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Patents GNU is Not Unix Your Rights Online

Tim Bray Finds An Affinity Between Patents And OSS 209

Posted by timothy from the but-the-broken-system-remains-broken dept.
Manuzhai writes "Tim Bray, of XML co-invention fame, is writing about software patents and Open Source software today. While he deprecates the 'business-method' patents like one-click ordering, he thinks some (Open) source code could tell the truth about a patent application: 'In fact, in an ideal world, I'd rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one.'"
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Tim Bray Finds An Affinity Between Patents And OSS More

Tim Bray Finds An Affinity Between Patents And OSS

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  • At least... (Score:2, Insightful)

    by mirko ( 198274 )
    sombebody's who doesn't agree proposes a constructive solution.
    I like it provided there's no more 1-click-purchase involved.

    • Re:At least... (Score:5, Interesting)

      by Halo1 ( 136547 ) on Wednesday October 13, 2004 @08:13AM (#10512753)
      Plenty of alternatives [ffii.org] have already been proposed. The problem is that patent lawyer associations simply do not want any changes [typepad.com] that could substantially reduce the number of granted patents (see points 6 and 10).

      Besides, this proposal has a problem of its own: software patents can include so-called "program claims". In that case, not just the use of a program which infringes the patent, but also the publication of such a program can be forbidden. Many software patents (and even non-software patents) are starting to include those.

      If you start adding source code to patents, then those patent descriptions themselves can infringe on other patents. It's completely silly since the patent system is supposed to encourage publication of information, but nowadays it can also be used to for forbidding publication of information (because some people think software is the same as a "machine", instead of simply a description of something).

      • Re:At least... (Score:3, Insightful)

        by smittyoneeach ( 243267 ) *
        If publication is forbidden, what is the effect upon 'prior art'?
        Now I pour years into my (supposedly) new variation on the theme of moving information in a binary sort of way, and someone pulls something from their colostomy-bag of tricks?
        Or is this another one of those new 'security' things I keep hearing about?

        • If publication is forbidden, what is the effect upon 'prior art'?

          Nothing. Even if there is no program claim on some method described in software, people can still develop it and not publish it. The only thing is that patents with such claims can be used to forbid all "computer-interpretable" publications of descriptions of the patented "process" (regardless of whether this is a chemical process or 1-click shopping).

          The reason is that in case of a program claim, you do not get a patent on "a computer

  • Hum?! (Score:5, Insightful)

    by Jondor ( 55589 ) <gerhard@frappe.x[ ]ll.nl ['s4a' in gap]> on Wednesday October 13, 2004 @08:04AM (#10512679) Homepage
    Sounds more like a "shared source" (look, don't touch) than "open source" to me.. Especialy the freedom part doesn't seem to be there as the open source implementation is needed to get a patent. So the contents is patented and unusable as open source.. Or did I mis something here?
    • I think the idea was that free use of the patent would be granted for the open source implementation (pretty much a prerequisite of releasing it as OSS, as you point out). If you want to make a closed implementation, you'd have to negotiate licensing as usual.

    • Re:Hum?! (Score:4, Informative)

      by cperciva ( 102828 ) on Wednesday October 13, 2004 @08:42AM (#10512964) Homepage
      Or did I mis something here?

      Aside from the second 's' in "miss", yes.

      Patents are supposed to give sufficient detail to allow someone "skilled in the art" to reproduce the invention. Almost all "software patents" miserably fail at this task.

      Requiring that working source code be provided would avoid the current situation where patenters obtain legal patent protection while still retaining effective secrecy.
      • I might be wrong, but I believe the USPTO don't even require any working prototype to patent a software anymore; you just need to say "I have invented (in fact imagined) a software, or a business method, which does, this and that" to have-it patented and leave it to court to decide if it's really valid or not !!

        scary !!

    • Re:Hum?! (Score:3, Informative)

      by Qzukk ( 229616 )
      I suspect that the idea really is somewhere about like that, until the patent expires. Then the published code would enter the public domain and anyone can use it for whatever, open or closed. Either way open source is a bit of a misnomer since nobody is free to use it in the first case, nor is there licensing to ensure that derivative works remain free after the patent expires (though the original code would remain public domain).

    • Re:Hum?! (Score:3, Informative)

      by mdfst13 ( 664665 )
      "Sounds more like a "shared source" (look, don't touch) than "open source" to me"

      Yes, but after the patent period expires, the source would be public domain. I.e. during the period of the patent use of the source is restricted (and would be even if the source was not in the patent). Afterwards, use of that source would be unrestricted.

      Also, if you obtain a patent license, there is nothing keeping you from modifying the code during the patent period. It's not Free, but it is open. However, I think that

      • >Yes, but after the patent period expires, the source would be public domain. I.e. during the period of the patent use of the source is restricted (and would be even if the source was not in the patent). Afterwards, use of that source would be unrestricted.

        Patent period != Copyright period (Thus: requirement for FOSS license)

        This would work quite well if software patents would be restricted in time, to say 5 years or something.

  • Novell (Score:3, Interesting)

    by Anonymous Coward on Wednesday October 13, 2004 @08:05AM (#10512681)
    Well, with Novell now throwing its substantial patent portfolio [groklaw.net] behind open source, and Microsoft having promised they won't use their patents to crush open source, I don't see what all the fuss is about.

    Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them.

    • Re:Novell (Score:2, Informative)

      by Golthar ( 162696 )
      Where did Microsoft promise this?
      All I can remember them saying is that they will use their patents as a source of revenue (which can be construed as not going after open source projects per se as there is little money there)

    • Re:Novell (Score:2, Interesting)

      by 0x0d0a ( 568518 )
      Wow. Novell just did something that

      a) They're good at.

      b) It's hard for the FOSS community to do.

      c) Helps the FOSS community a lot.

      I think I speak for just about everyone when I give a hearty "Thanks!" to Novell.

      Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them.

      [Sigh] Yes, this is always where the argument gets uncomfortable, because you're forced into a position of attacking someone's current source of income, and t
      • Please don't use RSA as an example of a 'good' software patent - it is one of the worst. The ideas behind it are purely mathematical and the cryptographic use of the algorithmic form of the trivial lemma rediscovered by R, S and A is truly simple and obvious.

    • Re:Novell (Score:3, Insightful)

      by Wolfbone ( 668810 )
      Novell aren't throwing their patent portfolio behind open source, they're throwing it behind themselves and their customers. Microsoft has promised nothing substantial afaik and even if they had you'd have to have been born 10 minutes ago to swallow it.

      As for your last remark, well... Perhaps if slashdotters relied on providing spamming services to viagra and penis enlargement companies, as I do, they wouldn't be so critical of spam.

    • Re:Novell (Score:4, Insightful)

      by maxwell demon ( 590494 ) on Wednesday October 13, 2004 @08:38AM (#10512940) Journal
      Perhaps if you didn't rely on a software patent as your primary source of income, you would be more critical of them.

      Of course if your income depends on something, you'll be automatically biased. But the fact that you rely on it doesn't mean you should.

      To make an extreme example: Say, in some country there was passed a law. This law states that you can get a killer license (which are sold in a limited amount by the state), and after aquiring that license, you are allowed to kill about everyone you like (with some exceptions for government members and similar). Some people bought those licenses and now legally make a living as professional killer. Of course there are people against this law, but the killers just say: "If your income depended on killing other people, you wouldn't be so critical about it." Now, would this killer convince you?

      Note that I don't equate software patents with killing people (while pharmaceutic patents indeed can cause the death of people in some cases), but this is just to demonstrate that the fact that you rely on it as primary source of income doesn't tell anything about if it is right or wrong to have it.
    • Well, with Novell now throwing its substantial patent portfolio behind open source, and Microsoft having promised they won't use their patents to crush open source, I don't see what all the fuss is about.

      Perhaps if slashdotters relied on a software patent as their primary source of income, as I do, they wouldn't be so critical of them.

      That's an entirely separate issue, about protecting OSS from claims of patent infringement.

      This article, on the other hand, is about changing the way software patents are

  • public patent license (Score:4, Interesting)

    by AeiwiMaster ( 20560 ) on Wednesday October 13, 2004 @08:05AM (#10512688)
    I think a way to handle the patent problem
    is to make a patent license which work with patent law
    as the GPL work with copyright law.
    • These exist, but they would not solve the problem.
      • Could you post some links, so I can verify your claim ;-)
        • Here [216.239.41.104] is a google cache of part of a license. The relevant bit is the grant-back clause.

          Basically it works like the GPL. A licensee can use the licensor's patented invention provided that, among other things, he grants back to the licensor a right to use any relevant improvement patents the licensee invents.

          Tweak it a bit, and there's your GPL for patents.

          But it doesn't help much, since the scope of patent protection is amazingly broad, and most people willing to invest into getting patents aren't likely
          • You need to go a little further, I think.

            You need to require that the licensee grants to *everyone*, not just the licensor, a right to use all their patents used in the same product as the licensed patent (I'd like to say "all patents owned by the same person" but that's probably impractical) under either the terms of the "PGPL" or under completely unrestricted terms.

            This is more like the actual behavior of the GPL: As soon as you combine GPL code with something else into a single product, you're required
            • There is 3 players

              1) The public patent foundation (PPF).

              A not for money foundation which
              hold a collection of patents under PPL.

              2) a small inventor.

              3) a big corporation.

              Here is how I think the public patent licence (PPL) should work.

              For a inventions under PPL the following is required.

              a) All other patents the invention violate must be under PPL.

              b) Blueprints/Source code/technical details for the invention must be published trough the PPF.

              The is also a similar Lesser PPL (LPPL).

              For a inventions und
            • To solve that last problem, you'd need to require a nonexclusive license to use, make, nonexclusively relicense, etc. any patented inventions added; failure to do so would be breach of the Patent GPL, and leave the contributor open for an infringement suit.

              The problem still is that if the contributor infringes on a third party's patent, everyone using the contribution is infringing too. Perhaps they can seek indemnification, but it might not be effective, and the fact that contributors would have to indemn

    • Patents are unbelievably expensive compared to copyright. There are two ways that they are expensive.

      • The thousands of dollars to draft and maintain a patent (copyright is free and instantaneous)
      • The years of time it would take to comb through every patent, understand it and know for sure that you aren't violating any existing patents

      The second point makes the system entirely un-workable as there are so many patents that it is impossible for any one person to be sure that they aren't stepping on someone

  • Patenting of laws (Score:5, Funny)

    by Anonymous Coward on Wednesday October 13, 2004 @08:06AM (#10512693)
    Sorry this may seem slightly offtopic but.. How come John Kerry or GWB don't patent their ideas for laws? That way innovation in legislature can be boosted. Hell, you can then have companies R&D'ing effective legislation that can boost the economy. They can then sell the law to the politicians who will pay a either a one time lump sum or portion of the laws revenue to the company.

    If patents boost innovation and improve quality of life .. why isn't this a practice for legislature as well. Also it will cut down on Democrats stealing Republicans ideas and vice versa .. and spur innovation within these parties.

    Technically existing business process patents can be utilized to patent laws.

    Anyway, nuff said .. I'm off to patent my universal healthcare idea.

    • Re:Patenting of laws (Score:4, Interesting)

      by Halo1 ( 136547 ) on Wednesday October 13, 2004 @08:19AM (#10512800)
      People mod this as funny, but why not? Patent-related business methods [dailyjournal.com] (implemented in software, of course) are already getting patented now. I guess you could see the introduction of laws also as some kind of business method in certain cases (DMCA anyone?)

      Anyway, not all lawyers seem to be happy with this, but as Karl-Friedrich Lenz writes: [lenz.name]

      If in their view software patents are so desirable, the patent attorney community should eagerly volunteer to be the first in line for the fantastic technological advances they promise everybody else. Then, after the great leap ahead in patent attorney productivity gained by giving them patent protection for themselves becomes clear, we can consider gradually expanding the system to other areas.
    • Because we'd end up with the most efficient system possible -- facism. ;)

  • Patent system really is broken. (Score:4, Insightful)

    by Jaywalk ( 94910 ) * on Wednesday October 13, 2004 @08:07AM (#10512706) Homepage
    The article argues that the patent system is not broken and that the only problem is the implementation. That's not a consistent argument because the way it's implemented is part of the system. Even his opening example, where an individual programmer comes up with an innovative algorithm and wants to patent it, contradicts the premise. The way the current patent system is written, the ante for playing the patent game (in terms of lawyers and fees) is too high for most individual players or small businesses. Before patenting software can even be considered, the patent system itself needs fixing. There is a good alternate proposal for this on Groklaw [groklaw.net].
    • Software should be copyrighted or protected by trade secret but NEVER patented. Software is a creative expression - not a machine. If you want to protect how you do something in code, then close the source. It should be as simple as that. Anything less than no patents for software opens all software to tyrrany from the big software corps.

  • I understand his point, but... (Score:3, Insightful)

    by atrizzah ( 532135 ) on Wednesday October 13, 2004 @08:09AM (#10512718)

    I still think that software patents stifle innovation. The average useful program is made up of numerous components, not like an improved butter churn. Imagine if every little part of a program were patented: people would be way too caught up in liscensing fees to be able to write anything, especially a large application. If the patent system were to ever reasonably be applied to software, it will definitely need standards, something it sorely lacks now.

    I do agree with him that anything software that is patented should be open source. At least this way, the company is forced to essentially put their idea in the public domain. Don't they make inventors of mechanical systems publish a blueprint?

    I sure hope we get this figured out soon, because with multibillion dollar lawsuits flying around, I don't see how even giant corporations can feel safe doing business here in the US

    • Yes, schematics were/are often submitted as part of the patent application when dealing with mechanical devices, if it's needed for the person reviewing the application to understand how it works. I think the problem is that the patent office isn't savvy enough to realize when a software patent is too broad. Requiring some form of an actual implementation would help there.
  • While the lawyers get rich and the large corps spend their small change in the patents courts it's the small innovator who continues to suffer.

    Just how long do patents last on software, 75 years(ish)? It strikes me that innovation should be rewarded by a short patent of say 7 years then the IT community benefit straight after.

  • They'd incent the inventor to share the goodies and the whole world would end up improved
    How would revealing the source help? It would save you the effort of reverse engineering, but you would still not be (legally) able to use whatever it is you were interested in, without obtaining a license from the inventor.
  • A recent discussion on Groklaw included the idea of mandating that royalties on use of patented software must be based on a percentage of the sales price. Any percentage of zero is a reasonable amount to pay for including patented algorithms in free software. I couldn't care less what impact this might have on proprietary software makers; let them all sue each other into oblivion if that's what they do best.
    • A ridiculous idea. Say that the MPLA (who arrange licensing of patents on MPEG) set the royalty for licensing MPEG2 at 5%. They also set the royalty for licensing MPEG4 at 5%.

      I now create two products, a media player than can play MPEG2 content, and an extended one that can play both MPEG2 _and_ MPEG4 content.

      I price the first at $200, so MPLA get $10 per unit. I price the second at $300, because it's a lot better. MPLA get $30 per unit.

      Why do they get 3 times as much money when I've only used twice a
  • How can you have an 'open source' implementation of something which is patented?

    If it's patented, you'd need a license to develop the program further. You'd need a license just to run it.

    How is that 'open source'?
    • How can you have an 'open source' implementation of something which is patented?

      If it's patented, you'd need a license to develop the program further. You'd need a license just to run it.

      How is that 'open source'?

      Patented inventions can be used for 'experimental non-commercial' purposes (e.g. educational use) without a licence. It isn't open source in the way we currently understand it, but there is scope for this to be useful.
    • If it's patented, you'd need a license to develop the program further. You'd need a license just to run it.

      You need a license to make commercial use of the invention. You can still make an improvement on an invention, and patent the improvement - people wanting to use the improved version would have to pay both you and the original patent holder.

      At least German copyright law exempts both private and research use of a patent from licensing. The idea is basically, only if you use it commercially, the p

  • does source code actually violate a patent? (Score:3, Interesting)

    by gr8_phk ( 621180 ) on Wednesday October 13, 2004 @08:15AM (#10512774)
    I've been considering an unusual idea. Source code is the natural language to describe a software patent. If source code is only a description of the patent, and an executable running on a machine (which seems to be required to complete the "patented device") is required to be a violation... Wouldn't software distributed only as source code be non-infringing?

    As I recall, you are also free to use patented stuff in your own home without paying for it - only commercial use would actually infringe.

    IANAL, and while this seems like an attempt to weasle around the system I rather like it.

    • That's all true. You're more than welcome to write your own open-source one-click shopping system, to use in the privacy of your home.
      • Actually, while you may be free to write your own one-click shopping system, the moment you start using it, you would be in violation of the patent. Patents prevent people from even using the patented device without approval. That's why they're so damaging to Free Software, and why COTS software users aren't really protected any more than FOSS software users (other than the inherent obscurity of the COTS algorithms).

        Of course, IANAL, YMMV, etc.

    • Wouldn't software distributed only as source code be non-infringing?

      That is a famous discussion even beyond patent law, namely whether source code should be protected as free speech. It might well be.

      Then open-source code would be legally privileged over binary executables - something Richard Stallman must have been dreaming about for years. Make it actually illegal to distribute binaries...

      For an example of the shallow border between source code and constitutionally protected speech, have a loo

  • Sun employee peddles Sun line, (yawn) (Score:4, Interesting)

    by hopethishelps ( 782331 ) on Wednesday October 13, 2004 @08:16AM (#10512791)
    From Bray's article:

    Suppose you're a keen young programmer and you've figured out a keen new algorithm for securing a communications channel or crash-proofing a database or animating an MMPORG monster.

    He goes on to suggest "well, why not" a patent.

    He expects us to believe that he doesn't realize that "a keen young programmer" hasn't got the tens of K dollars to get a patent, and certainly hasn't got the millions of dollars needed to defend a patent against wilful infringers.

    I think the article is probably just astroturf; after all, Bray is now a Sun employee and the Sun's line is that software patents are a Good Thing.

    • He expects us to believe that he doesn't realize that "a keen young programmer" hasn't got the tens of K dollars to get a patent

      I believe you're out by an order of magnitude. You don't _have_ to hire a patent attorney to get a patent. It only improves the chance of being successful, as they know how to phrase them to get them through.

      and certainly hasn't got the millions of dollars needed to defend a patent against wilful infringers.

      At this point, he would show his patent and the infringer to potent

  • Give no ground. Not an inch. (Score:5, Informative)

    by Featureless ( 599963 ) on Wednesday October 13, 2004 @08:23AM (#10512825) Journal
    I read the article. It's basically incoherent, or rather, it doesn't give enough details to even properly evaluate the idea. One thing's for sure. It does not answer any of the major, show-stopping problems with software patents.

    If you have a patent office staffed with geniuses, gifted with eidetic memories, even if every patent holder submits open-source code along with the patent, you will still have a body of hundreds of thousands or millions of patents, and hundreds or thousands more each day.

    A software developer will have to read the entire patent database, and then stay current with all the new applications. Obviously this is physically impossible. The end result? Every piece of code is a ticking patent timebomb.

    "Hello, sir. I see you are violating my patent on dereferencing pointers on Tuesdays. I assure you this was extremely innovative in 1992. My fee is $1,000 per asterisk, of I will see you in court. By the way, a little hint about court: it will scare off your customers, cost you millions in attorneys fees even if you win (and you might lose!), and take ten years. Your choice."

    Software patents are purely an anticompetitive tool designed and maintained exclusively for a few large corporations who just happen to have created large, shockingly broad software patent portfolios. It allows them to sue any small competitor out of existence, and threaten even larger competitors. They have already been seriously destructive to our economy, and their effect on innovation, and eventually America's place in the global technology industry, is an ongoing catastrophe.

    There is no possible compromise. The system is inherently, obviously broken - a ridiculous legal con game. Software patents must be repealed, or our technology industry will wither and die (and happily be replaced by Europe - or, if Europe isn't smart enough to steer clear of them, in Asia).

    • Well said! Well said!

      Only one slight clarification: Software patents do not need to be repealed, because they were never legislated. The US Supreme Court has always held that software for general-purpose digital computers is not statutory material for a patent. What is needed is legislation that clarifies that no software is statutory material for a patent. In the meantime, we need a policy at the USPTO that is consistent with the Benson, Flook and Diehr cases.

  • Not sure this will help (Score:4, Interesting)

    by nels_tomlinson ( 106413 ) on Wednesday October 13, 2004 @08:24AM (#10512833) Homepage
    The patent office used to do something like this: they once required that every patent be accompanied by a working model. They spent a lot of money over the years storing those models. Today, they only require models of eternal motion machines. There is little downside to Bray's proposal, since the storage space for the software models would be negligable.

    Bray says that software patents do a lousy job of disclosing inventions: they are (sez he) ``notoriously inaccurate, incomplete, and unreadable.'' He assumes that the patent office, which can't even seem to read the patent applications, would be able to test the software and determine whether it was indeed a functional and useful implementaion. That sounds optimistic.

    Furthermore, any patented methods and the code which embodied them would be of no value to Libre software until the patent had run out. After all, public domain implementation or not, you still have the problem of a license for the method!

    • "He assumes that the patent office, which can't even seem to read the patent applications, would be able to test the software and determine whether it was indeed a functional and useful implementaion"

      Even if they fail at this, there are still two things that this does:

      1. A defendant in an infringement suit can read the actual software and use it in the defense. If the code is non-functional, then it will be easier to invalidate the patent in court (since a valid implementation is required).

      2. After th
  • I read the article and actually see nothing he covered that is anything different than patents now. I'm not a patent lawyer though. I suppose copyright law doesn't require an open source version, but patent law usually requires a working prototype of whatever it is that you are going to patent. It's the reason why I don't own the patent on the windowed refrigerator, even though I originally came up with the idea in class when I was 7. I knew it'd be possible one day, but I didn't know how.

    To get straight t

  • We already have (Score:4, Insightful)

    by sytxr ( 704471 ) on Wednesday October 13, 2004 @08:37AM (#10512934)
    obfuscated source code contests> . [fact-index.com]

    ( It should be clear to us that, without very strong safeguards against it, that is what patent lawyers would tend to make out of writing source code for software patent applications, just like what they have made out of the descriptive text for normal patent applications. )

  • Patents and time. (Score:4, Interesting)

    by malkavian ( 9512 ) on Wednesday October 13, 2004 @08:51AM (#10513041)
    Software patents, aren't in themselves bad. The thing that isn't addressed is their timespan.

    Patents for physical things took into account the fact that they needed to be drawn, engineered, factories built to create them, distribute them, have them installed where necessary, and then cover them through a fair lifespan.

    Take, for example, valves on a chemical plant. A new and innovative one could be thought of and patented.
    Then, the factories set up to produce it (say a year from patent perhaps, now safe to give the designs under contract, as it's patent protected), then it needs to be marketed, so, perhaps 2 years from inception to starting to get used. Initial tests and usage in industry, say, 4-5 years until it really starts to be used industry wide.
    Lifetime of a valve, perhaps 10 years if they're in a harsh environment, more if not. So, you get in one round of replacement of the same thing.
    But, the timescale there for a physical item that's supposed to last 20, 30 or more years isn't terrible. It's still VERY useful in 30-40 years.

    Now, software, protected for the same duration.
    Patent is drawn up. Software out the door days later, as there are no real tooling and production costs (relatively speaking). It's possible for sales to ramp up and reach market saturation within a year, if it's something innovative and useful. Industry acceptance and having it treated as 'old and established' within 2.
    Within about 5 years, it's (usually) classified as obsolete.
    So, for the next 20 years after being obsolete, it's holding back the market from developing it's successor, because it's patent encumbered, and license fees need be paid on it. So, the next generation flounders.

    If Patents took into account the average obsolescence period of the market, and allowed a patent for the given period, things would work nicely.
    Once it's in the 'getting a little old and clunky' period, anyone can then make a free implementation of it, or perhaps design it's successor based on the original. OR a proprietary new version, or whatever! But it keeps things moving, which is what patents were meant to do all along.

    5 years for a software patent? Sure, that sounds fine. Maybe 7 or 8 at a push. If you've not made money off an idea in that time with a captive market in the tech game, you're probably not going to.
    But the 5 years is enough to allow something to prosper, while ensuring that you keep thinking of the next idea, or allowing someone else to.
    And perhaps it would stop all these patent shops churning out nothing in the knowledge that they've got 20 odd years to sit on it and hope someone comes up with something they can shoehorn into what they've got on their papers.

    5 years is a lot less time, enough, really, to say "If you're not going to use it, then you've had your chance to, now let someone else actually do something good with the idea"..

  • open vs. free (Score:3, Insightful)

    by Tom ( 822 ) on Wednesday October 13, 2004 @09:01AM (#10513132) Homepage Journal
    RMS must be rotating in his... uh... bed or so.

    This is where "Open Source" meets "Free Software" and the two don't agree, not in the least.

    Free Software is incompatible with patents, both from the license terms (the GPL even explicitly mentions patents) and the spirit (sharing of knowledge).

    Open Source allows such abominations as "you can look, but if you copy we'll sue you from Alaska to Hell".
    Isn't that essentially what DRM is trying to do?

    The idea is nice at first glance, much like patents of old required a working mechanical model. It does fit well to the basic idea behind patents, which is essentially "tell us all how it works and we'll give you some rights for teaching us".
    It doesn't fit with Free in any sense. Whether or not it fits with Open Source depends on your philosophy. Mine certainly isn't one of prison-but-with-walls-of-glass. I prefer not having to live in a prison at all.
    • What on earth are you talking about? I don't think I've ever heard anybody on Slashdot of all places say that source-viewable is the same as Open Source. Sure, the words themselves, "Open" and "Free" are open to all sorts of vagueries of interpretation, but at least Open Source doesn't suffer from the awful confusion surrounding the catchphrase "Free Software" which seems to get translated to the altogether semantically different "freeware" as often as not in mass media articles.

      As to this specific pro

      • but at least Open Source doesn't suffer from the awful confusion surrounding the catchphrase "Free Software" which seems to get translated to the altogether semantically different "freeware" as often as not in mass media articles.

        This actually is a short coming of the english language. In portuguese "Livre" (free as in software) is very diferent from "Gratis" (free as in beer). Pehaps the logo of the free software group should be in latin or esperanto, so it don't get so confusing.

  • Adaptation (Score:4, Insightful)

    by mreed911 ( 794582 ) on Wednesday October 13, 2004 @09:05AM (#10513170)
    The problem with the current patenting scheme as it applies to software is that it's a conceptual patent. Patents, however, were meant to protect applications of concepts.

    Take, for instance, the fire service. My dad's a career fireman and sits on several technical committees that draft and approve the specifications for different types of equipment used in firefighting (specifically, breathing apparatus). Every time the specification changes (recently, to include a visual warning device in the face mask to display the percentage/amount of breathable air left in a tank), the vendors have to build new functionality into their gear. Each one has to design something that meets the standard, and each one patents their implementation of the standard, or licenses an already patented mechanism that meets the requirements. Point being, the vendors can't patent the CONCEPT of having a heads-up display, just their particular electro-mechanical implementation if it's something novel.

    Software, on the other hand, has been allowed to patent a CONCEPT (such as one-click ordering) rather than a particular implementation simply because they claim that exposing their particulars with respect to implementation (source code) would give someone a competitive advantage against them.

    Hogwash. In fact, it's easier to modify a physical device enough to get a new patent... it's harder to modify software to make it apparently distinct from the original patented source, esepcially if it's written in another language where someone is going to make comparisons not on a line-by-line basis but a method-by-method basis, and get into comparative analysis.

    I agree that the system is broken and needs to be fixed... and I think the way to do that *is* in fact to require software patents to include their source code as well as a solid description of the methods used (perhaps an object model, as well?)...

  • "...While he deprecates the 'business-method' patents like one-click ordering..."

    You keep using that word. I do not think it means what you think it means.

    IM

  • All ideas for Software Patent reform ignore this simple but basic equality. Regardless of the complexity of the data handling that we have enabled our software to perform it still just comes down to bit-twiddling. Adding, subtracting, multiplying and dividing ones & zeros.

    No matter how ingenious we get at it, mathematics has never been a patentable commodity. The fact that software has patents is a failure in the education system to properly teach this very basic concept. A concept that any 6 year old
  • We can analyze and discuss ways of making patents work and work for open source software till we're blue in the face. But it really comes down to this:

    Software patents suck. They have no upside except to large corporations to try and maintain dominance.
  • I agree [slashdot.org] with Bray about the consistency of patents with Open Source (and the insanity of intangible "business process" patents and their ilk). But you can't patent the prototype and sell the proprietary, secret final product. That's why source code is covered by copyright, and only actual binary images with published source ought to be covered by patents. Software is uniquely compatible with patent requirements for working models, design documentation, and searchability for precedent and references, not to

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