May 22, 2007 12:34 PM PDT

Red Hat CEO decries software patents

SAN FRANCISCO--Software patents are slowing innovation, Red Hat Chief Executive Matthew Szulik said Tuesday.

"In the last 30 years, we've continued to see patents really being a challenge to innovation. The industry moves much faster than a remedy process," Szulik told hundreds of attendees at the Open Source Business Conference here. "There is very little empirical evidence that builds a correlation between patents and innovation."

In an interview after the speech, Szulik said software patents "absolutely" retard the pace of innovation. But he stopped short of calling for their abolition, as have some of his colleagues in the free and open-source software movement. Instead, he urged reform of the patent process.

Red Hat last week became one of several open-source Microsoft rivals targeted as infringing 235 of the software giant's patents. Microsoft would like to arrange patent licensing deals in one way or another, as it did in 2006 with Linux seller Novell. But an amicable resolution seems unlikely at present.

Szulik took pains in his speech to argue that open-source programmers aren't running roughshod over others' patents. "I've had discussions with most luminaries of the open-source industry. They have always been respectful of intellectual property, of originality and invention," Szulik said.

Afterward, he added that it would be useful for Microsoft to share not just the tally of 235 patents, but the list of patents themselves.

"No responsible vendor wants to violate patents or infringe. Any access that would allow workarounds to take place, so the respect for the innovation is maintained, is a good thing," he said, sidestepping the issue that Microsoft would doubtless prefer that others license rather than bypass its patents.

Red Hat itself applies for software patents, but said it plans to use them only defensively. Patents do have some value, Szulik said: "When the idea is original, there's no doubt it has value to developers and the organization behind them."

Szulik's patent reform agenda includes a better searchable database, a "cleaner distinction between patents and trade secrets," and a shorter review process for assigning patents.

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13 comments

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OK, so here's what sw aptents force developers to do to stay within the law
Let me see if I got this straight....

A system exists in which every software developer is responsible for every line of code or idea expressed in every claim in every patent ever published known or unknown to him and for ascertaining, through the opinion of a qualified attorney( because, in fact, as a matter of LAW, I, a non-lawyer CANNOT be said to be able to judge whether an invention infringes) whether some line of my possibly vast source code infringes said claims and FURTHER not only am I responsible for each and every claim, which essentially functions as its own independent patent, but if I attempt in good faith to educate myself about their existence, I can be fined treble damages because, as a matter of law I cannot, as I said above, reach a conclusion one way or the other, however just having looked at some or any or one of the hundreds of thousands of patents I am responsible not to infringe is sufficient to have treble damages awarded to the patent-owner, should I be found guilty of infringement.

There, did I get that all right?

You can see why software developers despise software patents and are adamant that if the country continues to act AS IF they they had been enshrined into law, which they have not, that software development will for all intents and purposes be brought to a standstill, or as one observer put it, if patents had been permitted earlier, we would still be in generation one of word processing and spreadsheets.
Posted by asdf (241 comments )
Reply Link Flag
well ...
asdf asked this question:

"A system exists in which every software developer is
responsible for every line of code or idea expressed in every
claim in every patent ever published known or unknown to him
and for ascertaining, through the opinion of a qualified attorney(
because, in fact, as a matter of LAW, I, a non-lawyer CANNOT be
said to be able to judge whether an invention infringes) whether
some line of my possibly vast source code infringes said claims
and FURTHER not only am I responsible for each and every claim,
which essentially functions as its own independent patent, but if
I attempt in good faith to educate myself about their existence, I
can be fined treble damages because, as a matter of law I
cannot, as I said above, reach a conclusion one way or the other,
however just having looked at some or any or one of the
hundreds of thousands of patents I am responsible not to
infringe is sufficient to have treble damages awarded to the
patent-owner, should I be found guilty of infringement.

There, did I get that all right?"

Uh, yeah. Sounds like you nailed it pretty well there.

Bottom line today (according to some major players like M$):
you're guilty. If you try to prove your innocence, it just proves
you're more guilty (like 3 times more guilty to be exact). Being
as you're already guilty, you don't even have a right to know
specifically what your guilty of. Welcome to Amerikka, land of
the ME and home of the SLAVE.
Posted by Dalkorian (3000 comments )
Link Flag
He knows not what he asks...
Szulik said that he would like "Microsoft to share not just the tally of 235 patents, but the list of patents themselves."

If I were Microsoft, I would take them up on that request, since the penalties for infringing on a patent are far greater if one does so knowingly.

I think almost everybody can agree that, by and large, patents are "evil". On the other hand, there have been real cases where a company creates something innovative and a competitor steals the idea. Microsoft and some of its competitors certainly know this all-too-well.

I do have to agree with Szulik on the concern that patents hinder innovation to some extent. I've seen a number of examples in my own work where the best solution was avoided due to patents and licensing fees. So, yes, we need some kind of patent reform.

Paul
Posted by paulej (1261 comments )
Reply Link Flag
The biggest problem is...
The current state of patents may be bad, but a bigger problem is Microsoft itself. They are greedy and attack everyone.

Most other companies like Google actually work in the IT ecosystem in a positive way to benefit others which benefits themselves

Microsoft is literally a virus and they destroy the IT environment around them by stifling innovation that challenges their paradigm, not to mention all the viruses that their products allow into your computer. They attract their own kind.

IBM, Google, Yahoo, etc are a positive in the IT industry and work well in their ecosystem.

One of these types of companies have a future.
Posted by t8 (3716 comments )
Reply Link Flag
What?
Google acts to benefit themselves. Wheter they benefit the environment or not is irrelevant to their business plans. Same thing applies to MS and any other large company.
IBM in particular hasn't shown to act disinterestedly in about four decades and nor they should. They have an obligation to their shareholders to act in their own interest. If acting to the benefit of the market is to their benefit, then they should do it. Otherwise, they shouldn't. And if you think MS is not acting in their best interest, then you are implying not that they are greedy, but that they are stupid.
If you hate MS because youw Windows crashed, that's your problem. But your claim that "MS is evil, they just want to destroy the world" doesn´t hold water.
Microsoft has rarely sued anyone based on their vast patent portfolio (so far, they've only done as countersuit to inbound patent disputes AFAIK), whereas IBM did many, many times attack other companies to defend their patents. Now, how does that support your conclusion?
Posted by herby67 (144 comments )
Link Flag
What a tool
Come on, either software patents are wrong or they're not. Take a stand. Don't talk about wishy-washy "reform." The problem with software patents isn't lack of a searchable database.
Posted by solrosenberg (124 comments )
Reply Link Flag
Not so simple
> either software patents are wrong or they're not
Why? Why can't some patents be good and others bad depending on their real innovation, non obviousness, and related research effort?
If somebody had to do directed research in an area for two years to come up with a solution to a problem, they should be granted a patent regardless of what area of research it is about.
If they just come up with an idea, or just solve a problem in a straightforward manner by just applying some logic, they shouldn't, regardless of them being the first ones to solve the problem.
If patents are supposedly there to promote research, then let's grant patents to solutions that actually involved research (see my other post).
Posted by herby67 (144 comments )
Link Flag
"Software patents...
... are slowing innovation (So, why not GO BOLDLY AT WARP SPEED WITH OS/2-Huh!), Red Hat Chief Executive Matthew Szulik said Tuesday..."; just how is so when the law (being on Citizen Software Patents side) clearly states that "Software Patents for Methods of Doing Business?A Second Class Citizen No More:

<a class="jive-link-external" href="http://www.tms.org/pubs/journals/JOM/matters/matters-0012.html" target="_newWindow">http://www.tms.org/pubs/journals/JOM/matters/matters-0012.html</a>
Posted by Commander_Spock (3123 comments )
Reply Link Flag
Solution for the patent problem
Software patents should be no different to other patents: they should be there to foster innovation and only if they do so.
Now, how can software patents foster innovation? The same way other patents can but seldom do: by incenting research.
So a patent reform is needed to favor patents that foster research and disincent patent leeches. Spontaneous ideas should not get any protection as they do not involve any research. Just ideas that involve directed research effort and that are not obvious should be protected by patents.
Here's my proposal for such a reform:

In order for a patent to be granted, the company or individual has to apply for patent protection for their ongoing research in advance.
Say you are researching ways to improve fuel milage by adding chemicals to the combustion mix (or whatever). You declare exactly that in advance to the patent office, and that declaration is public, everyone can see it.
If you come up with a solution to the problem, it cannot be patented for a year. If the solution was obvious, someone else that saw your original application will do it first, so you lose your ability to patent. If it was not obvious, you will be able to request a patent before anyone else comes up with it.

That way, only patents for stuff that requires directed research effort ad are not obvious can be granted. And that's valid regardless of the solution being software, chemistry, biotech or whatever.
Anyone can find hoes in my proposal?
If not, I'll patent it ;-)
Posted by herby67 (144 comments )
Reply Link Flag
Waaah! I want something for nothing!
I want to use others innovation without them getting anything for it. Waaaa!!!

Commie.
Posted by smilin:) (889 comments )
Reply Link Flag
Software Patent Self-Exams are Unrealistic
There are many reasons a software company might wish to avoid checking existing patents for infringement:

1. There are too many patents to effectively search them all.
2. Patents are complicated and opaque and hence difficult to determine infringement.
3. Researching patents can actually open a company to additional liability and damages.
4. Microsoft doesn?t do it.

See my discussion on this topic at <a class="jive-link-external" href="http://www.devtopics.com/are-software-patent-self-exams-realistic/" target="_newWindow">http://www.devtopics.com/are-software-patent-self-exams-realistic/</a>
Posted by DevTop (21 comments )
Reply Link Flag
A Simple Solution!
Consider the "Big Bang Theory" or whether there was indeed a Creation... Now, consider the births and deaths of stars--establish a law that removes the burden of fines to the developer whose patent method obsolescences or bettered the competing patent method (the more powerful "star" devours the dwarf "star" or unless, acting like a shoal of piranhas (Open Source) acting in concert devours the larger victim) the arena being the market place decisions representing the open space that provides the arena for the stars, planets, asteroids to collide. In other words let the natural forces (nature's laws, market forces...) decide on the software patents issues!
Posted by Commander_Spock (3123 comments )
Reply Link Flag
it's not the specific patents that are the problem
it is the vague ones that infinitely scale their discovery so that any similarity of it is a patent violation.

I like when Apple tried to patent transparent / Translucent windows/borders in a OS; As if glass wasn't transparent.

I think that a 5-year limit on patent infringements should go into effect, you should have a 5 year term to declare your patents are being infringed upon so companies can't sue for millions on a patent that is only worth thousands.
Prove in court that you had no prior knowledge of patent infringement from both parties involved.

Patents were designed to keep inventors from having their inventions copied.

Now software is used to turn companies into monopolies.
Posted by ColdMast (186 comments )
Reply Link Flag
 

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