Open-source honchos trash software patents

BURLINGAME, Calif.--Two open-source leaders joined Linux founder Linus Torvalds in disparaging software patents Tuesday, the newest volley in a battle that pits the cooperative programming philosophy against Microsoft.

"Are software patents useful? That's pretty clearly not the case. Software patents are clearly a problem," Torvalds said at the OSDL Linux Summit here.

Torvalds wasn't alone in his opinion. He was joined in a panel discussion by Brian Behlendorf, a co-founder of the Apache Web server software, and Mitch Kapor, chairman of the Mozilla Foundation and the Open Source Applications Foundation.

Behlendorf said the way to rebut the argument that software patents provide an incentive for innovation and research investment is to imagine the world without them.

"If you could not patent software algorithms or ideas, how much of the money spent on writing software would go away? How much innovation would disappear? How much investment in that innovation would disappear? I don't think any would disappear," Behlendorf said.

Recent events have drawn attention to the intersecting realms of patents and open-source software. IBM has donated 500 patents for use in open-source software, Sun plans to liberate 1,600 for use with its open-source Solaris operating system, and a Hewlett-Packard executive believed in 2002 that Microsoft planned to attack rival open-source projects with its patents. And the European Union is debating the issue.

In recent months, Microsoft has stepped up efforts to expand its patent portfolio.

One fear is that a patent attack against an open-source programmer or customer could cripple the programming project--in particular, one without financial or legal resources. Linux, a well-protected project, potentially infringes 283 patents, according to one study funded by a company that sells insurance to customers worried about such attacks.

But patents can serve as a defensive as well as an offensive weapon. When the SCO Group sued IBM, alleging that Big Blue moved Unix technology to Linux against the terms of a contract with SCO, IBM countersued with three cases of patent infringement.

"We have to be concerned about...the use of patent WMDs. That will be the last stand of Microsoft."

--Mitch Kapor,
chairman,
Mozilla Foundation

Andrew Morton, whom Torvalds describes as his "right-hand man" in maintaining Linux, sees that patent defense playing a role. "We might suffer from a patent attack in the future. I assume IBM might lead a counterattack to help defend us," Morton said in an interview after the panel discussion.

Kapor was alarmist about the situation, predicting that Microsoft will use its patent portfolio to attack open-source software. He believes tens of thousands of software patents never should have been granted in the first place, and he likened them to weapons of mass destruction.

"We have to be concerned about...the use of patent WMDs. That will be the last stand of Microsoft," Kapor said. "If totally pushed to the wall--because their business model no longer holds up in an era in which open-source is an economically superior way to produce software, and the customers understand it, and it's cheaper and more robust, and you've got the last monopolist standing--of course they're going to unleash the WMDs. How can they not?"

Microsoft didn't comment for this article.

Silver linings
But there might be change in the software patent works, Torvalds said.

"It's a problem the open-source community has been pretty aware of for the last five years. The good news is I think a lot of the proprietary vendors are starting to see it as a problem too," Torvalds said. "I'm hopeful that that may eventually cause the solution to come, although it probably takes take a long time."

Added Behlendorf said, "IBM's patent grant was a very good thing...Hopefully there will be more of those."

Stuart Cohen, chief executive of the Open Source Development Labs Linux consortium, said he believes others will follow IBM's move.

"We do think there will be a great number of companies following suit," Cohen said.

"We think the idea of a couple thousand patents from 10 companies is a great idea."

[unknown unknown]

It wasn't so long ago that we didn't have software patents

In 1980, as a result of Diamond v. Diehr the Supreme Court ordered USPTO to reverse it's previously held position that software wasn't patentable, and grant a patent. The patent invention used a computer to determining how rubber should be heated in order to be best "cured.". The patent also included not only the computer program, but also included steps relating to heating rubber, and removing the rubber from the heat.

In the early 1990s, the Federal Circuit (the highest court for patent matters other than the Supreme Court) tried to clarify when a software related invention was patentable. The court stated that the invention as a whole should be examined. Is the invention in actuality only a mathematical algorithm, such as a computer program designed to convert binary-coded decimal numbers into binary numbers? If so, then the invention is unpatentable. However, if the invention utilizes the computer to manipulate numbers that represent concrete, real world values (such as a program that interprets electrocardiograph signals to predict arrhythmia or a program that analyzes seismic measurements), then the invention is a process relating to those real world concepts and is patentable.

What if...?

Reportedly, when Bill Gates had the "vision" for his business, he asked himself "What would happen if hardware were free?"

Maybe now it's time to ask "And what if software were free?"

[orphu]

Kapor's comment's don't help open-source proponents

Referring to software patents as 'patent WMDs' is foolish. His statements are alarmist and do not help those of us supporting open-source; a colleague of mine referred to him as chicken little. He should lay out the facts as they are - people will understand his point of view without the hysteria.

No VC Investment Without Software Patents

When building and financing several software companies over the last 24 years, the first question that I always heard from prospective investors was: "do you have patent protection?". No investment, or technology licensing with strategic partners for that matter, would have been possible (at least for this CEO) if software patents were not allowed.

It's a two way street -- yes software patents enable Microsoft to can go after Open Source, but software patents also enable the little guy (Eolas, TVI or Intertrust)to successfully go after Microsoft.

Peter Redford (TVI)

[cbazza]

Perhaps US based VCs will change their investment criteria

Thing is in Europe Software Patents are not allowed
and VCs have successfully invested in Software
Companies without having Software Patents !!! So
it is possible to profit without Software Patents.

This US Software patent requirement from US VCs is
simply for them to get a false sense of security
since you can patent virtually anything. Show me a
piece of software and I'll come up with several
possible patents for it.

Once Again: Targeting Microsoft

As much as I respect Brian et al, the issue of software patents cuts in all directions. This article once again pits Spy Vs Spy without an ounce of credible evidence. ALL OF THE MAJOR SOFTWARE FIRMS ARE APPLYING FOR PATENTS. Dang. Is it just that you can't sell the article without the juice?

Do you really think that given IBM's voracious appetite for patents that Microsoft will simply sit there and do nothing? That's crazy. Linus, Brian, do yourselves a favor and don't comment on this kind of article without making sure that it is written to get at the real problem software patents are a form of defensive cancer: as each one is granted, the immune system of business reacts with copying and replicating the behavior, thus diminishing the energy in the overall budget for this business niche.

This isn't Microsoft Vs Open Source. That's crazy. This is Us Against Ourselves.

It maybe true...

It maybe true that Microsoft seems to be singled out for the worlds hatred with it comes to all things bad with software, security, trust, customer service, dependability, copyrights, patents and agressive maners. However, you have to admit that of all of the companies that practice these business principles Microsoft is by far the worst and they have brought it on themselves.

It is like when people call Michael Jackson a circus freak. Sure that is harsh and mean, but then HE is the one that choose to make himself look and act like one. Pity for both only go so far when they do it to themselves.

Robert

whoever thought ?

Why do we have patents on software? This world is weird.

OK, lets say - you want to build a table with 4 legs and a drawer. So you take your pickup truck to Home Depot and buy a saw, some wood a few nails... oh, don't forget glue and you deffinetly need some sand paper and some wood finish. If I was a betting man I'd bet someone has to have a patent for building a "table with 4 legs and a drawer" right? If not then someone most likely has a patent for a special way to glue and screw the legs on. This is a long shot but maybe you would have to pay royalties to the old fart who patented the idea of putting wood finish on wood to make it look perty.

How does this apply? Lets check it out. I have an idea. I want to make a website with an area where people can go check out anything they want for free. This will provide information along with a community. So whats involved... First I get on my computer and search for a website name, got it. Next I find some hosting provider to get service from. I'm going to use perl for my data processing and web manangement so my hoster needs to have perl available. 10 times out of 10 its better to use Unix for anything, so I'm using Unix. Almost done, now I need to start writing my code and creating my html. Whoa! Someone already patented the idea "making a website"... crap! Even if they didn't patent the website idea someone else decided to patent the idea "creating a web community" for people to gather and share information. Thats not good for me and my idea. Oh wait.. I haven't even started to build my website yet and I'm already being sued because someone patented the idea of using a mouse and keyboard with a computer and I use Linux.

Does this make any sense at all?

Fix-It!

Whoever thought ?

From my experience, having filed and enforced about 40 software patents, the patent process does not actually work the way you described it.

In reality, it is way too expensive to obtain a patent and way too expensive AND difficult to successfully enforce it. Be prepared to easily spend five years and several million dollars to sue an infringer. And then, even after you win in a jury trial, there is a 50% chance that the appeals court will overturn the verdict.

Filing frivolous patents and suing over them? I don't think so.

[System Tyrant]

Patents

This is my opinion. There should be no software patents. You should only be able to patent a working prototype.

[Not Bugged]

Many of today's software patents must be wrong.

You state that a software patent must relate to a real process, for example the heart attack detector. So many software patents today have no such subject, so the line must have been blurred somewhere. The one click patent is tenous - but patents on a file format or a keywork in a programming language obviously have no real world "invention". How did these get through?

[CaptPat]

Easy - just optimize the data format for the algorithm...

In the heart monitor example, you would just need to have optimized the algorithm and data format together such that one depends on the other - then make a claim that the optimized data structure is part of the mechanism and you have covered the on-disk and in-memory representations of the data.

[Not Bugged]

Patents boost innovation??

In the world without software patents, companies have to compete on merit. Company A produces great new software. They have some time to sell it, before Company B can implement a copy. Now Company A has to improve their software to keep customers - but Company A has a head start and can keep ahead.

Ordinary copyright stops Company B just ripping off Company A's software. Company B has to work too, and in order to beat Company A they have to do something better or cheaper or both. The customer wins.

OK, so it takes effort. You have to expend effort to innovate. Oh dear, that effort costs - but to deny that is just lazy - wanting everything for nothing.

Bring on software patents. Now Company A has an idea and sells a program. Users use it and thanks to vendor lockin are stuck with it. Company B is legally prevented from competing for 20 years.

Company A has no incentive to do any more work on the program. There's no incentive even to fix bugs in the case where Company A is a monopoly and has the audience hung by their wotzits. Company A can just sit back and profit.

Bring on software rental. Company A gets a continous stream of income with no incentive to do anything but sit back and profit for the next 20 years. The customer is trapped, held by their data which they need to continue.

Company A wins. Everyone else loses - even Company A's developers who are no longer needed as Company A needs spend no effort innovating any more.

So how do software patents help innovation?

Remember that software patents are not like hardware patents. You can patent a corkscrew, but you can't patent the abstract concept of opening a bottle of wine. Hardware patents act like hardware copyright. Someone else can come along and patent another type of wine opening device - and there are many corskrew patents out there that do not infringe on eachother.

Software patents cover abstract ideas and can prevent anyone else even approaching the problem domain. Patents on file formats just provide legally binding vendor lockin and completely cripple competition. Anyway - how can the idea of "Using a standard DOCUMENT file format to store a DOCUMENT in" be classed as novel anyway?