China with no obligation to the US patent holder" ?

          Sure it can. If the US inventor had wanted a Chinese patent, he should have bought one in Beijing.

          • Re: (Score:1)

            by bram ( 490 )
            If non-US people create software which violates US patent law and US coders are starting to write code for it, the only way the US-coders won't be "prosecuted" is if they don't take credit for their work?
        • > So stuff not patented in the US can be copied by everyone else, from a US perspective?

          Sure, because then it is "fair use", but if a foreigner tries the same, he is a "pirate". Double standards? You bet.

    • Re:Software patents? (Score:5, Informative)

      by Scarblac ( 122480 ) <slashdot@gerlich.nl> on Sunday October 01, 2006 @04:02PM (#16268353) Homepage

      Yes. The Doha round of WTO negotiations have collapsed, so every country is making bilateral agreements with every other country.

      And the US is trying to get their IP laws implemented everywhere else, along with mutual recognition of existing patents (that usually don't exist elsewhere yet, so whenever that happens, US companies have lots of patents while companies from the other side have none).

      And governments everywhere listen to the same big multinationals, who have US patent portfolios and want to grab the open space everywhere else. See Microsoft etc fighting for software patents in the EU, that sort of thing.

      So yes we care, because what happens in the US happens everywhere else, a bit later.

    • Even if software patents does not exist here in Europe, European software companies lose the probably biggest software market in the world by violating US software patent legislation, so I guess it worth it only if they are wrinting software for domestic use, with no intent to sell it overseas.

      • Re: (Score:1, Insightful)

        by Anonymous Coward
        The US isn't the biggest software market in the world.
    • I couldn't care less about US patents. I care if the OSS projects I use suddenly drop all US resident contributors.

      Would US coders need subversion on tor to do perfectly ethical things while the administration of their country use The Law to do perfectly unethical things?

      Shame on us all, we let a bunch of money hungry subhumans rule the world.

      I had put online some anti patent banners back in the time we were discussing it in EU, seems I must do it again, more people need to know.

      • Re: (Score:2)

        by jc42 ( 318812 )
        I care if the OSS projects I use suddenly drop all US resident contributors.

        Which reminds me of a question that I've never seen answered: Suppose I'm an American who has been given an account on a machine in country X. I ssh to that machine and develop some software. Did I develop it in the US or in X?

        This isn't an entirely hypothetical question. Actually, I'm sometimes not aware of where in the world some of the machines are that I'm working on; I sometimes just have a hostname and/or IP address, and th

        • Re: (Score:2)

          by rtb61 ( 674572 )
          Patents don't stop you from developing code they just stop you from distributing it commercially. You can develop the code and even publish it, you just can't use it commercially. If the code is hosted in a country with out patents, there is also nothing stopping you from downloading it and using it personally, as long as it is not on a commercial basis. Of course the government and the military both have legislation in place to allow them to ignore any patents they choose to, so no matter what NSA Linux SE
    • A large number of "US Patents" are actually from foreigners. You don't have to be an American citizen to get a "US Patent." As far as international issues goes several countries have IP Treaties that protect pattents internationally. The US patent(ing) system is very impresive compared to most, because it makes it easy for anyone (from anywhere) to send in their idea(s). Patents you don't notice are military and national security pattent submited to the PTO.

      • Re: (Score:2)

        by dbIII ( 701233 )

        A large number of "US Patents" are actually from foreigners. You don't have to be an American citizen to get a "US Patent."

        Yes, but if you are an Australian organisation like CSIRO and invent and patent WiFi then groups in the USA contest it and say that groups owned by foreign governments have no right to take out US patents so WiFi should be in the public domain. At this point the patent is most likely worthless and it will take years to resolve depending on who decides to stop pouring money into the le

    • No (I speak for ROW) :)

    • Yes (Score:2)

      by jeti ( 105266 )
      Yes. Everyone working for a company that sells goods in the US.
    • Yes..If you are a foreigner you can easily bypass the menace (with Internet and if your home country doesn't recognize the patent (ex: software in Europe)).
      All you have to do is to base your all your business on non-American services (or on American companies with foreign sister companies) and servers.

      US Patents holders will have no way to catch you... Especially if you sell non-physical goods (ie: Software) in the US.

      So in this case, it is just "annoying".

  • "This case has huge implications for OSS projects with coders in the U.S., as it may inhibit, among other things, the ability of American coders to contribute to projects that violate U.S. software patents."

    It seems like they're talking about closing a pretty major legal loophole here. Why shouldn't it be illegal for an American in America to violate American patent law? I mean, if you want to say that software patents should be illegal anyway, that's fine, but preserving a loophole in the law probably isn'
    • I also wonder what OSS projects violate U.S. software patents. Aren't open-source applications that duplicate proprietary ones generally clean-room designs?

      • Re: (Score:3, Informative)

        by Scarblac ( 122480 )

        That's the thing with patents, it doesn't matter if it's a clean-room design. Even if it's your own idea and you had never heard of anybody else doing it, if it infringes on a patent, you owe royalties.

      • When the Unisys/CompuServe gif controversy started, the GIMP ended up dropping support for gif, except in those countries where the gif patent was not active. It's likely that GIMP's gif loading and saving code did not come from those countries, which would force all copies of the GIMP to drop gif support.

        Since the GIMP includes American coders, a coder whose country doesn't have an active LZW patent couldn't simply distribute a patch, because that would be similar to paying someone to avoid a software pat
    • Well, the idea is supposed to be "you have a patent, I have a patent, let's get together and develop a product".

      Whether that works for software is anyone's guess. I rather think not. But then, I have no influence with the US congress, so what I say does not really carry much weight.

      • Well, the idea is supposed to be "you have a patent, I have a patent, let's get together and develop a product". Whether that works for software is anyone's guess. I rather think not.
        This happens frequently...sort of. It is more like two companies have sets of patents and each think the other is infringing on their patents. The result is sometimes a cross-licensing agreement between the two parties where they are each granted a license to the other's patents.
    • "Why shouldn't it be illegal for an American in America to violate American patent law? "

      Shouldn't it be illegal for an American to violate minimum wage laws in foreign countries while the U.S. citizen is working from an office in the U.S.? Shouldn't it be illegal for U.S. to advertise cigarettes in foreign countries? Or Worker safety rules? Or avoid income tax by moving money outside the U.S.?

      I'm not clear what you're saying... U.S. laws apply to U.S. citizens for things that occur in foreign countries?

      • Shouldn't it be illegal for an American to violate minimum wage laws in foreign countries while the U.S. citizen is working from an office in the U.S.?

        No. Foreign countries have their own duty to deal with that.

        Shouldn't it be illegal for U.S. to advertise cigarettes in foreign countries?

        No. Foreign countries have their own duty to deal with that.

        Or Worker safety rules?

        No. Foreign countries have their own duty to deal with that.

        Or avoid income tax by moving money outside the U.S.?

        Yes, it already is

  • Sounds like MS trying to pave the way for an
    "Linux copies Windows"
    "OSS is illegal"
    "Linux is illegal"
    gambit

    Good luck with that, Microsoft, but I still will run Linux regardless
    • Windows doesn't run on an IBM zSeries mainframe. Linux does.

      • Re: (Score:2)

        by jZnat ( 793348 ) *
        Doesn't IBM still push their AIX version of Unix as well as Linux-based Unix?

        • You can get an IBM pSeries box with AIX, or without (the implication being that you will put a RedHat or SuSE Linux on, but it's up to you).

          If you want an IBM maintenance contract, then a year's maintenance for AIX is cheaper than a year's maintenance for Linux.

          If you don't want an IBM maintenance contract, then you should go for the Linux.

  • > This case has huge implications for OSS projects with coders in the U.S., as
    > it may inhibit, among other things, the ability of American coders to
    > contribute to projects that violate U.S. software patents."

    According to the article the case has to do specifically with object code.
  • The original article discusses code, which is a tangible component. But software patent claims tend to be method claims (i.e. a system that does...), meaning that the process, not the component is what is important to discuss. This seems to be trying to subtly shift software patent claims from methods claims to tangible artifact claims - this could have a huge impact from shifting infrignment notions from 'using' to 'having'.

    • Re: (Score:1)

      by bosson ( 793519 )
      Hence, method vs program claims. A apparatus/method claim makes running software an infringement. A program claim makes publishing software an infringement. You just cant overlap copyright more than this. In fact 'program claims' started the surge in granting software patents in Europe in 1999-2000, with the IBM I+II at the European patent office - board of appeal, where "records on a carrier" was found to be a sort of infringement. In the long run, this stupid thinking also makes films scripts or music

  • The Dumbing-Down of America (Score:3, Insightful)

    by FFFish ( 7567 ) on Sunday October 01, 2006 @04:11PM (#16268413) Homepage
    "...it may inhibit, among other things, the ability of American coders to contribute to projects..."

    Yup, indeed it will.

    And the USA will not be as competitive in the world of software development.

    Bullet, meet foot.

    • Bullet, meet scrotum. (Score:1, Insightful)

      by Anonymous Coward
      This isn't just a case of the US shooting itself in the foot, and thus inhibiting its own abilities. This is a case of the US shooting itself right in the scrotum, destroying its ability to produce new programmers.

      These days, many of the most talented commercial developers got their start working on open source software. It's a very good proving ground for new developers. Open source software provides a base upon which a new programmer can build, and thus employ code reuse to help them achieve their ideas.

      O

      • Re: (Score:3, Insightful)

        by fotbr ( 855184 )
        MS now has a free version of visual studio 2005, so touting open source as the only cheap development environment is a load of horse-hockey. The previous "academic" versions that were priced at $199 (for visual studio 6.0 in 1998 and visual studio.net 2003 in 2003 -- I skipped the first vs.net) were not "extremely limited" -- they were the exact same thing as the "professional" package (one step down from their "enterprise" which didn't have many features a beginning programmer would use anyway) with a mu

        • Re: (Score:2, Insightful)

          by knorthern knight ( 513660 )
          > MS now has a free version of visual studio 2005, so touting open source
          > as the only cheap development environment is a load of horse-hockey.

          Next thing you're going to tell me is that the "free version of visual studio 2005" runs on a free version of Windows XP (or Vista), on a PIII with 128 megs of RAM... oops.

          • Re: (Score:2)

            by fotbr ( 855184 )
            No, I'm not going to make that claim. Since the post I was responding to was mentioning development tools, not operating systems, and since I was addressing the point about "$250 extremely limited student versions" not being an accurate statement, it is not relavent.

            For what its worth, a PIII with 128MB RAM will run XP just fine -- you do realize that PIIIs were "current" when XP came out, and that for most of XP's existance most computers shipped with 64 or 128 MB RAM right (granted, not the computers tha

        • Re: (Score:2)

          by FFFish ( 7567 )
          The problem isn't with having access to FOSS tools: it's that one can be dinking around learning how to program, get good at it, develop a killer app, and then be sued into oblivion for having accidently treaded upon some patent or other.
  • And anyone claiming otherwise is in effect commiting fraud against others.

    http://threeseas.net/abstraction_physics.html [threeseas.net]

    But maybe what is needed is complete suppression of human thought in order for there to9 be a revolt and change towards the recognition of what software really is.

    • Re: (Score:2)

      by fossa ( 212602 )

      You seem to think "patentability" is a natural property of certain entities but not others. It is not. It is whatever the lawmakers and the society they represent says it is. This isn't math where one cannot dispute that 1 + 1 = 2. Arguing as if it were is simply a waste of time. Argue instead that software patents do not promote the progress of science and the useful arts, and argue that promotion of this progress, the only constitutionally given reason for patents, is in fact the only good reason for

      • Re: (Score:2)

        by 3seas ( 184403 )
        There are some things universally accepted as not being patentable.

        Natural Law (laws of nature and physics), Physicaly Phenomenon, abstract ideas are the top or primary three. Mathmatical algorythims are also considered non-patentable but in essence such algorythims are in fact composed of the above.

        So yeah, software, from abstraction physics POV, is not patentable. As it is three for three (or four for four if including math) of those things universally considered not patentable.

        Abstraction physics is the

        • Mathmatical algorythims are also considered non-patentable but in essence such algorythims are in fact composed of the above.

          Oh, really? I can probably find a [wikipedia.org] few [wikipedia.org] that [wikipedia.org] are [wikipedia.org] patented.

          I agree that thought processes should not be patentable. However, someone seems to disagree.

      • The law will not suddenly say "oops, unforseen loophole, *poof*".
        I must admit I would like to see that happen sometimes...
    • What if the patented aspects of the software can be implemented in hardware? Do you think the hardware should be patentable in that case?

      • Well, it should; and if you proposed to manufacture, market, or import the hardware, then you should negotiate a patent licence before doing so on a commercial basis.

        I don't think you need a patent licence to develop the hardware, or to import samples, or to prototype a manufacturing process. But, not being a lawyer, I could be wrong here.

      • What if the patented aspects of the software can be implemented in hardware? Do you think the hardware should be patentable in that case?
        It should be and is patentable. In fact, if properly claimed, one patent and one set of claims can cover the same invention in both hardware and software.
    • Software by its nature, is not patantable.
      That ship has already sailed. In the US, software is patentable, and many people do it every day. There is about zero chance that software will ever become not patentable in the US. You can't close your eyes and wish it away.

      • Re: (Score:2)

        by 3seas ( 184403 )
        The correct term for softare patents is "fraud"

        See my second response in this thread for clairification.

        • The correct term for softare patents is "fraud"

          To be a little more accurate, one might say that software itself is not patentable, however, the methods, systems and media of software are patentable. You may not like them. You may think they are fraudulent. Whatever. Software is patentable and this is not likely to change in our lifetime.

          Furthermore, the patentable elements of software have nothing to do with your "things universally accepted as not being patentable".

    • Re: (Score:2)

      by pgpckt ( 312866 )
      And anyone claiming otherwise is in effect commiting fraud against others.

      It's not fraud to cite the controlling case on the issue that says software is patentable . See State Street Bank & Trust Co. v. Signature Financial Group [wikipedia.org]
  • How would anyone outside the project know that someone from inside the USA commited changes to version control to a projected hosted outside the USA? Also, who do all these patent problems benifit anyway? And is the USA simply firewalling themselves away from the rest of the world a viable option? Seems like it would make some corps happy.
  • 'Software patents' are likely to turn 'programming' into a purely commercial endeavour.

    That's likely to make it hard to teach the next generation how to program computers; that will be 'education', and I will not be teaching anyone if there is any chance that someone will slap a patent law suit on me. (Nor will I be paying for a patent licence).

    And if the next generation don't know how, there will be no-one to fix the bugs after the current generation retires.

    And we'll lose it.

    • Considering all the newer algorithms are being patented, this may be a legitimate excuse. You could probably teach the stuff, but programming it for homework would likely be an infringement on the patents.

  • Patenting software is like patenting literature (Score:3, Insightful)

    by mark-t ( 151149 ) <markt.nerdflat@com> on Sunday October 01, 2006 @05:15PM (#16269005) Journal
    There's already a form of IP to protect both... it's called Copyright.

    • Re: (Score:1)

      by PWNT ( 985141 )
      You misspelt "CopyLEFT"

    • Re: (Score:2)

      by Kjella ( 173770 )
      Oh yes, and that corporate logo is already protected by copyright law, let's throw out this completely redundant trademark law. The problem isn't really the "class of works", there's a lot of IMO patentable ideas that could be expressed as software code. The problem is that utterly trivial things can be patented. If Tim Berners-Lee had taken out a patent on "hyperlinking", we'd probably still be paying royalties today. The technical nature of computers seems to increase that tenfold, as everything which is

      • Re: (Score:2)

        by Pofy ( 471469 )
        >Oh yes, and that corporate logo is already protected
        >by copyright law, let's throw out this completely
        >redundant trademark law.

        Trademark and copyright applies to very different things and are not overlaping as you sugest. The name of a company is NOT protected by copyright, but it can indeed be registered and protected by trademark laws.

  • Whoa! (Score:3, Funny)

    by novus ordo ( 843883 ) on Sunday October 01, 2006 @05:30PM (#16269139) Journal
    Respondent AT&T Corp. brought this patent infringement action against petitioner Microsoft Corp., alleging that computers loaded with petitioner's Windows® operating system infringe respondent's patent related to digitally recorded speech.
    "Dear aunt, let's set so double the killer delete select all"
  • This might sound really dumb but OSS doesn't necessarily means commercial software.

    I can imagine someone might patent a certain application which is doing X(Xpat) and some other people are writing an application which does X as well (Xoss).
    X might be patented in the US which doesn't mean X is patented somewhere else.
    Now if Xoss gets imported in the US it might become a patent issue in the US but for the rest of the world it isn't.

    As far as I understand, the problem starts when US coders contribute to this s

  • Anonymous Contributors (Score:2, Insightful)

    by PWNT ( 985141 )
    Just open up some anoymous proxies, for American developers. Let quality speak for itself, should OSS become illegal due to patents, will that stop joe six pack for downloading the best new OS 4 years from now, especially when it's free? Enterprises will be screwed, but who cares about them? Not me, i'll continue to work on whatever platform I like.

    • Re: (Score:3, Insightful)

      by Lehk228 ( 705449 )
      no need to be anonymous, with digital certificates the submitted patches could be verified to come from a single source, without identifying that source
  • I have no doubt that the court will find that patent infringements outside the US will be punishable in the US because of two reasons:
    1: thats what the software industry wants
    2: the US even convicted a guy for running an online gambling site in the UK - why should they handle patent infringement different? http://yro.slashdot.org/article.pl?sid=06/09/07/20 17201&from=rss [slashdot.org]
  • how hard is it to just create a fake online identity and contribute code to projects that way? If you find a bunch of people named Bush George in Belgium contributing to open source projects maybe they aren't really in Belgium.

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