Open-source allies go on patent offensive

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pools are very common in our industry. From a patent-licensing perspective, we don't draw distinctions between open-source and non-open-source technologies."

Though it's seeking reforms, Microsoft shows no signs of dropping its support for software patents overall. "How does a small company protect itself from a bigger competitor who can clone their ideas?" Kaefer said. Patents are a better legal mechanism than copyrights and trade secrets, he said.

But in reality, small companies are at a disadvantage when it comes to software patents, said Mark Webbink, Red Hat's legal counsel for intellectual-property matters. Instead, patents tend to be used by larger companies to cement their leadership position, he said, giving Microsoft as an example. Until 1994, Microsoft had filed fewer than 300 patent applications, Webbink said, but planned to file more than 3,000 applications in 2004.

Do patents protect or restrict?
"Their interest only came along once they had their dominant position, because patents gave them the ability to restrict competition. That's what patents are about: maintaining market share and preventing others from competing effectively," Webbink said.

He said Microsoft would have been in a very different position if companies had begun seeking software patents earlier. "What if Dan Bricklin had a patent on Viscalc, or Wordstar on PC word processors, or Harvard Graphics on presentation graphics? Where would (Microsoft) Word or Excel or PowerPoint be today? These patents would have only expired in the last five or six years," Webbink said. "For some of us, our word processors would still have been a pen or a pencil on a pad."

Kaefer disagreed with Webbink's contention. "Our first patent cross-licenses were signed in the early 1990s," he said. "I don't buy the Visicalc example."

But Webbink also noted that it costs at least $5,000 for a company to review just one patent to judge whether the patent is valid and whether the company's technology infringes it. When larger competitors have thousands of patents, it becomes prohibitively expensive to conduct that review.

There's another financial incentive for big companies to keep up with patent grabs: Applying for one costs merely $15,000, but defending a patent lawsuit typically costs millions of dollars.

Defending intellectual property rights is even expensive for Microsoft. At any given moment, it is typically defending itself against about three dozen patent infringement claims, Kaefer said.

Webbink did laud Microsoft's more cooperative tone, but in a LinuxWorld keynote address, he made two requests for Microsoft to demonstrate its goodwill in patent discussions. "First, make a public, written commitment they will not threaten individual developers with patent infringement claims." Second, Webbink said, "Leave customers out of this debate. If Microsoft has intellectual property that needs to be respected, come to the commercial companies. Come to me, come to Novell, come to our partners, but leave our customers out of the middle. It is the civil thing to do."

Kaefer said the requests were "interesting ideas we'd like to explore further," but preferred to interpret Red Hat's words more generally. "We like the fact that Red Hat has made those suggestions. That signals to us a desire to have a dialogue, and we're open to a dialogue."

[Mendz]

Patents vs. Patents

If you can't beat them, join them. Now the battle becomes a race. Truly, everyone has the right to protect themselves -- open source or proprietary. Hopefully, it stays as a way to protect and not to enforce licensing for gain (translate: extortion). Remember Eolas?

[lucien64]

It's a good idea...

As soon as you have some "killer patents" in your portfolio, all those nice patents from Microsoft et al. will become worthless, as they will need to cross license with the Open Source community.

Wouldn't it be nice to own the "Windows" patent or the "Virtual memory" patent or the "server" patent or any other basic patent (not older than 20 years...).

You could simply stop the civilized world(wide web).

[lucien64]

Education on patent law

In this case, people should be educated in patent law. You cannot patent "published" items as they are then considered "prior art".

Posting "intentive" programs in a publicly accessable database would discard the patent. It's very hard to manage by open source.

[hadaso]

It is not enough to publish

Publishing is insufficient. If the fact that something was published (i.e., that there is "prior art") is not known to vthe patent examiner who then grants a patent, it becomes very expensive to invalidate the patent, so even if it later becomes well known the the patent shouldn't have been granted, it is still risky to use it unless you have very deep pockets...

Government Sanctioned Monopolies Vs. Innovation

People say that patents exist to provide companies that create things an opportunity to make money, without fear of others ripping off the idea and putting them out of business.

With software patents this changes. If Thomas Edison made the light bulb and patented it. (Which I think he did) Someone could have possibley found another way to make a light and that would have been legal.

With software patents it seems that a lot of the end results get restricted. I heard somewhere that Microsoft has a patent for a menu appearing from the bottom of the screen. That implies to me that even if my code is completely different if in the end what I do is the same Ill be litigated to the ground. I could extend this example to say providing support for a file format you didnt invent yourself, but the code to import it you wrote.

Theres another company that claimed rights to video offered via Internet (which I heard about a while back), even though so many other people toiled to build the technology.

What this boils down to is people Patenting mathematic equations, everyone with access to a compiler effectively being an inventor, and know way of knowing who has what restricted.

The system is completely overrun and only those with enough money to handle the accounting and legal research are able to benefit from the system.

Even those "little guys" who can best benefit from these software patents hardly benefit since theres almost no way to find out who is violating and its almost impossible to police and patrol. Especially for them.

So only the big guys with the patent aresenals really benefit and even most of them are only intrested in staving off others claims.

Thus we see big companies letting Linux use their patents and also why we dont see companies like Nvidia realeasing open source drivers, in fear of patent claims.

For the hundred thousandth time, get rid of software patents. Copyrights are good enough.