February 15, 2005 12:59 PM PST

HP: Don't like software patents? Learn to deal

BOSTON--Open-source programmers might not like the idea of software patents, but those critics would be better off adapting to the fact that they're not going away, Hewlett-Packard's top Linux executive said Tuesday.

Martin Fink
vice president, HP

"At the end of the day, software patents are a way of life. To ignore them is a little bit naive," Martin Fink, HP's vice president of Linux, said here at the LinuxWorld Conference and Expo. It's fine to object to software patents, but it's foolhardy not to try to acquire them, he said.

"Refusing to patent one's ideas is leaving oneself exposed for absolutely no good reason," Fink said. "For some, (getting patents) may seem like selling out. You can comfort yourself that it's what you do with the patent that matters, not the fact that you have one."

Critics of software patents include some of the highest-ranking members of the open-source and free-software movements. Among them are Richard Stallman, president of the Free Software Foundation; Linus Torvalds, founder of Linux, which piggybacked on Stallman's Gnu's Not Unix (GNU) operating system project; and Brian Behlendorf, a founder of the Apache Web server software project.

In contrast, HP boasts of its patent glories. In 2004, it received 1,775 U.S. patents, placing it fourth on the list of those who acquired the most patents in the United States.

Intellectual-property issues--that is, matters involving patents, copyright and trade secrets--are attracting more attention because of open-source software, which by definition may be shared, changed and redistributed. Those freedoms stand in stark contrast to the secrecy and distribution constraints of traditional proprietary software.

Fink said that open-source software is built on a copyright law foundation, but that patents are more awkward because programmers see them as curtailing their liberties. Companies, on the other hand, see patents as protecting valuable ideas.

Linux doesn't come with any guarantees that it's not violating patents. Indeed, one study by a company selling insurance against intellectual-property lawsuits said that the operating system kernel potentially violates as many as 283 patents. And an HP executive warned in 2002 that Linux foe Microsoft was planning a patent attack against open-source software.

Still, no patent attacks have materialized publicly so far, and the landscape for launching such an attack is becoming increasingly complicated. Linux sellers Red Hat and Novell have vowed to use their patent portfolios to defend against such attacks, while IBM and Sun Microsystems have declared they won't sue over open-source infringement of hundreds of patents.

Also Tuesday, Fink lambasted the practices of the Open Source Initiative, the group that approves prospective open-source licenses such as Sun's Community Development and Distribution License.

In August, Fink said that 52 open-source licenses is too many. Now there are more, he complained, because OSI simply approves any license meeting the Open Source Definition, instead of trying to consolidate to advance open-source business foundations.

"Clearly, the OSI has not internalized the critical role it plays," Fink said. "Approving licenses based on compliance with a specification rather than the ability to further open-source business models makes...a clear and present danger."

Fink is chairman of the intellectual-property subcommittee of the Open Source Development Labs and will work to bring the Linux consortium's weight to bear on the matter. OSDL has an "aggressive plan to drive (OSI) to a new direction," Fink said.


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The problem with software patents...
is that USPTO doesn't have resources to do the research and checking before granting a patent. Certain companies have shown a willingness to try and exploit this weakness and get broad patents and/or one that cover fundamental concepts. Accadia for example got broad patent covering use and distribution of compressed media a concept that is to say least obvious. Whether your right or wrong patent infringement cases are expensive and often the only way to see if patent is good is to test it in court. Often large companies will go after small companies or inviduals because they chances are good they'll settle give the company money to go after larger companies. Such as system isn't good for anyone except for predatory IP companies.
Posted by unknown unknown (1951 comments )
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No software ever comes with a guarantee that it does not violate patents
It is absolutely impossible in practice to make the assertion that a piece of software does not violate some obscure patent. This is why Linus Torvalds has explicitly recommended that developers ignore patents in their work. Do not confuse the indemnity guarantees of some companies with a guarantee of non-violation. They merely say that they'll help if you're sued.

The simple fact of the matter is that Open-Source software is the ONLY kind of software which can be proven NOT to violate a SPECIFIC patent (because the source can be examined by the patent owner). If some code offends, it's usually a simple matter to replace it. So the argument can be made that ONLY open-source software is actually safe regarding patents. When you buy a piece of closed-source software from a vendor, you have NO such guarantee.

Also, the fact that a few large providers of closed-source software provide indemnity does not protect you from liability due to the use of software from a third party without such a program. How many computers today run ONLY Microsoft software??
Posted by (7 comments )
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True But...
In America, you are innocent until proven guilty. Since Open-Source is available for code scrutiny, it is far easier to prove guilt in the OpenSource arena. Thus, Linus' suggestion that developers ignore software patents is irresponsible and detrimental to the overall effort and the users of OpenSource software.

A robust Indemnity clause does not eliminate the possibility of IP infringements, you are correct. But it does guarantee that I, as a user, will not ever have to worry about being sued for posessing stolen property. The same cannot be said about users of open-source software.

With Opensource software, my option is to pay $100,000+ per year for legal protection that will not stop me from being sued, but rather will provide me with some resources when it does happen... with no guarantee of successful protection.
Posted by David Arbogast (1709 comments )
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Open-Source software
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Posted by Ubber geek (325 comments )
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Patents on software...
are retarted. Not only do that patent obvious things (im waiting for someone to patent addition in a program) but the patents office is unable to properly address software patents. The difference between say a hardware patent and a software patent is that with hardware production requires more than an problem. Anyone who has to solve a problem with regards to software could come up with the exact same thing. In other words i can come up with identical software (or parts of) without copying anything.

Patenting kills innovation.

Screw patents...
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MFFIP, Inc. announces the sale of a US Utility Patent Application designated DVR001. The disclosure includes innovations in the DVR field. Bids are being accepted on eBay, item number 5981167951.
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