There's no general answer to this because it depends on the specific circumstances. If you've seen someone else's audio editing app and you want to implement an innovative feature you first saw in that one, then I'd probably recommend very strongly to check on whether the maker of the other app has filed for a patent. If you create something totally independently, you may still be held liable for patent infringement later, but then the question is whether you actually have the resources to perform patent clearance. If you do perform clearance, you must, however, focus on what the claims--and not the titles--of potentially relevant patents cover. A patent named "Timeline display for audio waveform" could actually be very narrow. It could cover only a very particular type of display, so your own app wouldn't necessarily infringe it. But it might also be very broad, in which case it's another question whether that patent would be upheld if seriously challenged on the basis of prior art, especially prior art that was not known to the patent examiner. So I can't tell you what you should do, and I understand the question as relating to a completely hypothetical scenario anyway. I can just talk about the pro's and con's of different approaches.

Bruce, now that the discussion here has finally subsided, I want to comment on your involvement in this and I thought it was the right thing to do it here in public.

Maybe I should thank you for having discouraged people from asking questions because it saved me valuable time I got to spend on my app (I've just hired three full-time programmers and am currently interviewing others, so this project does need attention). No one paid me for this or encouraged me to this, nor do I have any reason to assume that anyone will be more likely to do business with me going forward because of this (it's actually unlikely because the people who matter to me professionally don't spend time on discussion boards of any kind). It was just that a /. guy who edited a /. op-ed of mine 10 years ago invited me to talk about Microsoft's billion-dollar Android licensing business and I didn't want to turn them down. I knew I was going to face a reasonably hostile audience and reminded /. of it.

Now, I can certainly understand that you're disappointed or, to make it sound more dramatic, feel betrayed by me. I haven't forgotten that you supported my efforts against software patents in various ways, and on my way to my computer I walked past that CNET Networks UK award for Outstanding Contribution to Software Development, which the FFII and my campaign jointly won because you, as a member of the CNET UK awards jury at the time, supported our cause and liked our work. That was in 2005, and then, in 2011, when I disclosed a then-already-ongoing working relationship with Microsoft on my blog (voluntarily; before any judge or anyone else with the authority to require me to do it asked about it), at a time when I was talking a lot about Android IP issues (patents as well as copyright) and the (limited, partial) compatibility of open sources licenses with FRAND licensing for open standards, Red Hat's dealings with patent trolls etc., you--who preferred to be dismissed by HP rather than stop criticizing Microsoft, which shows how principled you are and I admire you for it--considered me a traitor. A sellout. There's nothing difficult about it to understand. (And to make things even worse from your point of view, I'll confess to having filed for patents, PCT and immediate parallel filings in the U.S., on three inventions this year.

But this disappointment over a perceived betrayal doesn't change anything about three very important facts:

1) In reversely chronological order, let me draw your attention to the fact that I have throughout those years and especially this year done some hard and effective work on things we very likely agree on. In March, I brought to light, ahead of a key Apple v. Samsung (and Google, which paid part of Samsung's legal defense) trial, the irrationality of Apple's damages claim over 5 patents. There was no Groklaw or anyone else around to do that job. I did it. The following month I urged Apple and Microsoft not to act against software developer interests through their latest pro-patent lobby group. And this month I published an analysis of 222 smartphone patent assertions by Apple, Microsoft, Motorola, Nokia, and Samsung, less than 10% of which had merit based on final or latest preliminary results. None of all the people who criticized software patents and other issues with patents ever showed up at the countless (!) smartphone patent trials I attended. None of them ever made any effort to draw attention to what was happening there and to the political conclusions that could be drawn from the game that was being played, though the "smartphone patent wars" would have been a splendid opportunity to highlight certain issues to policy makers (for example, most of the asserted patents in the European parts of those disputes were software patents, and only a very few were deemed invalid because of subject matter). I know for sure that if I had still been running the NoSoftwarePatents campaign in recent years, I would have tried to leverage the "smartphone patent wars" for that cause.

2. You don't give me the benefit of the doubt when I actually had very good reasons--consistent with the positions I took a long time before I ever did any work for Microsoft--to believe what I believed. In that analysis of 222 smartphone patent assertions, I admitted that I would have expected more impact of all those patent assertions against Android (most of the 222 assertions were against Android, and the rest were retaliatory strikes by Android companies). My NoSoftwarePatents campaign had repeatedly warned against the strength of Microsoft's operating system patent portfolio. At times it engaged in outright Microsoft-bashing. When I saw Microsoft starting to collect patent royalties from the likes of HTC and suing Motorola, I honestly did believe that it had a strong IP position, stronger than what it has so far (there can also be a reversal of fortunes as long as disputes continue) established in court. There was a time when Microsoft had three German patent injunctions (with only six assertions adjudicated there at the time) in force and effect against Motorola's Android devices. All three patents have since been declared invalid by the Federal Patent Court of Germany (which decisions Microsoft has appealed to the Federal Court of Justice), so currently there is no enforcement anymore. Thus I adjusted my positions to the (new) facts.

While we're on the subject of long-held beliefs and positions, let me add that I spoke out in favor of interface copyrightability in April 2004 at a conference in the European Parliament that the Greens co-organized with the FFII. A speaker from the EFF mentioned that organization's work against my old friends at Blizzard Entertainment in the bnetd case, and in my intervention I argued in favor of strong copyright protection in this context. I reiterated that position on LWN in 2005, in a rather heated debate. This was before I worked against Oracle (opposing its Sun/MySQL deal), and I worked against Oracle before I ever did any consulting for Oracle.

3. There are issues--maybe few and far between from your point of view--on which Microsoft clearly defends what is in the public interest. The biggest one of those from my perspective was the fight for giving FRAND meaning. I know that FRAND is a red flag in open source circles, but at the end of the day even open source leaders like you are consumers and it would have been a terrible thing to let certain companies get away with flagrant abuse of standard-essential patents. Microsoft and its lawyers did some great work curbing FRAND abuse, and on that topic they had allies like Cisco and Intel. I'll be forever proud of having promoted--at a time when Microsoft was a client of mine, as was Oracle, which has an even longer track record of fighting against FRAND abuse--reasonable interpretations of FRAND and having opposed injunctions (including U.S. import bans) over standard-essential patents. You don't have to be excited about it, but you discredit yourself if you call someone a "troll" who has been recognized by IP professionals and academics around the globe and by companies with no stakes at all in the "smartphone patent wars" for this effort. By the way, I took clear a no-SEP-injunctions position in 2010, while Microsoft still made a submission to the FTC in mid-2011 (from which it later distanced itself by saying it was misinterpreted but if people interpreted it correctly, it would have been wrong) that said injunctive relief over SEPs is available. I was happy to see Microsoft take a clear no-SEP-injunctions position from 2012 on. It would have been a knee-jerk reaction to change my stance only to be on the other side.

It's not as simple as the question suggests. Let me quickly explain the state of software patents in those three jurisdictions (Europe, US, NZ):

Europe and NZ have an explicit exclusion of patents on computer programs as such in their statutory laws, but they do allow patents on software-powered technical inventions. This is a very difficult line to draw. NZ lawmakers agreed that smartphones should remain patentable--but 99.9% of patentable smartphone-related inventions are effectively software patents (in terms of the innovative element being in the way the thing is programmed). In Europe, the technicity requirement has been met by software that merely takes into account the resource constraints of the machine, i.e., saves screen space, processing time, memory, bandwidth, etc.

In the U.S., everything under the sun made by man is patentable and there is no explicit exclusion of software, but abstract ideas are excluded by statutory law. The U.S. Supreme Court's recent Alice decision appears to have resulted (based on USPTO and lower court decisions in recent months) in a de facto technicity requirement, except that there isn't (yet) much of a body of case law on the details of what constitutes a technological advance (while there's a rich body of case law in Europe on this question). So far, the vast majority of patents invalidated or patent applications rejected in the post-Alice world have been business method patents, not the kinds of software patents that are really interesting from a line-drawing point of view, such as patents on software that optimizes the use of computing resources (screen space, processing time, memory, bandwidth, etc.). It could be that it's presently even harder to get certain kinds of software patented in the U.S. than in Europe because of the lack of clarity of the Alice decision; it will take some time for things to settle out, but when all is said and done, U.S. patent law will most likely still be more inclusive than European (and NZ) law.

As for legislative intervention, the most recent patent reform effort was blocked by the leadership of Senate Democrats. If the Republican Party took control of the Senate after next month's mid-term elections, patent reform could go forward again.

Thanks for this question. Estimates that patent trolls cost tens of billions of dollars may be a bit too aggressive, but the damage that patent trolls do is a serious issue and I am all for meaningful patent reform in the U.S. (where the best chance for reform is probably a Republican senate majority after the mid-term elections) and I continue to promote balanced rules of procedure for Europe's future Unified Patent Court so as to make trolling less profitable. As for startups, I honestly don't know an example of a startup that got "destroyed" by patent trolls. There may be examples, but if so, no one has ever given an example. There's no benefit to a troll in destroying a startup: they just want to make money. And with respect to startups it's important to consider that some startups do benefit from patent protection (including mine, which has filed U.S. and PCT patent applications for three inventions this year). It's very difficult to say whether the bottom line (startup innovation destroyed/discouraged by patents vs. startup innovation enabled/encouraged by patent protection) is positive or negative.

The question was polite on the surface but contains a fundamental factual error: "tenure at MySQL AB ... short-lived." I became an adviser to MySQL's CEO and other executives on September 1, 2001. My advisory role ended on August 31, 2004 because I then focused on a patent policy campaign of which MySQL was a major backer (relative to company size, the most supportive one). So I seamlessly continued with MySQL, just in a different role and context. I received support from MySQL for my work on patent policy in 2004, 2005, and until the late 3rd quarter of 2006. That was more than five years after my work as an adviser started. Five years is almost an eternity in this industry, wouldn't you agree?

Also, I bought some MySQL AB shares early on and held on to them until the company was sold to Sun Microsystems in early 2008.

Then, in the second half of 2009 and the first few weeks of 2010, I was working on issues related to Oracle's acquisition of MySQL as part of Sun. That project naturally ended when the regulatory decisions had been made. It was not a project for MySQL AB anyway (MySQL AB at that point belonged to Sun, which wanted the acquisition to go through while I was fighting against it).

Based on where the case currently stands (after this year's ruling by the United States Court of Appeals for the Federal Circuit), Oracle is on the winning track with respect to API copyrightability.

I've answered the disclosure question elsewhere in this discussion. As for "anti-open source pro-patent scaremongering" please check out this analysis of 222 smartphone patent assertions (most them against Android), less than 10% of which had merit.

While I track lawsuits in detail, I never kept a log that would enable me to provide a list of events as an answer to this question. If I had to testify to this under oath in court, I would be able to say that I have done this repeatedly, that corrections were made repeatedly, and that to the best of my recollection, I have contacted every news agency or publisher when I was inaccurately described as a patent attorney.

The fact that I'm not a patent attorney has certainly not prevented IP professionals and academics from finding me a useful source of news, facts, and commentary.

Ten years ago I took the NoSoftwarePatents position. In recent years, however, I've been watching major patent disputes play out in court, and less than 10% of the assertions I watched had merit. On the one hand, this high rate of failure suggests to me that there is a fundamental problem with the system. On the other hand, it appears that bad patents can still be defeated, though it's probably harder with jury trials in the U.S. than with professional judges.

Based on the content of his non-copyrightability ruling, I wouldn't say it's "clear" that he knows Java very well. Almost all of the people who agreed with the outcome never cared to even read the decision, or if they did, they turned a blind eye to its factual and legal mistakes.

The United States Court of Appeals for the Federal Circuit overruled Judge Alsup. At the appellate hearing, one of the Fed. Cir. judges said that Judge Alsup had apparently gotten confused about the law. The current state of affairs is that Oracle is on the winning track re. copyrightability (I don't believe the Supreme Court will side with Google on tihs one), so I was right and people like you (and Groklaw etc.) were wrong.

I used to campaign against software patents, so if you had asked me that question ten years ago, I would have undoubtedly agreed with you. However, I have spent so much time in courtrooms and reading court filings and decisions over these past four years that I believe this is not a binary question. It's much more complex than that, and that's why I've adjusted my position.

This year I've filed patent applications (in the U.S. and, under the Patent Cooperation Treaty, in Europe with the option to make filings in many jurisdictions later) for three inventions of my own, so I obviously do believe that patents can also benefit little app developers--but that doesn't mean that they benefit everyone in all situations, or that across the entire software industry (from the little guys to the behemoths) software patents are net positive in terms of their effect on innovation. That's a more complicated issue.

I'd be profoundly worried if I was "good enough for Pamela Jones (PJ)" because in order to meet that criterion I'd have to take a legally wrong position on API copyrightability. There are obviously people who think Groklaw is higher authority than the United States Court of Appeals for the Federal Circuit, but I'll go with the Fed. Cir. any day of the week.

I won't dispute that "large chunks of the F/OSS community", as you put it, have taken issue with my work in recent years. However, this was just because I honestly and accurately highlighted inconvenient truths. For example, the fact that more than two dozen Android device makers pay Microsoft patent royalties on a piece of supposedly "free" software, and that others pay Microsoft patent royalties on their use of non-mobile Linux, is a fact regardless of whether "large chunks of the F/OSS community" like it. As I've said on Twitter, those billions of dollars of Android patent royalties that have been and continued to be paid show that Android isn't "free," though litigation results suggest that Android could have been free if every device maker had done what Motorola has been and continues to be doing: to simply defeat the infringement assertions in court and to work around the few that will ultimately be found to have merit.

My track record in predicting decisions is extremely good, and IP professionals and researchers the world over recognize it regardless of what parts of the F/OSS community think. With the greatest respect for the F/OSS community, I wouldn't want it to be the other way round. And to be perfectly forthright, to me those who think PJ ever proved me wrong on anything are pathetically clueless, unbelievably naive, totally brainwashed, or a combination of all of the foregoing. On the single most important issue, API copyrightability (which relates to Oracle v. Google as well as the Linux-kernel-headers-in-Android issue), the appeals court said exactly what I had been saying for years, and the opposite of what PJ and her brainwashed followers believed. (I'm pretty sure the Supreme Court won't put Google back on the winning track with respect to copyrightability.)

The idea of this online interview was to discuss smartphone patent issues involving major players (such as the ones mentioned at the top), but I'll respond to some of these questions anyway.

There's too many patents out there to ever be sure that you won't ever be sued. For example, none of the little app developers sued by Lodsys over in-app purchasing appeared to even have known about Lodsys's patents, and Apple argued that it was already licensed to those patents (because they once belonged to Intellectual Ventures).

That said, there can also be cases in which independent developers infringe because they see an interesting invention in someone else's product and decide to implement it in their own product(s) without a license.

This depends on how much of an effort you are willing and able to make. If direct competitors infringe your patents, chances are you will find out sooner or later. Then you may (but only based on professional legal advice) consider putting them on notice of any infringements identified.

Large organizations tend to be pretty patent-savvy, at least in innovative industries.

The first thing you can do is provide precise descriptions of your inventions and how they compare to the prior art known to you. Thereafter you can cooperatively answer their follow-up questions.

This is basically another version of the first question.

To be perfectly honest, if I had anticipated what my blog was ultimately going to focus on (smartphone IP disputes), I'd have called it "Mobile Patents" or "Smartphone Patents", not "FOSS Patents." But by the time I knew, it was already too well-known under its original name.

I actually agree the name is an oxymoron, but you may not have applied the same definition of "oxymoron": it means that two terms appear contradictory -- not that they necessarily are contradictory. In this case, they do appear contradictory (FOSS philosophy is irreconcilable with patent protection) but they are not in reality, with 27 companies paying Microsoft royalties on Android devices, for example. The name was brutally realistic. Let's face it, even Red Hat has paid off a number of patent trolls.