Tridgell Recommends Reading Software Patents 173
H4x0r Jim Duggan writes "Andrew Tridgell rejected the common fears about triple damages: 'If you've got one lot of damages for patent infringement, what would happen to the project? It's dead. If it gets three lots of damages for patent infringement, what happens to the project? It's still dead.' Tridge then explains the right way to read a patent and build a legal defense: 'That first type of defence is really the one you want, it's called: non-infringement. And that is: "we don't do that. The patent says X, we don't do X, therefore go away, sue someone else, it's not relevant for us." That's the defence you want. [...] Next one, prior art: [...] Basically the argument is: somebody else did that before. It's a very, very tricky argument to get right. Extremely tricky, and it is the most common argument bandied about in the free software community. And if you see it in the primary defence against a patent, you should cringe because it is an extremely unsafe way of doing things.' There are even some tips in the talk specifically for Slashdotters."
Re:I've heard that defense before... (Score:3, Informative)
Trademarks are very different from Patents.
What you describe is a Trademark infringement.
Re:There is always another patent. (Score:5, Informative)
And since free software competing with yours is definitely an attack, why not attack?
He answers that in the article, he says we need to make the OSS community the hardest, meanest thing possible to attack with a patent, and he explains a way to do it:
Every time an open source project gets sued, we need to find a workaround for the patent, and publicize it loudly, so anyone can use that workaround. The great thing is, after that, the suer would no longer be able to collect royalties from anyone for that patent, because they will just use the workaround. Suing the open source community will be equivalent to losing all potential revenue from your patent. No one will want to do it.
Re:Here's a better idea (Score:5, Informative)
Re:Here's a better idea (Score:3, Informative)
> As nice as the world might be if food was free and software had no patents, that isn't the world we live in.
Remember that software patents are basically non-existant in Europe..
Not strictly true. Certainly the UK patent office (and I believe some others) have been merrily awarding software patents for some time. Though I don't know of any infringement lawsuits.
Re:Here's a better idea (Score:2, Informative)
People don't in general have the duty to go to jail for their beliefs. People do have the duty however to do what they can to realise those ideas they consider to be good. If you think going to jail is going to fix anything, you're free to do so, but I wouldn't consider it a very effective form of activism under the current circumstances.
Posting AC because it seemed appropriate.
Re:Here's a better idea (Score:3, Informative)
Re:Here's a better idea (Score:2, Informative)
Invalidity _can_ work (Score:2, Informative)
I think he's wrong equivocating the invalidity defense with the prior art defense. My understanding is a patent can be invalidated - and rendered completely ineffective - if you can show that it doesn't actually teach a practicable implementation of a way to achieve the claims.
I had experience with this. We received a cease and desist letter from a (large) company saying we were infringing a patent they had claiming synchronizing audio playback with the movement of a cursor. After carefully reading the description, we realized that they were actually describing doing this synchronization by assuming that the real-time clock signal was all that you needed to know how much of the wave file had been sent to the audio output ... and we knew that this could not actually work. It didn't account for processing delays owing to CPU/memory/bandwidth limitations. Our lawyer wrote a letter back to them saying this and we never heard from them again.
Note that the _claims_ themselves did not describe the synchronization method - they were claiming the generality of doing the synchronization. It was in the _description_ that they explained _how_ to do the synchronization and this is where we found the flaw which invalidated the entire patent. I should note also that the description included words indicating that the method they were describing was "essential" to the invention - so it was actually a badly written patent. If they had carefully qualified the description with words like "this is one possible method ... there are others known to those skilled in the arts", we might not have been able to make this defense. And, of course, this never went to court (probably because they realized how badly the description had been written). But, I've seen other such flaws in patent descriptions - you'd be surprised how often lawyers make stupid mistakes like this.
And, if you do find such a mistake, you will have helped to move toward invalidating the entire patent, as opposed to just avoiding the particular infringement suit. It is lots more work to wade through entire descriptions, and I wouldn't recommend doing it unless, as the speaker indicates, you are in the cross-hairs of an infringement suit. But, it can be a very good feeling if you succeed!