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."
There is always another patent. (Score:3, Insightful)
In the same way that there is always a bigger fish.
And what you have to fear are overly broad patents and patent trolls.
Many patents are there not for suing the ass off the competition but to protect yourself from getting attacked.
Here's a better idea (Score:5, Insightful)
When I'm writing code, I don't have to worry about patent infringement, because the stuff isn't patentable. That way I can write code just like you write anything else; without looking over your shoulder.
Re:Here's a better idea (Score:2, Insightful)
Here's an idea. When I'm trying to feed my family, I don't have to worry about money because the stuff can't be owned.
As nice as the world might be if food was free and software had no patents, that isn't the world we live in. And no amount of wishful thinking on slashdot is going to change it. If you want to get rid of software patents, start saving up to buy a politician. Or find one that can't be bought. But I'd say option 1 is more realistic.
Re:Here's a better idea (Score:1, Insightful)
"... software had no patents, that isn't the world we live in."
That is the world we live in unless you believe the United States is the world and every other land mass is just an appendage.
Re:There is always another patent. (Score:5, Insightful)
Which only became a problem with the invention of patents in the first place and keeps getting worse.
http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm [ucla.edu]
Re:Stupid System (Score:4, Insightful)
Because it is as close as anyone is going to get as far as logical watertightness goes. Let P be "You are using a patented idea" and Q be "It's been done before". Enforcing a patent requires P.
Patent owner: "P is true of you." (Initial threat)
You: In fact Not-P is true of us.
Patent owner: OK, Not-P so we can't enforce patent.
vs
Patent owner: "P is true of you."
You: P is true but Q is true also. (You try to stop legal wrangling with Q.)
Patent owner: OK, P so we can try to enforce patent, regardless of Q. We'll try to show Not-Q.
Re:There is always another patent. (Score:5, Insightful)
And since free software competing with yours is definitely an attack, why not attack? The very idea of patents, after all, is to encourage people to share their inventions by protecting them from competition in turn. That failed miserably, but can't be helped anymore, there's too many financial interests milking the current system for all its worth.
Anyway, the real defence is moving to a (software patent) free country.
Hidden costs (Score:5, Insightful)
The cost of searching for patents whenever you're doing something, anything, really, is a huge burden on any R&D department. By forbidding employees to look at patents, companies make then focus on the important stuff: making things.
Re:There is always another patent. (Score:3, Insightful)
It would be great then to come to an understanding with companies regarding patents that if they ever attempt to enforce (or transfer their patent to another to enforce) a single patent, we will take notice and consider them hostile to our interests. Defensive patents, sure, we can live with that.
I think some earlier drafts of the GPL3 attempted to have this kind of reasoning - I think those clauses were removed.
Re:Here's a better idea (Score:5, Insightful)
In the meantime, we can keep spreading the ideas of IP abolitionism, encouraging people to ignore it when they can get away with it and to push for legal change. A movement is important when fighting such established interests - buying or convincing one politician won't really do (and isn't really doable on this issue)
Re:Hidden costs (Score:4, Insightful)
But you can't really find a workaround if you can't understand the patent, right? So he goes through and explains how to read the patent. He carefully explains that most people on Slashdot don't know how to read a patent, and explains the right way to do it. My wish is that every mod reads the article and then mods down those commenters in stories that don't have a clue how to read patents. That would raise the level of discussion here. But it probably won't happen (sigh).
We need obviousness reinterpreted for sw patents (Score:3, Insightful)
I think that the best overall defense is if someone can take a case all the way to the supreme court, and argue that the threshold for obviousness
is way out of whack in the granting of software and business process patents.
The goal should be to get a test mandated by the supreme court along the lines of: If three out of four average 3rd year comp sci students
could design and code it up in a month, having heard only the requirements and not the design, then it's f***ing obvious to a competent practitioner
in the field, and should be dismissed.
Who knows. There may actually be algorithms clever enough to deserve patent protection for 5 years or so. But right now those would probably be
1 out of 100 of the patents granted, so the whole system is in total disrepute and it is the duty of a responsible practitioner in the field, as a protest,
to ignore and not view and thus not heed any USPTO software or business process patents, until they entirely revamp the standards and
throw out all patents granted under the existing broken standards.
Re:There is always another patent. (Score:5, Insightful)
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.
Yeah, because that worked out so nice and easy with PNG vs GIF, didn't it?
Re:Here's a better idea (Score:5, Insightful)
> 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..
Growing food is labor intensive, so it cannot be truly free(*), software patents are only a self-inflicted wound.
*: unless you can convince people to give their work for free, _someone_ has to pay for the tools and the labor used to grow food.
an idea, or 1 implementation of an idea? (Score:4, Insightful)
I see several problems with Tridgell's approach.
1st, his talk assumes patents cover only a specific, narrow implementations of ideas. And if some patent troll challenges you, all you have to do is show your idea is slightly different. He says we've gotten it all wrong, because there isn't any such thing as an overly broad patent. I don't know. Isn't the point of a patent to cover an idea, no matter how it is implemented? What is a business method patent, if not that? But if he's right, then RIM really blew it. All they had to do was show that NTP's patents don't cover exactly, precisely what they did and the way they did it. That should have been easy, because they came up with their own system. Somehow, I think that if it had been that easy, RIM would have found the way. Instead RIM tried what he strongly recommends against, that is, they tried to show prior art. There was just this minor problem that their legal team foolishly hoked up some fakery on that point.
2nd, he assumes too much about the methods of the patent trolls. Sure, it all comes down to making money, but the straightforward approach of attempting to collect license fees isn't the only way to use a patent to that end. There's the use of patents to stifle competition. That's why MS supported SCO, not to profit off of licensing fees for Linux, but to hurt Window's biggest competitor. Then there's the shakedown, as IBM once did to Sun over 7 patents, including the infamous "fat lines" one. Sun did exactly what Tridgell says to do. They demolished IBM's claims of infringement. And it didn't work because IBM pointed out that they have over 10000 other patents. "Do you really want us to go back to Armonk and find 7 patents you do infringe?" Well, maybe Sun shouldn't have caved. And, there's harassment of the sort SCO did. They knew they didn't have a case-- they were just making a big legal stink in hopes their victims would decide it's cheaper to buy them off than fight them in court. How did PJ tear SCO's case apart? The way Tridgell recommends? Yes, but that was only a part of it. There was also effort to throw the validity of SCO's patents into question by showing prior art.
Re:Here's a better idea (Score:3, Insightful)
he went and made salt without paying the tax
And did so publicly. He didn't try to hide his illegal activities as that would have made him no better than a a common thief.
Infringing on people's IP and hoping you don't get caught is not civil disobediance. Its simply breaking the law because you feel like it.
After all, Ghandi said himself
When any person in authority seeks to arrest a civil resister, he will voluntarily submit to the arrest, and he will not resist the attachment or removal of his own property, if any, when it is sought to be confiscated by authorities.
I find it offensive when people try to cloak their criminal activities as civil disobedience. Of course, calling someone out for it is going to get me modded down here at slashdot, where people too afraid to take on authority figures like to fantasise about doing it.
Re:There is always another patent. (Score:3, Insightful)
That is mostly because Internet Explorer didn't properly support PNG until the GIF patent expired.
which is not so much a problem with patents, or workarounds, but with monopoly power of a product - in this case IE6.
Fortunately, this would not be an issue anymore as IE seems to be headed to the folder marked "niche browser", but it is still an issue with other monopolistic products - eg if there was something that was patented but used by Windows that only the open source community wanted to replace, but MS couldn't give a rats ass about, that product would continue to resist change. FAT32 for example.
Re:There is always another patent. (Score:4, Insightful)
You make it sound like it's trivial to copy a patent worthy idea when it really isn't.
If an idea is interesting, it will be exceedingly difficult to copy the work that's rather the point.
If you have never read the relevant patents but have managed to "copy" the relevant invention
then that should nullify the patent right then and there because what is happening now is that
the patent holder is TRYING TO STEAL THE PRODUCT OF YOUR INTELLECT.
This the problem that is glossed over by the corporate toadies.
BS patents steal from everyone else. They steal from everyone else the ability to benefit from one's own labors and one's own intellect.
Patents are intentionally obtuse for "legal" reasons. Dealing with them for the most part is
more trouble than they are worth even if you only consider them "useful documentation" rather
than something to create defenses for.
Re:Why not just prior art everything? (Score:4, Insightful)
It is an example of a patent that is nothing more than pretty words that was not rejected in accordance with the patent code.
There is no proof, not even any viable evidence, that the described "invention" would function in any way at all, let alone that it would satisfy the claims made in the patent. We aren't even talking Marketability, we are talking "It just can't work".
If this sort of patent is being issued regularly by the patent office for the sake of collecting issuance fees, that would seem to indicate that the patent office itself is in habitual violation of the patent code for economic benefit.
In simpler days we would call such actions "corrupt".