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On Software Patent Lawsuits Against OSS 400

Posted by Zonk from the bad-day-bad-day dept.
Bruce Perens writes "We've warned you for a decade. Now the monster has finally arrived: patent holders are filing suit against OSS developers." From the article: "We should not be confident that we will continue to have the right to use and develop Open Source software. A coordinated patent attack by a few companies, or even one large company, could completely destroy Open Source in the United States and cripple it in other nations. Funds and patent portfolios that have been established to help defend Open Source would not be sufficient to defend it. Only legislative changes to the patent system can fully protect Open Source and maintain it as a viable source of innovation for our future."
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On Software Patent Lawsuits Against OSS More

On Software Patent Lawsuits Against OSS

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  • Protect Innovation (Score:5, Insightful)

    by cloudkiller ( 877302 ) on Friday June 30, 2006 @10:07AM (#15635881) Homepage Journal
    "Only legislative changes to the patent system can fully protect Open Source and maintain it as a viable source of innovation for our future." Legislative changes to the patent system are needed to protect innovation not just the Open Source community. How can anyone continue to innovate if they have to wade through an endless array of patents just to see if their idea isn't covered by some ridiculous patent.

    • Re:Protect Innovation (Score:2, Insightful)

      by Hoolala ( 976766 )
      Patent reform is easier said than done. What would the new model be? There are many competing interests. A patent lawsuit may be the only option a small guy with an idea stolen by a big corp. On the other hand, OSS projects could be threatened by greedy patent trolls just as we are seeing now. A blanket denial of software and business models patents is not necessarily the answers. Where would the line be drawn and how can one differentiate what is/should be obvious to what is truly innovative?

      • Re:Protect Innovation (Score:5, Insightful)

        by mpe ( 36238 ) on Friday June 30, 2006 @10:33AM (#15636083)
        A patent lawsuit may be the only option a small guy with an idea stolen by a big corp.

        How many such cases have happened in the last 5-10 years?

        • Re:Protect Innovation (Score:4, Informative)

          by peragrin ( 659227 ) on Friday June 30, 2006 @10:58AM (#15636272)
          againist MSFT? hundreds. Eolas comes to mind. of course most simply settle for a couple hundred million.

        • Let's show this by historical example.

          In the 19th century, there was heavy competition for the implementation of the telephone system. Edison wanted to enter the market. But Bell had already patented the system! What Edison did, then, was to invent a new way by which sounds can be inputted and outputted, and using his own, new system, managed to challenge Bell. Hence, patents in this case directly drove innovation.

          But what if Bell had recieved a software patent? Then the patent would not cover, as in this c

      • Re:Protect Innovation (Score:5, Insightful)

        by RexRhino ( 769423 ) on Friday June 30, 2006 @10:45AM (#15636173)
        A blanket denial of software and buisness model patents are EXACTLY what is needed. Patents weren't supposed to protect the "idea" of the little guy, because ideas were never supposed to be patented. Patents were about a company that spent a lot of money developing a specific technology to recover the financial cost of the development if other people are making money on the technology. If it is an "idea", or software or a buisness process, there is no real cost of development (remember, people don't patent code, the patent the concept with software patents. It would be like me patenting a time machine, without providing a mechanism for how to actually time travel).

      • Re:Protect Innovation (Score:5, Insightful)

        by Bruce Perens ( 3872 ) <bruce@perens.com> on Friday June 30, 2006 @10:49AM (#15636207) Homepage Journal
        Get out of the "stealing ideas" mindset. You can steal implementations, and in the case of software, those things are covered by copyright and thus the victim can use the law against you without resorting to patents. The problem with "stealing ideas" is that lots of people have the same idea independently. And if you look closely at the enabling law of the patent system, you're not supposed to be able to patent ideas at all. Unfortunately, with software, that part of the system has failed.

        Bruce

      • A patent lawsuit may be the only option a small guy with an idea stolen by a big corp.

        This never happens.

        You know the story: inventor invents "brilliant" new software (for example, let's say using a "hand held device" to "scroll through" a "list of currently running programs"), and wants to market it. Another company decides, "great idea," nicks it from him, and he threatens to sue. "Ah," the big companies say, "we have 5 patents that you cannot develop your software without!" Mr. Small Inventor is screwed.

      • Re:Protect Innovation (Score:3, Insightful)

        by g2devi ( 898503 )
        > A patent lawsuit may be the only option a small guy with an idea stolen by a big corp.

        Can ideas be stolen? Seriously, I can't tell you the number of times I've come up with a unique idea "that could never be copied" only to find out a few years later that someone else has discovered and implemented exactly the same idea, down to the details.

        Each of us builds on the knowledge of those that come before us and sometimes the time is just right for an idea to be discovered. Quantum mechanics, the air plane,

    • Turn it around... (Score:3, Interesting)

      by ScentCone ( 795499 )
      How can anyone continue to innovate if they have to wade through an endless array of patents just to see if their idea isn't covered by some ridiculous patent.

      or,

      How can anyone continue to attract the investment they use to hire and pay software developers in a not-yet-making-money startup if, after investing all of that money, someone else can just skip the investment part and go right into making money off the finished work? If you have no chance of some much larger (or just slipperier) operator sim

      • Re:Turn it around... (Score:5, Interesting)

        by Bruce Perens ( 3872 ) <bruce@perens.com> on Friday June 30, 2006 @10:53AM (#15636229) Homepage Journal
        Well, patents are a great mechanism for lying to investors. Every one says you have a monopoly on something, and usually you don't. Indeed, 95% of patent claims have documented prior art in any college library these days. And the last thing any new company that makes real products needs is litigation. So, maybe the solution is for investors to wise up.

        Bruce

      • Re:Turn it around... (Score:4, Insightful)

        by Cato ( 8296 ) on Friday June 30, 2006 @11:09AM (#15636358)
        You're omitting a huge step between having the idea and delivering a product - there's the whole process of specifying requirements, designing the product in detail (thousands of decisions, not just the part covered by a patent), developing it, debugging it, testing it, writing documentation, training support people, training pre-sales and sales people (if needed), etc.... All of this takes a huge investment, resulting in the core deliverables (software and documentation) being protected by *Copyright*.

        Software patents are really only useful to act as a roadblock to other companies, and in particular for patent trolls - they don't stop a truly motivated competitor from replicating your software product in a cleanroom environment, as long as they can code around the patents, which should virtually always be possible.

        "Making money off the finished work" in this scenario would imply taking the copyrighted software and illegally selling it - copyright protection is more than enough to stop this. Patent protection is simply unnecessary for a thriving software business, as long as it is reasonably diligent in its use of copyright and trade secret protection.

  • Patent Reform (Score:3, Informative)

    by Reverend528 ( 585549 ) on Friday June 30, 2006 @10:07AM (#15635886) Homepage
    It costs too much money to buy patent reform from congress. The only true path to Patent Reform [wikipedia.org] involves reforming the USPTO into a pile of rubble.

  • Not in Europe! (Score:3, Insightful)

    by Anonymous Coward on Friday June 30, 2006 @10:16AM (#15635962)
    Maybe this is a good time to move projects from bloated Sourceforge to Berlios (in Germany).

    Just saying.

  • Anonymous development model (Score:5, Interesting)

    by RyanFenton ( 230700 ) on Friday June 30, 2006 @10:16AM (#15635965)

    If the big fears come to pass on this, perhaps an anonymous development model could be made using currently-developing P2P encryption models. Regardless of if software patents are a political problem that may or not be fixed in the long run - the idea that a good person CAN ethically have need to become anonymous in their development of software may change the debate. Right now, the public concept of anonymous development is left to virus developers and other black-hat-types - it would be interesting if your child's educational software, or in this case model railroad software had to be developed behind the veil of secrecy.

    Ryan Fenton
    • Working anonymously has always been a basic right of writers, and nobody questions a book being written under a pen name. [wikipedia.org] Why should writers of software be treated any differently, especially on the Internet where it's fully possible to know someone only as "John_D," "CaptKirkFan1969," or even something as ridiculous as my own?
      • Because some people want some g-damn credit for their work. Spending umpteen hours of off-work time creating a piece of software (or contributing to) for the better of all that choose to freely use said software deserves some accolades.

        Why do you think that virus writers get caught? Usually it's their own hubris and desire for credit that outs them in the end.

        And OSS writers SHOULD get credit, with big, fat, annoyingly large banners for their contributions. Patents forcing them underground would be a sha
    • If they can't get the developers, they can get the users.

      Patent violation isn't a creation issue, its a use issue as well.

      The best solution is for individual developers to get a patent on something stupid and use it as a form of nuclear detente. If they can't do it, grant the copyright to an organization like EFF that can handle patent cross licensing. Until the whole concept is thrown out, writing software and not being armed with something you can threaten back with is like walking into a minefield.

      And th

    • I can see two problems with this idea:

      1) If a piece of software is developed anonymously then how can you be sure that someone didn't come along and copy code into it from a piece of proprietary software? Some nefarious individual could (anonymously and secretly) copy their code into a piece of open source software with the express intention of then suing users of that software in the future for copyright infringement.

      2) Even though the code is developed anonymously, how does that protect me, as the user

  • So the end result is that... (Score:5, Insightful)

    by MosesJones ( 55544 ) on Friday June 30, 2006 @10:17AM (#15635972) Homepage

    All of the Open Source software will be written outside of the US where US patent law doesn't hold. And as Open Source people aren't SELLING the software into the US its going to be tough to sue them.

    This would of course be bad news until we think that Linus and Alan Cox aren't from the US anyway and Open Source is really taking off in European Govs.

    Come on folks, move to Europe, claim political asylum.

  • Revolt (Score:5, Insightful)

    by DoofusOfDeath ( 636671 ) on Friday June 30, 2006 @10:17AM (#15635975)
    I'm NOT advocating this, but I'm curious: just what does it take to get people to revolt?

    I hear story after story about Americans losing, or put at risk of losing, their freedoms. Freedom to create (stifled by patents, copyright, trademark). Freedom from federal income tax (which is alleged to never have been legislated). Freedom from unreasonable search (illegal NSA wiretaps). Gerrymandering and political lobbying that reduce the voting power regular citizens. Etc.

    Do we just grumble about these things and suck it up? Are we suffering from how-to-boil-a-frog syndrom, as the majority of German citizens did when the Nazi party seized power before WW2?

    Don't get me wrong - I am *not* advocating violence or illegal activity. But I am curious about why peope haven't gotten pissed-off enough to revolt.

    • Re:Revolt (Score:5, Insightful)

      by Daniel_Staal ( 609844 ) <DStaal@usa.net> on Friday June 30, 2006 @10:34AM (#15636088)
      The average daily life of the average American hasn't been affected yet.

      To get a revolt, you need people free enough to plan one, and who have a specific, tangible, grudge against the current powers that be. The current trend in the USA is to slowly erode the first without affecting the second. As long as the illusion is maintained that the next election could 'fix' things, you can keep this up right until the point at which the populace has no effective freedom, at which point you can do whatever you want.

      The next step as freedoms diminish is to start reducing the size of the middle class: those who have money and time for lesuire, but do not have any power in the system. The powerful don't revolt: they run the place, and peasents don't revolt, they are too worried about their next meal. The only ones you have to worry about are those in between. Watch for further economic reforms that favor big business.

      • Re:Revolt (Score:3, Insightful)

        by Red Flayer ( 890720 )

        The next step as freedoms diminish is to start reducing the size of the middle class: those who have money and time for lesuire, but do not have any power in the system.

        The next step? Poverty rates through 2004 [census.gov]. This reflects people moving from the lower middle class, as well as higher population growth in the lowest income ranges.

        Higher gas prices? Reduce the discretionary income of the middle and lower classes disproportionately. How about food, also excluded from inflation statistics? Higher gas pr

    • Re:Revolt (Score:3, Insightful)

      by mblase ( 200735 )
      I'm NOT advocating this, but I'm curious: just what does it take to get people to revolt?

      Take away our bread and circuses.

    • Re:Revolt (Score:5, Insightful)

      by kidtwist ( 726601 ) on Friday June 30, 2006 @10:45AM (#15636174)
      I don't have time to answer you. My favorite television show is on now.

    • Americans dont really love freedom (Score:5, Insightful)

      by Anonymous Coward on Friday June 30, 2006 @11:43AM (#15636663)
      Americans CLAIM to love freedom. But we really love convenience. We pay lip service to wanting lots of choices, but so long as the few choices we have are accessible and provide immediate gratification, why should we care about some other clunky alternatives that we don't have?

      So Microsoft spies on us while we use windows. So what? I don't actually notice. It doesn't inconvenience me in any direct way. And windows works the way I expect it to. I don't have to learn nearly as much as I do in order to use Linux, and all my games play on it out of the box. Oh, and I don't even have to install it...it comes on my computer. Convenience all around, so that's where my money winds up going.

      The list of candidates to vote on is usually kept quite small. Sure, the two party system eliminates options, and our method of voter tallying is statistically absurd, but it is so darn CONVIENANT. For most of us, there is an obvious choice...the party choice. I don't have to bother listening to platforms or researching relevant issues...I just vote for my party and suddenly I am a good patriot with a license to complain. Isn't convenience wonderful?

      Sure airport searches are a bit inconvenient if I am the one who gets searched...but the odds are low. Usually its some other guy who gets searched, and that makes me feel safer. Maybe they record and traffic my personal information, but I don't really feel any sting for that (for the most part, I don't even know its going on). I can fly anywhere and feel like my interests are safely guarded by the government. The convenience of this feeling far outweighs the minor inconveniences of the occasional long wait to get in the airplane.

      So I can't copy DVD's. Oh well, I guess I will just pay them again. An extra fifteen bucks won't kill me. Breaking the law and risking punishment just so I can make personal backups is just a bit too inconvenient. Region encoding? What's that? I've never felt it's sting, because I buy my DVD's at Wall mart...not from some weird store way out in Europe...the shipping time alone is just too much, not to mention the extra cost. What I have got is convenient enough, and the added convenience you geeks talk about seems a little superfluous and way too much work to obtain. Nah, I like things the way they are.

      So what if my cell phone calls are monitored and my position is tracked? So what if the providers are overcharging a bit because they can get away with it? Cell phones are an exemplar of convenience. So what if my internet usage is tracked and recorded? All they would ever do is prevent me from breaking the law anyway, right? That's ok with me. So long as the only people who get their rights abused by all this monitoring and information-tracking are a few social rabble-rousers, and not me, there really is no problem. I like all this convenience much better than the pains of actually making myself aware of what's going on and making sacrifices to ensure my continued privacy and freedom.

      Power is a lot of work to keep hold of. Far too inconvenient. Let the politicians and big corporations fight over it. I am better off without any of it at all. Good riddance.

      And God bless America!

    • Re:Revolt (Score:3, Insightful)

      by Lord Ender ( 156273 )
      Are you that dense? We ellected the people who pass these laws. There is nothing to revolt about.

      Freedom from income tax? Our constitution says congress can tax us to raise an army.

      If they tax our tea and legal documents AND stop us from voting, then we will revolt.

      The closest we have come to having no voting rights was the last predential ellection, where the liberal parts of Ohio had far too few voting booths (and several-hour waits to vot) while the conservative parts of the state had no lines at all to

      • Re:Revolt (Score:5, Informative)

        by Beryllium Sphere(tm) ( 193358 ) on Friday June 30, 2006 @12:37PM (#15637136) Journal
        >The closest we have come to having no voting rights was the last predential ellection, where the liberal parts of Ohio had far too few voting booths

        Closer than that: http://www.gregpalast.com/detail.cfm?artid=385 [gregpalast.com] . Pick a largely African-American district near a military base. Do a mass mailing there. Mark the envelopes "Do not forward". Collect the bounces from the addresses of African-Americans who are in Iraq. Build a spreadsheet of them. You now have the ability to walk into the election offices and say that everyone on the list doesn't really live at their registered address. If the would-be Democratic voter walks into a polling station, they can still fill out a provisional ballot. If still overseas, their absentee ballot will be treated as invalid and simply not counted.

        You also have no voting rights if someone opaquely controls the counting of the votes.

    • Re:Revolt (Score:3, Insightful)

      by flibuste ( 523578 )

      History has its own examples that it usually takes too much as you pointed out with the Nazi experience in Germany.

      Add to it that north americans are not really the kind to "revolt" as many european citizen would do. As an example, many laugh at countries like France for their union and endless strikes, but that's how changes in politics happen. One of the problem I see here in NA is that you can get sued for breathing air. This scares enough people to keep the mob in control.

      Legal threats, fear instilled

  • Test of obviousness (Score:5, Insightful)

    by roman_mir ( 125474 ) on Friday June 30, 2006 @10:20AM (#15635994) Homepage Journal
    Red Hat should pursue the judgde to conduct a simple test of obviousness of the patent:

    Invite a bunch of new comsci grads who are unfamiliar with the patent and ask them to solve the specific problem in hand: mapping relational data to objects and see what they come up with. I am certain that most of them will have some sort of an automated object mapper.

    I have 'invented' this technique a few times over the course of my working life in different projects. 10 years ago, 7 years ago, 4.5 years ago, each time for a different platform and each time it was fully automated (the last one was called a Persistance Facade, it was a Java implementation with objects being populated by reflection from database and database being populated from objects, everything was done automagically with an XML file that drove the conversion, and this XML file could also be generated automagically either from the DB or from the objects.)

    It is just a ridiculously obvious idea and anyone familiar with basics of programming (not even necessarily OO, flat structures can be populated the same way and I had to do that 10 years ago in C,) and databases should be able to come up with some sort of a workable solution in quite a short time period.

    I bet 99.99% of all patents are just as obvious for the people trained in the field in question.

  • Soon, all development will come from outside USA (Score:5, Insightful)

    by denis-The-menace ( 471988 ) on Friday June 30, 2006 @10:22AM (#15636004)
    -Software Patents will make it impossible to create a non-infringing application unless you are as big as MS or IBM.
    -Patent litigation will become part of the development process.
    -Overseas competition will be able to release their version much sooner because they don't bother playing the SW patent game.

  • Would you move to a free country? (Score:4, Interesting)

    by DoofusOfDeath ( 636671 ) on Friday June 30, 2006 @10:25AM (#15636020)
    Just curious: if OSS basically became illegal (either by civil or criminal law) in your home country, would you be willing to move to some other country where you could be free to create?

    Would you move from America to...
    Canada? (Close, same language, but America's bitch in IP legislation issues)
    Sweden? (Far away, different language, more intellectual freedom)
    China? (Farther away, different language, sometimes repressive and corrupt government)

    What is this kind of freedom worth to you?
    • I seriously doubt someone would give up their life in the US just so they can write OSS. What's more likely is that the contributors to an OSS project will be "Anonymous", in the sense that the identity of the contributors cannot be traced to a Country. Couple that with moving the OSS source to a non-US location, and it will make it incredibly tough to for US companies to sue OSS.

    • Re:Would you move to a free country? (Score:3, Insightful)

      by Anonymous Coward
      With the exception of China, which is worse in every respect except patent law... yes, yes I would.
      I was born and raised in the US. I've lived here all of my life, and I like it here. I spent alot of time and energy learning how to think, write code/OS's/programming languages etc. So that I could write better software and put it in the hands of the world because it's fun, and I'm tired of seeing the crap software being used by the masses.

      If I have to move to Finland to be free to write code, I might just do

    • Re:Would you move to a free country? (Score:4, Interesting)

      by darnok ( 650458 ) on Friday June 30, 2006 @06:41PM (#15640136)
      Interesting question.

      My partner and I are at the point where we can see retirement in the next several years. At that point, neither of us want to keep living in a house in the suburbs, so we're talking about where we want to spend the rest of our lives.

      *If* we move overseas, which is maybe a 20-30% chance, then I'd lean strongly towards an OSS-friendly country. I'd like to think I can spend a sizeable chunk of my retirement time writing and/or improving FOSS, because I've done OK out of using it and would like to give more back than I have to date. If doing that means I have to worry about infringing patents etc., then I'll give serious thought to what I'll have to do to remove that concern, and if we're already planning on moving countries anyway, finding a non-software-patent regime starts to become a significant factor.

      For what it's worth, quite a few of my work buddies are thinking along similar lines. It's conceivable that this could result in a noticeable brain drain of still-highly-productive IT staff in their 40s-50s-60s over the next several years, and that might start to have a financial impact down the track. Even us taking our retirement dollars out of the country and spending them elsewhere would make a dent in local economies.

  • Key point (Score:4, Insightful)

    by tygerstripes ( 832644 ) on Friday June 30, 2006 @10:27AM (#15636030)
    To my mind, the key point in TFA is:
    Software is unique in that it is protected by both copyright and patents, other industries have one or the other and that is sufficient for them.


    This really seems to me to be the core of what's wrong with US (and soon, possibly EU, according to the article) IP law.
    If it is a technical invention - a new technology - then you file a patent. That way you can profit from your innovation.
    If it is something creative - something that anybody could have done, but you did it in your particular way and thus created something unique - then you are protected by copyright and thus are legally identified as the creative source, so you can be credited for your creativity.

    Software falls between the cracks of the law, and so is protected by both. You have a category of products that you can't mimic without paying for it and that you can't replicate period. As far as I can see, this is only an issue because that which is protected by copyright - information - is now completely free to reproduce thanks to technology.

    So, the whole problem boils down to exactly the same thing as music and DRM. It's just that the litigiousness of the US has brought it rapidly to a financial and legal head there. The only way it can be resolved while maintaining society's appetite for innovation is to come up with a new way of classifying the rights of the originator of information - be it technical or creative.

    I am not the person to come up with that solution, but I do wish people would stop banging on about the brush-fire conflicts and start trying to figure out a solution to the cause of the problem.
  • This one is really bad.

    Almost every serious OO developer who starts working with databases comes up with their own object-relational mapping implementation.

  • Our hope: making influencial people depend on OS (Score:5, Insightful)

    by DoofusOfDeath ( 636671 ) on Friday June 30, 2006 @10:33AM (#15636082)
    Some companies create software that they want to patent, but many more companies are starting to actually *use* FOSS.

    Apache, Python, Perl, Samba, etc. Public institutions as are becoming increasingly dependent on FOSS as well: computer science / physics departments use Linux. City governments are playing around with OpenOffice.org and Linux. Even various military systems are now based on a complete FOSS stack: Linux, GCC, etc.

    So here's my hope: the politically influential organizations that *use* FOSS will out-muscle the Microsofts and IBMs of the world who advocate for software patents. And when a showdown occurs, software patents will go away.

    Another possibility is that India and China will start producing far more softare patents than the US does. I think we'd see the U.S. government take a far weaker stance regarding international IP treaties.
  • A coordinated patent attack by a few companies, or even one large company, could completely destroy Open Source in the United States and cripple it in other nations.

    No. Absolutely wrong.

    Such a coordinated attack would cripple commercial uses of open source software.

    We mere guys-in-the-trenches would carry on writing and using itas though nothing had changed.

    And yes, before someone says it - That might well make us "criminals"... In the same way speeding, copying CDs, "experimenting" with weed in c

    • Re:Wrong, wrong, wrong! (Score:5, Insightful)

      by CompSci101 ( 706779 ) on Friday June 30, 2006 @10:54AM (#15636238)

      You're absolutely wrong, and clearly didn't read the article:

      The other current patent attack against Open Source faces Bob Jacobsen, the developer of the JMRI model-railroad control software. Jacobsen gives his work away, with full source code. He is faced with an invoice for over $200,000 from Michael A. Katzer and his company KAM, $19 for every copy of JMRI that Jacobsen gave away. KAM filed a patent making a broad claim covering the transmission of model-railroad control commands between multiple devices in 2002. Again, there's prior art: this technology probably goes back to the MIT Model Railroad Club in the 1960's. But Jacobsen could easily go bankrupt in defending himself or paying KAM's claim. Because the cost of a patent defense is many times the net worth of the typical Open Source developer, it's difficult to see how there can be justice for the little guy.

      It seems very much like a hobbyist who's sharing his code with the rest of the world is being royally fucked by some vested commercial interest. Much like any other OS project could be. Wanna run the risk writing code that somebody making money off the same thing will get pissed off and decide to sue you personally for millions of dollars because you're fucking with their business model? No?

      It doesn't matter that we're all criminals already for other things anyway -- that's part of a greater problem in our government and not related to the problem at hand. This is something that should have been nipped in the bud, as Perens says, a decade ago.
      C

  • What if an OSS project comes up with a technique or technology first? What if an OSS project comes up with an idea, but never pursues a patent; then a company comes along later and attempts to patents the same idea not knowing the OSS project got there first?

    When the company attempts to assert patent rights over the OSS project, can the OSS project invalidate the patent by proving they came up with the idea first?

  • Tech will go on, but the people? (Score:5, Insightful)

    by Wylfing ( 144940 ) <brian@NOsPAm.wylfing.net> on Friday June 30, 2006 @10:40AM (#15636139) Homepage Journal

    You can toss a big boulder into the path of a river and -- guess what -- the river doesn't stop. It routes around the problem. That is what open source projects will do. Patent suit says stop using method X, well we just invent method Y to do the same thing without infringing the patent. Project goes ahead. You cannot stop this with patent suits.

    In fact, this is not endemic to open source; it happens in all areas. If you block something with a patent that people want bad enough, they will route around it, whether legally or illegally (c.f. the motion picture industry). This often leads to quality patented inventions falling into disuse because the patentholder is a bully. Something else is quickly invented to fill the same market niche and well all go happily on our way.

    Now of course the trick is that rational settlements may not be possible, e.g., ACME Patent Troll Co. sues Poor Developer Harold for $1 billion in damages and won't settle for his ceasing to use the method. Even if it turns out favorably for PDH, he could be bankrupted by the proceedings. That is what we need legislation about -- the bullying of persons and families by giant corporations with near-infinite legal funds, where the cost of defending against their allegations by itself is a de facto award of damages: trial and conviction without due process.

  • OSS software is like the water that's seeped into the rock. (The rock being the IT and software developemnt world.)

    Freeze the water, shatter the rock.

    • End Game: M$ Wins. (Score:4, Insightful)

      by twitter ( 104583 ) on Friday June 30, 2006 @11:38AM (#15636619) Homepage Journal
      OSS software is like the water that's seeped into the rock.

      There are plenty of big dumb companies who will be happy to license your ability to use and improve free software. M$ and IBM and other companies pushing for software patents will be happy to claim ownership of everyones' hard work. That's what this is really about, isn't it?

  • Problem seems to be (Score:3, Interesting)

    by MECC ( 8478 ) * on Friday June 30, 2006 @11:03AM (#15636311)
    The problem seems to stem from applying laws made to deal with non-abstract tangible mediums that are not very tractable to software, a non-abstract medium which is *highly* tractable. Software needs a unique set of laws, since its distinctly different from both material property or intellectual property. It could be argued that software is one of the most tractable of all mediums, other than pure imagination.

  • Letter to your Senator (Score:3, Informative)

    by Logger ( 9214 ) on Friday June 30, 2006 @11:12AM (#15636391) Homepage
    Here's a sample letter I sent to my Senator. Modify the pro-blah blah part to fit whatever ideology your senator perports to. A good lobbying tip is to get your congressman to think eliminating software patents is in the best interest of their public agenda, regardless of whatever that may be. Tie your agenda into their's, or you won't easily get their attention. You can do thay by putting some of their mantra in the first sentance, and tieing it into your issue.

    Notice I put the additional information link at the bottom. Probably no one will look at it, that's why it's at the bottom. The Amicus Brief I inlined. Since it is being heard by the supreme court, it's a Washington issue and more likely to actually be of interest to those inside the beltway.

    Dear Senator/Representitive blah blah,
    I'm pro-small business, pro-innovation, and pro-low taxes. Software patents are bad for all those stances.

    Large companies which previously were all for broader and broader patents are beginning to realize the error of their earlier ways. As is seen in this case currently before the supreme court.

    http://patentlaw.typepad.com/KSR%20MicrosoftCisco_ Amicus.pdf [typepad.com]

    Lawsuits which are now starting against OpenSource software developers and users will be a terrible drag on innovation and consequently our economy. Half the internet (or more) is power by such software, and that includes government networks. A high cost will be bore by the tax payer if OpenSource software is made illegal by software patents, and the government has to replace thousands of networks running on free software with commercial solutions. Not to mention the transitions costs.

    I am not an OpenSource software developer, but by my business relies on software from companies such as RedHat, IBM, and MySQL which do. If they cannot deliver their OpenSource software, my business will not survive.

    Software patents are stifling innovation and consequently our economy. Please take action to roll back or completely eliminate software patents.

    Further information about software patents can be found here:
    http://technocrat.net/d/2006/6/30/5032 [technocrat.net]

  • This isnt about open source.. (Score:5, Insightful)

    by segfault_0 ( 181690 ) on Friday June 30, 2006 @11:17AM (#15636429)
    The title is misleading, the fact is that viable software development activities for any company or individual who dont have millions in the bank or a big patent portfolio to counter-intimidate with, open or closed source, are under attack by holders of software patents that cover obvious or fundamental operations. Yesterdays software innovations are todays status quo practices, citing the object relational bullshit in the article as a perfect example - that is if you believe there isnt prior art in the first place. Perhaps we should make the patent officers liable for damage caused by stupid patent approval, i bet theyd get thier shit together then.

  • Patents are the ruin of the free market (Score:3, Insightful)

    by Opportunist ( 166417 ) on Friday June 30, 2006 @11:29AM (#15636545)
    In a free market, supply and demand set the rules and the prices. Competing manufacturers create goods, and customers decide based on quality, price and personal preference. That system worked for decades. Maybe centuries, depending on how far you want to stretch.

    In comes the patent. And here's where it gets ugly. While, as the article said, patents were supposed to push innovation and competition, they harm both: A normal innovator cannot afford a patent, and competition is stifled because who holds the patent may dictate who may produce.

    In the world of software it's even worse than in the real world. Frivulous patents for the equivalent of a toothpick aside, there are many things that can be done "right" only one way. There is often only one good algo for a certain task, with all the others falling behind. Should a company own the patent to a, say, search algo that is magnitudes faster than competing algorithms, this company has the monopoly on databases, if they so desire.

    This, ladies and gentlemen, is as anti-capitalist and anti-free market as it gets. Our market system relies on the equilibrium between supplyer and demander, on the fact that price is made at the market by the rules of supply and demand. If one side has the power to overrule this and create monopolies to dictate price or, worse, competition, the free market is dead.

    It's not much different with DRM, btw, where the format providers may dictate what kind of devices may be created. BluRay as well as HDDVD devices only get the ok (and the key) if they agree to implement a secure data path. You MUST NOT create a device that has none. Now, you could of course create a "free" format, but then those machines that play HDDVD/BluRay must not play your format, and the content industry will not provide content on your format (out of self interest). -> free trade dead.

    As long as patents exist in the current form, we're going to steer towards something that caused the downfall of the Soviet Regimes. They, too, produced goods the consumer did not want. They had different reasons, but the result is essentially the same: The goods manufactured do not match the demand of the users. And so far, there is no law that force us to buy AT ALL.
  • Using your name and scare tactics to generate hits to your site.
    What an amazing coincidence that this starts to happen shortly after you get advertising.

    It is under review, that is all.
    You should get 'recognized' people in the indutry to help advise congress and the USPTO.

    Patents do work. This business of Software and business patents are obusive of the Patent intent and should be abolished, the idea of patent is a good one.

    As someone who had a company try to use something I patented, I was able to defend my patent. So I may be biased. I wouldn't want to cloud anyones opinion with fact and real world examples though.

  • Patent suit against Red Hat and Jboss Hibernate... (Score:3, Informative)

    by donigan ( 606311 ) on Friday June 30, 2006 @06:51PM (#15640200)
    In 1997 the following paper was presented at the 6th International Python Conference: "Persistent Storage of Python Objects in Relational Databases" by Joel Shprentz (http://www.python.org/workshops/1997-10/proceedin gs/shprentz.html) This paper describes exactly what the Firestar patent claims to invent. Appears that the patent office is: A) Lazy, B) un-informed, C) unable to keep up with the imense amount of discovery that is going on, and/or D) an out of touch wreck that is going to destroy inovation in the civilized world. I am a small software developer that was recently forced to abandon a very promising project that I spent 2 years on. This, brought about by a patent troll in NY city. I could not afford the $Millions they wanted or the cost of defending myself against an absurd patent that they bought from the ashes of a bankrupt company. My attorney sugested that I just let it go and not bring my product to market. Oh yes! The patent office is promoting inovation left and right.......in the field of creative litigation. Perhaps, instead of changing the patent office, we should elect people to office that can change the court system in this country to force the people who file un-warrented law suits to pay the legal costs of the defendants, should the suit be shown to be without merit.

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