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The View from the EU Patent Proponents & Grokster
Saturday, August 21 2004 @ 09:26 AM EDT

If you would like to see how a pro-software patent lobbyist in the EU battle thinks, here you go. I found it riveting, in that creepy way you feel when someone shows you their surgery scar on their chest or stomach or something.

His thinking being of a kind that is alien to me, it took me quite a while before I realized that my first impression was accurate, that his primary argument is that software patents should be allowed because some happy few can make buckets of money from them. He also sees no need to consider the authors of free and open source software, because they are not "in business". He doesn't at all address the opposing concern, except to dismissively mock those that raise it, that innovation and progress will be blocked by any such monopoly grant on what is, after all, just math. John Gray, a patent attorney with the Glasgow-based firm Fitzpatricks, is the author, and as you might imagine, he loves patents and wishes he could have them in the EU. I think it's worth reading, though, because you can't fight ideas you don't understand. I submit Mr. Gray's article as Exhibit A in support of that proposition.

Here is an example of his view of the directive and its opponents:

"There are no moves to set up a system similar to the US: the draft Directive is actually intended to reinforce the boundaries established by case law, and prevent any drift in a more liberal direction.

"The governments of member states have been trying, through the European Council and Commission, to consolidate and formalise the status quo in European patent law. But this effort has been frustrated by a small but highly organised and vocal lobby, based on a selective and romantic image of computer programmers all working alone on their own projects."

Ignoring the first point, which I don't believe is accurate, he does not consider the views of those "working alone on their own projects" as being worthy of consideration. However, I do. Here's why. Those programmers "working alone on their own projects" developed an operating system, Linux, and all the necessary applications to run freely on top of it, the GNU et al components, that is tidal waving over all the world's proprietary software. Their concerns, therefore, are worthy of consideration in the best interests of the public welfare, which obviously derives a benefit from vigorous innovation, the very thing the patent system is supposed to promote. I think you could argue that their concerns should trump those of the dying software model's proponents on that ground alone.

Think about it logically. The patent system was devised to induce inventors to reveal their creations, so the public could benefit from their inventions, in return for which the inventor was given a short-term monopoly, so as to earn back his costs of research and development. This was considered a fair trade, because presumably otherwise the inventors wouldn't explain how they worked their magic and would rely on trade secret protection instead. But with GNU/Linux, all the authors are telling the world: here are our inventions. Have at them. We like to share. Just share in return if you build on this work. There is no need to induce anyone to reveal anything in such a system. It's out there already. So the need for patents is gone in such an open environment. There is no quid pro quo, because nobody is hoarding anything. Patents only make sense, if they do, in a proprietary environment, where secrecy is the norm and there is a need to induce inventors to share knowledge.

Mr. Gray writes as if those "working alone on their own projects" aren't commercially relevant and thus can be ignored, or mocked. But Linux can also be big business, regardless of the way it is written or the reasons why. Should companies making a living from GNU/Linux, like IBM, be blocked from doing so by a system that threatens to kill FOSS? Is it the job of government to favor one type of business over a competing type? Ignoring that reality -- that Linux is big business -- is done at the peril of the world's economy. His proposal, therefore, in my view, is that the public's welfare and the economic benefits to those whose business model includes GNU/Linux software isn't as important as the economic benefits to certain large proprietary software corporate interests, who wish to have a government-granted monopoly that would destroy their competition. He would like a system that favors one form of business over another, in short, and of course, as usual, nobody on that side thinks the public's interest need be considered, since they tend to think that the public interest and business interests are one and the same. All of his analysis is based on positing that the old software business model will continue, which I don't believe is true:

"We often hear that we (patent attorneys, lawyers etc.) are in the pocket of the big companies, and this line is used extensively by the anti-software patent lobby to discredit anyone who takes a different view. But patents are one of the few tools by which small companies in particular have a chance to level the playing field. If you have a patent (albeit you must invest something to obtain and enforce it), you at least have something to make the big boys talk to you. They may not need to “buy your soul” to copy your ideas, but they may have no choice but to buy your patent. It baffles me why small software designers should seek so vehemently to talk themselves out of this form of protection.

"For serious business people, with innovative products or services that need long-term investment in development and marketing, to have any chance of success in the global market place, patents are a useful option, to safeguard the investment as much as possible. . . .

"Patent protection can be expensive. But too often patents are judged unaffordable simply because nobody included the costs in the initial business plan."

You can see that he has no clue how Linux was developed. There was no business plan. When it's guys coding for the fun of it or because they believe in freedom to modify and the scientific method of sharing information, there is no business in the sense he means it, so his suggestion to small businesses to "include the costs" of patents in your "initial business plan", is like Marie Antoinette allegedly saying, "Let them eat cake," when told the peasants had no bread to eat. The suggestion is impossible to implement and suggests it comes from someone lacking a comprehension of the actual problem.

I have a suggestion. Why not have patent laws exempt FOSS? If the proprietary software companies enjoy suing each other over patents right and left, I think we should let them go to their final end just that way. As long as the world follows IBM's lead and carves out a safe harbor for GNU/Linux, I see absolutely no reason why the two models can't coexist happily but separately, with all parties allowed to proceed according to their lights.

If, on the other hand, the purpose of the EU directive is so Microsoft can use patents to destroy Linux, then that shouldn't be allowed in the first place on antitrust grounds. But if that is not the purpose, what objection could there be? FOSS agrees not to use patents to sue anyone on the proprietary side and gives up the purported benefits of patent protection, and the proprietary side agrees not to sue FOSS vendors and developers over patents. No? Too simple?

When the Mickey Mouse extension to copyright law was being considered, I thought of a similar resolution that I still think would work: Let the corporations keep the big money-making copyrights, but let all the rest go into the public domain. Most copyrights aren't making money for anyone anyway, so why deplete and impoverish the public domain, which has been strip-mined into a cultural wilderness (I don't think Mickey Mouse lunchboxes count as culture), just so Disney can clasp its copyright on Mickey Mouse to its bosom and its wallet to time indefinite, even forever?

Culture matters too, not just Disney's bottom line, but rather than argue about it, why not set up a system whereby copyrights still generating a certain financial return at the end of a fixed time period can be renewed, and those not reaching that bar cannot? Corporate entities do have concerns that they consider valid, so why not give them what they feel they need, so long as they don't grab everything else in sight? You know, like in monster movies, where you throw food to the beast so it doesn't eat you.

Speaking of attempted overreaching, you don't want to miss reading the MGM v. Grokster decision. The US Court of Appeals for the Ninth Circuit has upheld the lower court's ruling that P2P companies like Grokster can't be held contributorily or vicariously liable for copyright infringements by users, soundly rejecting MGM's attempt to expand "exponentially the reach of the doctrines of contributory and vicarious copyright infringement". The court felt bound by the Sony Betamax decision, the one that lets you use your VCR to time shift. It's a truly clueful decision, one that demonstrates the process I keep telling you about, that it takes time for the courts to get up to speed on a new technology, but they do get there. This three-judge panel got there, and bear in mind it's the same court that ruled against Napster. I think they must have read Larry Lessing's "Free Culture", particularly Chapter 4, "Pirates", judging by their opening and closing words, and they definitely made the effort to understand the tech enough to distinguish between Napster's central server and Grokster's lack of such:

"From the advent of the player piano, every new means of reproducing sound has struck a dissonant chord with musical copyright owners, often resulting in federal litigation. This appeal is the latest reprise of that recurring conflict, and one of a continuing series of lawsuits between the recording industry and distributors of file-sharing computer software. . . .

"In this case, the district court found it undisputed that the software distributed by each defendant was capable of substantial noninfringing uses. Grokster I, 259 F. Supp. 2d at 1035. A careful examination of the record indicates that there is no genuine issue of material fact as to noninfringing use. Indeed, the Software Distributors submitted numerous declarations by persons who permit their work to be distributed via the software, or who use the software to distribute public domain works. See id. One striking example provided by the Software Distributors is the popular band Wilco, whose record company had declined to release one of its albums on the basis that it had no commercial potential. Wilco repurchased the work from the record company and made the album available for free downloading, both from its own website and through the software user networks. The result sparked widespread interest and, as a result, Wilco received another recording contract. Other recording artists have debuted their works through the user networks. Indeed, the record indicates that thousands of other musical groups have authorized free distribution of their music through the internet. In addition to music, the software has been used to share thousands of public domain literary works made available through Project Gutenberg as well as historic public domain films released by the Prelinger Archive. In short, from the evidence presented, the district court quite correctly concluded that the software was capable of substantial noninfringing uses and, therefore, that the Sony-Betamax doctrine applied.

"[4] The Copyright Owners submitted no evidence that could contradict these declarations. Rather, the Copyright Owners argue that the evidence establishes that the vast majority of the software use is for copyright infringement. This argument misapprehends the Sony standard as construed in Napster I, which emphasized that in order for limitations imposed by Sony to apply, a product need only be capable of substantial noninfringing uses. . . .

"[6] In the context of this case, the software design is of great import. As we have discussed, the software at issue in Napster I and Napster II employed a centralized set of servers that maintained an index of available files. In contrast, under both StreamCast’s decentralized, Gnutella-type network and Grokster’s quasi-decentralized, supernode, KaZaa-type network, no central index is maintained. Indeed, at present, neither StreamCast nor Grokster maintains control over index files. As the district court observed, even if the Software Distributors “closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption.” Grokster I, 259 F. Supp. 2d at 1041. . . .

"[10] While Grokster and StreamCast in particular may seek to be the “next Napster,” Grokster I, 259 F. Supp. 2d at 1036, the peer-to-peer file-sharing technology at issue is not simply a tool engineered to get around the holdings of Napster I and Napster II. The technology has numerous other uses, significantly reducing the distribution costs of public domain and permissively shared art and speech, as well as reducing the centralized control of that distribution. Especially in light of the fact that liability for contributory copyright infringement does not require proof of any direct financial gain from the infringement, we decline to expand contributory copyright liability in the manner that the Copyright Owners request. . . .

"The Copyright Owners urge a re-examination of the law in the light of what they believe to be proper public policy, expanding exponentially the reach of the doctrines of contributory and vicarious copyright infringement. Not only would such a renovation conflict with binding precedent, it would be unwise. Doubtless, taking that step would satisfy the Copyright Owners’ immediate economic aims. However, it would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context.

"Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 1999). The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through wellestablished distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude. Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, “The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.” 464 U.S. at 456 (quoting Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 (1972))."

Of course, the Hollywood gang are already pushing for a law in Congress, the INDUCE Act, that would specifically overturn Sony Betamax. INDUCE is being spearheaded by Utah's Senator Orrin Hatch, the father of SCO's attorney, Brent Hatch. The apple does not fall far from the tree.


The View from the EU Patent Proponents & Grokster | 272 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT threads here please
Authored by: Chris Lingard on Saturday, August 21 2004 @ 12:13 PM EDT
EU commissioner admits Gates link

[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: Latesigner on Saturday, August 21 2004 @ 12:21 PM EDT
Culture matters too, not just Disney's bottom line, but rather than argue about
it, why not set up a system whereby copyrights still generating a certain
financial return at the end of a fixed time period can be renewed, and those not
reaching that bar cannot? Corporate entities do have concerns that they consider
valid, so why not give them what they feel they need, so long as they don't grab
everything else in sight? You know, like in monster movies, where you throw food
to the beast so it doesn't eat you.


I'd be willing to try it just so I don't have to hear anymore "haves and
have more" intros from 'W'.

[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: jwoolley on Saturday, August 21 2004 @ 12:41 PM EDT
FOSS agrees not to use patents to sue anyone on the proprietary side and gives up the purported benefits of patent protection, and the proprietary side agrees not to sue FOSS vendors and developers over patents. No? Too simple?

Sounds reasonable. The only catch I can think of at this early hour of the PDT morning is that there are some OSS licenses that would put this proposition into kind of a grey area. For example, what would happen in the case of the BSD license or the Apache Software License 1.1? (2.0 would be a different story.) In those cases, there could be patented code included in an OSS product, and it would be perfectly legal -- but then what would happen when some 3rd party vendor tried to take that OSS product and build their own proprietary product on top of it? They'd have to find all the patented code in there and get rid of it or risk being sued by the patent owners (who might have already done the legwork to know such code was in the OSS product and were just waiting on some sucker they could legally pounce on). What could be done about such a situation?


[ Reply to This | # ]

pj, I think there is a flaw in your reasoning
Authored by: kawabago on Saturday, August 21 2004 @ 12:44 PM EDT
To have corporations using patents and FOSS not having them would only work if
noone uses FOSS in business. However it is businesses using FOSS that is
fueling it's growth. So those businesses would have an unfair advantage because
they don't have to pay royalties on the patents. I don't think any kind of
plurality is possible. Ultimately it will be business that rids the economy of
software patents once they realize what a tax on the economy and creativity they
actually are.

My name is Doug and I've been wrong before.

[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: brenda banks on Saturday, August 21 2004 @ 12:49 PM EDT
i am not an economist and will never claim to understand them but
i pay attention when tax increases are talked about tho
so the single individual is often mentioned about starting new business and how
important they are to the economy
if only ideas are allowed by big business where is any incentive to create
this is just not even reasonable thoughts
when people start talking even slightly like this it is time to start opening
your mouths and talking to your own officials and making sure they hear from you
loud and clear.europe/usa doesnt matter where
this sounds like serfdom all over again

br3n #groklaw
Mike "Moogy" Tuxford, 1951-2004. Rest in peace.

[ Reply to This | # ]

I had a discussion with a software patent proponent
Authored by: Anonymous on Saturday, August 21 2004 @ 01:05 PM EDT
A few weeks ago, I had an e-mail discussion regarding software patents with a
patent lawyer. Here is how it came to be:

The patent lawyer had written a large article in the discussion pages in a local
newspaper, their article was a response to a anti-software patent discussion
article by the left-party (the communists). His views in the newspaper
discussion was basically that anyone that makes an idea has the right to protect
it. I got upset by the article and decided to write him an email, which i did. I
asked him wich arguments he had for patents, to which he responed something like

"We have patents to protect the creator of an idea a limited time of
monopoly, which is good for the little guy and bad for the big guy. For example,
if you and your friends would write a competing product to microsofts office
suit. And to compete you have figured out some smart features which would make
your office suit better than microsofts, wouldnt it be great if you could have
monopoly on that idea and become rich?"

To which I responded that what if Microsoft had a patent on office suits or
basic functinos which enables WYSIWYG editing or another feature I need to be
able to compete with their office suit. To which he responded that since that is
probably advanced stuff they of course must have the right to patent it.
(completely missing my point - that big corporations have much bigger capacity
to patent simple ideas and block competitors using their patent portfolios). In
the end he did not seem to understand this, and in his world, competition will
be better and smaller companies will easier compete with microsoft, et al.

Then I asked about open source and how patents should be applied in those
situations. His respons in that matter was something like:

"You bring up and intresing question. I dont know, however I do know that
every idea should be patentable. so if these open source guys invent good stuff
they can patent it too"

In the end his foremost argument was "Lots of inventions is patentable
today, why should not software-inventions be patentable as well?" and
"all ideas must be patentable in the intrest of everyone, it will lead to
better competition and more jobs".

[ Reply to This | # ]

Leading in the right direction
Authored by: bbaston on Saturday, August 21 2004 @ 01:15 PM EDT
PJ wisely and bravely said,
"... because you can't fight ideas you don't understand."

Another way to say, "Know your enemy." This post, in historical
perspective, will be known as the legendary Pamela Jones' launch of the patent
war defense for F/OSS. When the day ends, my studies will begin in earnest!

Thank you, PJ, for your effective leadership and hard work.

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold, hairysmileyface,

[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: fxbushman on Saturday, August 21 2004 @ 01:19 PM EDT
FOSS is the elephant in the room. Some folks can't see it at all, some do see it
and believe it is a revolutionary energy boost to the IT economy, and others see
it clearly and want to kill it. We can put MS and its allies in the latter
category. Is Gray in the first group or the third?

[ Reply to This | # ]

I've asked before...
Authored by: Anonymous on Saturday, August 21 2004 @ 01:41 PM EDT
What's wrong with software patents?

No - NOT what's wrong with Microsoft patenting the obvious and abusing OSS etc
etc. That's obvious.

I mean, what's wrong with patenting innovative software methods, *exactly* as is
done outside software? Methods are methods: A way of producing rubber (for
example) is a direct equivalent to a software method.

The "obvious patent" problem exists in regular patents as well.

(Disclosure: I have obtained, and will continue to obtain, software patents.
Serious ones, not Mickey Mouse MS ones. You may not like that, but tough it's
not going to change. You *will not* stop software patents. You might help reform
the patent system. Maybe.)

But I seriously want to know, without recourse to stupid MS examples, why
exactly you want innovators to not benefit from their work? Surely I, and
others, should have the *freedom* to do so if we wish?

[ Reply to This | # ]

Patent Proposition
Authored by: rsteinmetz70112 on Saturday, August 21 2004 @ 01:42 PM EDT

I believe that your proposal for a exception for FOSS is unworkable and unfair
for a number of reasons. First it creates a privileged class of patent users
(FOSS authors) which is subject to tremendous gaming. For example if I wanted to
use someones patent in a program, I could simply write a simple open source
program to do that, then release it under a BSD style license and incorporate it
into my proprietary product. Second and probably more important there will be a
long line of people who will want to get the same status. There is already a
movement for an exception for drug patents. One of the chief proponents if this
is India, a large, poor, technically sophisticated, country which simultaneously
wants to develop its own domestic drug industry. What better way than to plead
"poverty' and use other peoples technology to bootstrap a domestic

The same logic can be applied to any endeavor which may be socially desirable
but economically could be disastrous. Software is a less compelling case than

There is a serious problem with software patents. I believe that software
patents have a place for truly innovative and significant inventions. I do not
believe mathematical formulas or procedures should be patentable. I also believe
that any such patent should be required to be demonstrable. That is you should
have a working product which someone could license and use. Theoretical
possibilities should not be sufficient, nor should obvious or trivial

An example of work which I think would qualify is Sequent's work on SMP. It was
significant, new and demonstrable. Examples of things which should not be
patentable are Microsoft's To Do List or double-click.

I believe that solution to the software patent problem is a more rigorous
definition and examination of what is patentable, not a patchwork of exceptions,
or even a wholesale ban on software patents.

Open Source software is uniquely vulnerable to software patents, because it is
open. Who knows how many patents Microsoft Windows may infringe, because we
can't know what is going on under the hood. Could, for example, OSRM conduct the
same kind of audit of Microsoft Windows as was done for Linux?


"I could be wrong now, but I don't think so."

[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: Nick_UK on Saturday, August 21 2004 @ 01:43 PM EDT
One thing I do not understand - and coders reading will
appreciate this - is how do you patent a software product,
but yet there is 1000's of ways to do it?

Surely the patent is of an idea. Not on the code?

OK, Fred Flintstone invents the wheel, and patents it.
Sure, a great idea! works really well. But any wheel has
to be round. There is only one shape a wheel can be.

Barney Rubble, also found the wheel. But he didn't patent
it (not enough rocks to afford it). His wheel is round
too (all good ideas => to same solution) - the wheel has
to be round. But even though his invention was unique
(and different to Freds), he doesn't own it.

Software is more diverse. Give the same problem to 1000
coders, all will code it different - but get the same

If somebody owns that problem 'patent', unbeknown to the
1000 coders, irrelevant what they code, and how, they are
breaking the law.

I said before in here re the M$ 3000 patents a year the
USA is giving out - the LAW, and it's adjudicators are an


[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: vadim on Saturday, August 21 2004 @ 01:48 PM EDT
The main goal behind patent system is "to promote the progress of science
and the useful arts".
At the time the patent system inventors found that the best way to promote
sharing of information on inventions is to grant limited monopoly to the
inventor who publish his invention.
Today after couple of centuries we've found another way to
to achive the same goal in the area of software. FOSS. Not every type of FOSS
but only ones which use ingenious GPL-type (viral) licensing scheme.
It is undeniable that this new way is much more efficient than the old one for
following reasons:
- No need for Patent Office and associated costs.
- No nead for cryptic language in patent submissions.
Simply download the sofware and use it or tinker it.
- No need for patent lawyers
- Much wider public exposure for the invention

There is a also positive social effect because in case of FOSS the inventor
expect to get some benefit through the act of contribution to community, while
in case of patents the inventor simply want to secure monopoly to garantee his
personal income.

So IMO we should mount a movement to create "Patent Safe Harbor" for


[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: MrDemeanour on Saturday, August 21 2004 @ 01:52 PM EDT

What this dude doesn't seem to understand is that patents don't confer an advantage on small operations. It's almost impossible for a small company to defend a patent suit, even if they haven't infringed. It costs between 2 million and 5 million dollars to defend a patent lawsuit.

The consequence of this fact is that companies that hold large numbers of patents (e.g. IBM) can "lawyer" a small operation into the ground in a couple of weeks. That's why FSF require contributors to assign their copyrights.

He's quite right that machines that are made out of bits are equivalent to machines made out of wheels, levers and so on; in principle, any computer program could be "re-written" as a mechanism. He's obviously a sharp guy. But if software patents are upheld, then it will become impossible for a small company ever to attempt to compete with the big guys; because even if they don't infringe, they won't have enough cash to prove in court that they're legal.

That's what's wrong with software patents. If you lawyer folks can fix it so that patents are properly scrutinised before the patent is issued, then it's (barely) arguable that original software ideas need to be protected from copying.

But I don't think so; on the contrary, I think that the whole idea of software patents is a bloody mess. Software is a form of literature, and as such is protected by copyright law. That law (in the UK) is civil law, it applies automatically (you have the rights if you created the work, and you don't have to go through some registration process), and it prevents blatant copying. If someone wants to replicate your program, they have to create a work that is substantially new, and not just a version of your program with all the variable-names changed. And if that argument is correct, then it implies that patents in general, in a world of very rapid technological development, are an anachronism. It is my view that this is the case; patent law belongs back in the 15th century, where it came from.

I'm a programmer; very little of what I have written is original, in the sense that I've invented any new algorithms. I stitch together stuff that I've worked out for myself (but that someone else presumably worked out earlier) with stuff that everybody uses, and even the stitching resembles stuff that has been done before. If algorithms can be patented, then commercial software development becomes a business that only IBM, Microsoft and the like can engage in. This really isn't a terribly good plan, economically speaking. It's like giving someone a patent on needles - it would become impossible to make clothes, without coughing up for the license. Everyone would be worse-off.

[ Reply to This | # ]

Why software patents will fail society
Authored by: Anonymous on Saturday, August 21 2004 @ 02:08 PM EDT
Poor Mr. Gray. I don't think he quite understands how software development
works. Perhaps he forgot (or never knew) that it was Bill Gates and tiny
newly-formed Microsoft, and not the commercial giant Microsoft, that originally
improved upon and distributed MS-DOS (please note that I did not say developed).
Does that mean that he should not be considered for patents, at least not until
his company gew to be a multi-billion dollar corporation?

The fact of the matter, in my eyes, is that most people who would actually be
helped by a patent are the people who really are innovating new ideas. But the
problem with that is that those are the people who are working alone on their
own projects. Most innovations, at least when they begin, are from people or
companies you've never heard from. They don't have the legal or financial
resources that large corporations have. Even if they wanted a patent, they most
likely would not have the resources to file for a patent, or even to check all
previous patents to see if a similar one exists. And they certainly wouldn't
have the resources to defend their patent in a court of law if a corporate giant
with unlimited amounts of cash were to violate it.

While I am certainly not against a company making money (as long as they do it
in the proper manner, like using quality materials, charging appropriate
amounts, and taking pride in their work), most companies playing the IP game do
it only to make money. And a lot (if not most) of their patents are obvious or
have prior art, and others are just plain unreasonable (in my opinion). One
example of the latter is IBM's patent on a restroom reservation system.

But the true cost of the patents is, as we all know, that it will grant those
few who hold the patents great monopoly power over the rest of us. The patent
system as we know it is broken. Why shouldn't two people be able to develop
similar products, completely independent of each other? Why should one of them
have to pay licensing costs for something he or she developed themselves with no
help from anyone else? The basic principle behind the patent system is to give
you time to make enough profit to cover the R&D you put into your product.
But what if you and someone else developed similar products at the same time,
and the other person filed for a patent first? Who's going to cover YOUR
R&D costs? My opinion is that as long as you don't steal the code,
information, trade secret, or anything else from the other person, then you
should legally be able to develop a similar product without paying licensing

[ Reply to This | # ]

Some very selective quoting from the outlaw article
Authored by: MathFox on Saturday, August 21 2004 @ 02:12 PM EDT
It can be great fun to floor an opponent with his own arguments. John Gray knows what he's talking about and provides the ammo for an anti-software patent view: Let's start with the intent of patent law:
A patent is designed to allow companies large and small to defend themselves against a predator who might wish to short-cut the risky development and marketing process and copy their successful products on a big scale and put them out of competition,
There is a difference between software and technical fields:
I have also found a quirk of perspective by which patents look disproportionately expensive to software developers compared with other, more traditional inventions – namely the fact that software developers can work miracles with only time/wages and relatively little capital equipment outlay.

More "traditional" engineering on the other hand requires materials, equipment, prototypes, and other items – all of which are significant costs in a new development, and make patents look less of a burden in proportion.

And don't forget that "traditional engineers" can't get copyright protection on their work.

So, there seems no economic foundation for patent protection on software. There is little investment in R & D to recover and software has copyright protection. What are the real reasons to ask for software patents:

But at the moment we are pushing the limits of what can be patented in this country when clients ask us to protect innovations in such areas as scientific modelling, knowledge management, speech and language processes and logistics, as well as banking and other financial services.

This is likely to be damaging in the long term, as it will harm the ability to raise capital to invest in product development and marketing in these key areas. At present it is resulting in most innovators either filing for protection in the US only, or not filing at all.

The last sentence: "Innovators filing in the US only". Is there a patent attorney smelling a fresh market?

Anyway, all the above doesn't fit the originalofficial intention of the EU patent reform

There are no moves to set up a system similar to the US: the draft Directive is actually intended to reinforce the boundaries established by case law, and prevent any drift in a more liberal direction.
and that also doesn't fit the
Even though you are a UK or European company, if you have global ambitions, you will be exposed to patent threats in the US marketplace without having anything to fight back with.
We need EU patents to fight US patents? Isn't that fighting fire with fire? The FOSS movement is clear that they don't want software patents; the EU says so too, while on the other side proposals to allow software patents are heavilly pushed. The proponents of software patents aren't beyond twisting the truth to get their proposals through.

I smell a rat!

When people start to comment on the form of the message, it is a sign that they have problems to accept the truth of the message.

[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: Michael Schock on Saturday, August 21 2004 @ 02:38 PM EDT
I disagree with the opinion that patents help the little guy.

But patents are one of the few tools by which small companies in particular have a chance to level the playing field. If you have a patent (albeit you must invest something to obtain and enforce it), you at least have something to make the big boys talk to you.

The little guys have no real power to make any big company "talk to you". What is to stop M$ from just using your patent? I don't believe most of the small business owners would be able to afford the cost of making big companies "Pay up". The small business owner most likely cannot defend a patent lawsuit and it cannot afford to enforce a patent with a lawsuit. I don't see how this is helping the small business people.

Ahhh...The sound of SCO disintegrating. Such a good sound.

[ Reply to This | # ]

Monitary Policy compared with Patent Policy
Authored by: jog on Saturday, August 21 2004 @ 03:07 PM EDT
Market controls (price & wage) lead to stagnation and shortage. Alternate
currency (cross licensing) also flourihes.
Post WWII Germany (1947-49 onwards) was the only market without price control in
Europe. (see how that went)
Patents on what would otherwise be a commodity limits the
diversity of goods in the marketplace in a similar way as
price controls limit quantity. Diversity and quantity both
affect cost and thereby limit the vitality of the economies
who place these limitations upon themselves.

Perhaps if politicians in Europe can be shown a corrilation
between the performance of economies (with v. without) price
controls, and that of "idea patents" they may see the future. If they
can understand the present in terms of the past the future may be safer.

I saw this on PBS last night. I can't even spell Economest

[ Reply to This | # ]

IP problem solution.
Authored by: Anonymous on Saturday, August 21 2004 @ 03:32 PM EDT

As with many things this derives from the teachings of the Master, Robert A.

For copyrights and patents, we say yes you can file your IP,
and you get to value it at $X. But for the first Y years you will pay Z1% of
that value as an IP tax and after time T years Z2%. But anyone can buy your IP
from you for $X at any time with a 30 day notice. You can revalue your IP
higher at $X2 within that 30 days but you must also within that 30 days pay the
difference of back taxes between $X1 and $X2 for Q years at the Z2 rate. If the
taxes aren't paid in Q years, the work becomes PD. It's not unreasonable but
optional to expire patents after a fixed period, and your economic bias may be
to say that after a reasonable time the owner must license his work (copyright
or patent) to anyone for no more than L% (right to license for less remaining
the option of the owner).

For example we could make Z1 0.1%, Z2 1%, and Q 10 years for copyright, and 1%,
5%, and 5 years for patents.

Just a thought. The master had some great ideas!

-- TWZ

[ Reply to This | # ]

Those pesky artists again
Authored by: Anonymous on Saturday, August 21 2004 @ 03:44 PM EDT
This article underscores one of the worst disinformation aspects of the whole
copyright/patent discussion, particularly in the music industry, namely, who
reaps the benefit?

As a musician and also a programmer, I am opposed to software patents, yet I
actually find myself agreeing with one of Darl McBride's statements, although
from a completely opposite end viewpoint. Darl once stated that SCO's campaign
was similar to that of the RIAA. I agree, there are many similarities, all
negative, and I think this article points some of them out.

The music industry is suing 12 year olds on the grounds that they are protecting
the artists' rights, and Mr. Gray attempts to argue here that software patents
protect the programmers' rights. At best that is only partially true.

The music industry has a long history of trampling on the rights of artists. As
the case cited in grokster illustrates, the record company was quite willing to
shelve the band's music because it didn't fit the record company's idea of
'commercial'. The band was in fact forced to pay the record company to regain
the rights to their own music to publish it elsewhere. This is not an isolated
incident... look up John Fogarty and his long legal battle to simply be himself.
Look also at the recent (and some still ongoing) lawsuits between numerous
artists (not just new unknown artists; these include Don Henley, Sheryl Crow,
Jackson Browne & others...) and their record companies. The beneficiary of
the recording industy's litigation war is the record companies; the artists only
receive 2-4% of the income from sales.

Copyrights offer minimal protection to the artist, because there is a middle
layer of rights known as publishing rights which, due to recording industry
contracts, turns most of the rights over to the publisher (the record company)
and leaves the artist at their mercy. The artist usually has to sigh away
certain of the rights normally granted by copyright in order to get a recording
contract. This dates to an obsolete industry in which recording techniques and
equipment were prohibitively expensive and artists had no choice but to go to
the record companies if they wanted to be heard. Technology advances in the
'90's changed that relatively inexpensive equipment and the proliferation of
indie producers and distributors. Unfortunately, the record companies failed to
adapt to the changing times.

The same situation exists in commercial software, where a programmer's work is
"for hire" and through contracts the software company holds the real
title. If a programmer leaves the company, his work stays there, in fact he is
probably under an NDA that says if his genius shows up somewhere else he will be
sued. SCO wants to try and use this same "for hire" argument to claim
ownership of Dynix. The rise of OSS though has changed this landscape. The
commercial software industry though, like their recording industry counerparts,
have failed to adapt.

The intent of copyrights and patents is to protect the CREATOR of a work so that
they might use them and benefit from them as they see fit (for commercial profit
or otherwise). But the current and pending laws are flawed by a blurring of

What the corporate world wants, and certain recent and pending laws are designed
to further, is to usurp the original intent and turn the control over to the
CONTRACTOR. That is why Disney is trying so hard to extend the time limit in
copyrights; since the CREATOR is deceased, they want the CONTRACTOR to have
those rights in perpetuity.

The legislators who are writing these severely flawed bills to twist our
copyright and patent laws to favor corporate interests need to somehow be made
to see the difference between CREATOR and CONTRACTOR. Additionally, contract
laws need to be looked at, and contracts that allow a company to take rights
away from the CREATOR of a work should be forbidden. Artists, programmers and
others who are CREATORS of work should be allowed to contract with their
respective indusries on their own terms, not locked into contracts that deprive
them of rights.

Open source programmers have already discovered this freedom. Many musicians and
artists have also found, as in the case cited above, that they can be freed by
opening their work to the world. This freedom is what the commercial interests
fear, and why they are fighting so hard to quash it. If people realize that
they can be free then the feudal corporations who try and cling to an obsolete
business model and rely on unfair laws to maintain their unrealistic profit
margins will be doomed.

Yes Darl, you're right. They are very similar. And hopefully those of us who
understand freedom can change them.

[ Reply to This | # ]

Is the current patent process uncnstitutional
Authored by: darkonc on Saturday, August 21 2004 @ 04:58 PM EDT
Clearly, Congress has the right, generally, to define what's patentable, but I'm gettign the feeling that, between design and implementation, the current patent process is not promoting the arts in the software field.

As such, allowing software patents under the current regime is actually unconstitutional because it does not satisfy the requirement of forwarding the arts and sciences.

The only group likely to benefit (if at all) from patents is the very largest companies, but those companies are not the prime source of innovation, employment and growth -- that takes place mostly in the smaller companies that do not get the headlines. Those same small to medium sized companies are the ones for whom the overhead of patents (both as a source and a victim) is most onerous.

Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Not just math
Authored by: Anonymous on Saturday, August 21 2004 @ 05:03 PM EDT
Without disagreeing with the rest of PJ's post, I'd like to comment on this bit:

monopoly grant on what is, after all, just math

My humble $.02: If software is "just math", then so is music. Both may have mathematical foundations, but neither can be thought of as math in any meaningful way.

This doesn't mean software should be patentable, of course. The idea behind patents is to encourage progress (via investment in R&D) by granting a temporary monopoly on ideas that were hard to develop. Hence the standard for a patent includes that the items being patented be "not obvious to a skilled practitioner."

In software, however, there are very few idea that is not obvious to a skilled practitioner. Rather, it's the implementation that's problematic. IANAL, but AFAIK the difficulty of an implementation does not make it "non-obvious". Hence, even if software patents are to be granted (and I'd rather they not be), they should be far rarer than they are today. IMHO, anyway :-)

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Patents and the little guy
Authored by: AdamBaker on Saturday, August 21 2004 @ 05:07 PM EDT
A couple of posters have already made the comment that patents, esp. s/w patents
are much more use to big business than small companies.

I think this is the biggest flaw in PJs suggestion, if we want to reform patent
law then we need a solution which gets evryone who is already suffering in the
US or will suffer in the EU on the same side. A solution which helps FOSS
developers but not small companies won't get as much support as prohibiting s/w
patents altogether because it doesn't help everyone who will suffer.

[ Reply to This | # ]

Allowable software patents
Authored by: ~tv~ on Saturday, August 21 2004 @ 05:54 PM EDT
There are some cases, when granting a software patent might be justified.

Software is used to describe the real world. It is always some kind of
abstraction of a real-world process. If that process is an innovative,
non-obvious way of solving a problem, then granting patent protection on it is a
way of rewarding the inventor.

That said, I don't think the current practice is anywhere near this.

[ Reply to This | # ]

Why Patent law should not apply to Software
Authored by: Anonymous on Saturday, August 21 2004 @ 05:59 PM EDT

The original intent of patent law was to reward an innovator of a non-obvious
and difficult to create innovation with a long term monopoly as a form of
incentive. Additionally, publishing the patent was thought to advance the state
of the art in society such that new innovations could be built on top of the
previously created innovations, thus advancing the state of technology at a
more rapid pace.

The problem with software patents is that ALMOST ALL software innovations could
be recreated from scratch without any disclosure of prior knowledge. ALMOST ALL
so called software patent innovations are simply made by the first person who,
by happenstance, falls across the problem with an intent to create a monopoly
protection. Finally, the publishing of this information in ALMOST ALL software
patents does nothing to advance the state of the art as creating the innovation
again from scratch is ALMOST ALWAYS a trivial exercise in software (unlike
hardware), requiring only a time investment by a competent programmer. (And no
additional capital investment, as this programmer already owns a computer.)

As an example, let us take the concept of the file handle. Is it an innovation?
Yes. Certainly someone could (or perhaps did) patent the concept of the file
handle when it was first invented 40 or 50 years ago. However, any competent
professional programmer, when faced with the obvious problem of how to open and
refer to a file in a compact, representative form, could re-invent the file
handle. The person who invented it first was simply the first person to happen
to have a need for it.

In the modern age, software patents simply do not have a need to exist as they
do little or nothing to advance the state of innovation, and simply add economic
inefficiency to the entire software development / usage cycle. An identical
economy on a different planet without software patents would develop faster
because less resources were being devoted to wasteful tolls on the path to
economic development.

We must fight the patent lawyers and patent portfolio companies in congress and
parliament. This will take both time and money. I am looking for a person or
organization to lead us so that I may contribute both. Unfortunately, that
leader cannot be me as my employer would frown upon such a visible role.

[ Reply to This | # ]

Public Domain and vice versa.
Authored by: Nick_UK on Saturday, August 21 2004 @ 06:05 PM EDT
Just a quick thought on this area. I recently packaged a
public domain application for Slackware.

This is public domain code.

As it is PD, what stops a corp. using said code and
including it in proprietry software with undisclosed
source - it is PD - but $$/££ to buy?

Does the wind blow only one way?


[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: Anonymous on Saturday, August 21 2004 @ 06:21 PM EDT
My understanding of patents is that they were originally an ingenious tax.
In return for a set payment, the king or queen would have her courts enforce a
prohibition on the import, manufacture, or sale of an item embodying a
particular invention; in favour of the person holding the patent.
As quid-pro-quo, the invention had to be disclosed so that everyone could study
it and learn from it; the prohibition was of limited duration (17 years, I
think); and the invention was subject to challenge as 'not novel'. A few things
(like perpetual motion machines) were excluded as 'not in the public interest to
allow patents on'.
Is this still the way British law works ? How about US law ? If you think of
software as an algorithm, is the algorithm ever imported, manufactured, or sold

[ Reply to This | # ]

Many good arguments here...
Authored by: Tomas on Saturday, August 21 2004 @ 06:27 PM EDT
But I have just one question I'd like to toss into the ring.

If more than one independently developed "invention" of a sufficiently
similar nature is submitted within a short time, why doesn't the USPTO consider
that proof on it's face that the "invention" is "obvious to one
skilled in the art?"

For example, let's go all the way back to the telephone with Gray and Bell. Both
submitted substantially the same "invention" to the patent office at
essentially the same time (within a four hour window, even).

It should be apparent that the time for that "invention" had come and
that most everyone skilled in that arcane corner of knowledge would likely be
coming to the same point soon. It was an 'evolutionary' development.

Sort of like 'one-click.'

If two inventions that do the same thing are submited at nearly the same time,
and both work, there may STILL be included differences in the ways the problems
were solved.

Patent's should ONLY be for the non-obvious, the unique, not for the obvious
next step. Patents should be for revolutionary not evolutionary

With the telephone "idea" for example, both had workable examples. The
DIFFERENCES in those examples, if substantial, should be patentable as different
and unique ways of solving a problem. Say, the carbon grain microphone as
opposed to the acid cup microphone. (The carbon grain microphone beat out all
the others and was standard in almost all phones for the next 70 years.)

How does this apply to software patents? I have no idea. I'm not sufficiently
'skilled in the art' to have an opinion (but I did spend 25 years engineering in
the Bell System, so I do have an opinion on that). :o)

Engineer (ret.)
We miss you, Moogy. Peace.

[ Reply to This | # ]

Why we should not have software patents
Authored by: Anonymous on Saturday, August 21 2004 @ 08:12 PM EDT
I think we should not have software patents for a very simple reason (and I
think I'm not alone in this reasoning):

It is abhorrent to me, that someone can own an idea (or a monopoly on an idea).

Remember the "1% inspiration, 99% perspiration" saying?

Copyright is great, because it protects the expression--the perspiration.
Copyright protects the source code that I worked so hard to create. Combined
with clever licensing (like the GPL), copyright lets me share the results of my
labor with the world, but protects my work from parasites who would steal it and
proprietize it for their own monetary gain.

Software patents are pure evil, because they cover IDEAS and FUNDAMENTAL
MATHEMATICAL TRUTHS which can only really be discovered, not *invented*.
Suddenly it becomes dangerous to have ideas, because maybe (just maybe) someone
else had that idea first and could afford the $10,000's to buy a monopoly on it!
With patents, you can learn an idea from a publically available source (or even
come up with it yourself) and then spend the 99% on implementing it, only to
discover that some large company demands 20% of your profits because someone who
worked for them at some point thought of the same idea first.

Ideas should be free (libre). Anyone should be able to learn anything and think
up any idea, that they want. Those who spend the 99% building something real
out of the idea deserve their fair shot in the marketplace.

[ Reply to This | # ]

The FLOSS waiver idea
Authored by: Anonymous on Saturday, August 21 2004 @ 09:15 PM EDT
I have a suggestion. Why not have patent laws exempt FOSS? If the proprietary software companies enjoy suing each other over patents right and left, I think we should let them go to their final end just that way. As long as the world follows IBM's lead and carves out a safe harbor for GNU/Linux, I see absolutely no reason why the two models can't coexist happily but separately, with all parties allowed to proceed according to their lights.

I don't know whether PJ is proposing a change in the law, or everybody agreeing to something, but in either case I don't see it working - even on what I imagine are PJ's objectives. (aside from the practicalities of getting everybody to agree if it's not a change in the law)

Suppose Microsoft (for example) is getting sued for infringing some browser patent (or afraid they might be). What can they do? Answer: put the patent infringing code in some LGPL module, and hey presto, they're in the clear.

IBM sue SCO for patent infringements in UnixWare, Reliant HA and OpenServer. SCO get round it by putting the compression, clustering, and whatever the other thing was in some FLOSS module (even if they repudiate the GPL, they have 50 or so other FLOSS licenses to choose from).

In other words, it just seems like a recipe to circumvent any patent, even while staying proprietary.

The software patent system in the US broken, already. The system is being gamed IMHO, and has lost its relation to providing real incentives to inventors. I'm not sure what they fix is - maybe it's to abolish all software patents - maybe it's to vastly narrow what is patentable in software - but that's the fundamental fix that is needed.


[ Reply to This | # ]

Sotware and Business
Authored by: Nick Bridge on Saturday, August 21 2004 @ 09:29 PM EDT
It seems to me that many have a blind spot.

They see "software" as equaling "business" - or at least a
means to it.

But we see software differently. We understand that computer languages ARE
languages - albeit much more concise. We automatically assume that language
deserves more protection.

Americans have freedom of speech. Some peoples of the world do not. We, more
than anyone, should realize that expression should be protected - regardless of
the form or language.

I have programmed since I was a kid. Only since I became an adult have I
programmed for money - if I needn't earn more money I would still program. I
enjoy creating (not limited to programming). I can fulfill needs with my

Software patents are one of the attacks on this important freedom.

Expression, math, language, art - it is critical that these things are
protected. No patents on software!

[ Reply to This | # ]

Other recording artists have debuted their works through the user networks.
Authored by: Marc Nadeau on Saturday, August 21 2004 @ 09:39 PM EDT
We have a band in Québec called .Les cowboys fringants (The vigorous cowboys)

Theyre well known around here but they're an independant group with a tight
budget and not backed up by any 'major'.

They recently went in France for a few concerts. They never been in France
before, never sold a record there and no media talked about them before they

Guess what? They were the first to be surprised that the concert rooms were full
and that most people already knew their songs.

The reason of that popularity: file sharing over the internet!

125 000 people are awaited for their next outdoor concert in Paris.,1-0@2-3450,36-372030,0.html

[ Reply to This | # ]

An Answer to Attorney Gray
Authored by: tanstaafl on Sunday, August 22 2004 @ 12:02 AM EDT
I just sent the following message to the website of the firm employing John
Gray; I don't think it will make much difference in their attitude, but I hope
they discover that their opposition has been depicted inaccurately by advocates
of software patents and proprietary source.

<address deleted> is my email; there's not enough room in the 'email'
field for the entire address.

Attorney John Gray asked at why programmers would do themselves
out of the protection afforded by patents. The answer is pretty simple, but
apparently needs a little elaboration.

There are many areas of endeavor for which patent protection is necessary. In
order to start a semiconductor fabrication facility, as much as 1000000000 euro
needs to be invested. A steel mill, an automobile factory, or a factory
building computers all require substantial sums to be invested before the first
penny of profit is realized, and if a competitor can take an inventor's idea
before that profit is made, the inventor is much less likely to take the risk,
to society's detriment. Software, on the other hand, requires an initial
investment in a computer and an account with an electricity provider (and maybe
some software, if you prefer proprietary software to open-source software), but
nothing else other than time.

I am a professional programmer, but I am not wealthy. In the U.S., where I
live, a patent attorney would charge me on the order of 4000 euro (assuming
U.S.$1.00 ~ 1 euro) for a software patent application (see If I write a typical software application,
there could be anywhere from 100000 to 1000000 lines of code (you would be
amazed how fast code blocks can grow), and on the order of 100 or more 'methods'
or algorithms that would need to be checked for patent infringements, with
little or no guarantee that there is no infringement. 400000 to 1000000 euro is
_far_ beyond any budget I have, but if copyright protection is involved instead,
all I have to do is ensure that all the code is mine and not purloined, with no
monetary cost involved.

The bottom line here is that if software patents are allowed, we will prevent
innovations by individuals and small groups with little or no funding. Surely
Mr. Gray cannot disagree that Microsoft
( and Sun Microsystems
( started as large, well-funded
groups; that means that they started with little more than than an idea. At
some point, I'm sure the founders of each of these companies had to search out
funding, but they didn't _start_ with it!

By allowing software patents, the EU will block the innovators of Europe, not
protect them. Who do you think will be among the first in line to file EU
patents? None other than Microsoft, Sun, IBM, HP, and a myriad of other large
American corporations! The innovators of Europe will be 'protected' from
succeeding; software patents offer not protection, but the disembowlment of the
goose that can lay the golden egg.

[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: Anonymous on Sunday, August 22 2004 @ 02:06 AM EDT

This passage:

We often hear that we (patent attorneys, lawyers etc.) are in the pocket of the big companies, and this line is used extensively by the anti-software patent lobby to discredit anyone who takes a different view. But patents are one of the few tools by which small companies in particular have a chance to level the playing field. If you have a patent (albeit you must invest something to obtain and enforce it), you at least have something to make the big boys talk to you. They may not need to “buy your soul” to copy your ideas, but they may have no choice but to buy your patent. It baffles me why small software designers should seek so vehemently to talk themselves out of this form of protection.

Explains how Mr. Gray doesn't understand anything about software patents. Even if I, as an individual, were to have 10 defendable software patents (which is nothing short of impossible), I am bound to hit some of thousands of other patents the big companies hold. So, in an all out war, I am bound to lose and lose big time. The only way to leverage my 10 patents is to become a parasite company making no software at all, which means that I cannot get sued.

Is this what what we want? Eolas style companies running the show? I certainly hope not...

[ Reply to This | # ]

What does it cost to patent something?
Authored by: Franki on Sunday, August 22 2004 @ 03:29 AM EDT
How expensive is it to patent something?

If it doesn't cost a heap, perhaps we should all put our thinking caps on and
start patenting ideas. If linux had their own patent portfolio, we could use
that to protect OSS.

We shouldn't have to, but from the look of it, its going to be necessary.

Perhaps the OSDL or some other organisation could start a donation line for
"patenting linux technology" I'd certainly donate to that, and perhaps
they could add a submission service where people can suggest potential patents.

It may not be MS that attacks OSS via patents, (too much bad press for them) but
it will be "someone" and we will need a course of action.

BTW, does anyone know of a detailed list of the patents that GNU/Linux was said
to potentially infringe? I'd like to read that.



Is M$ behind Linux attacks?

[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: alanhughes2004 on Sunday, August 22 2004 @ 05:38 AM EDT
PJ, when discussing this guy's article I think you have forgotten one critical feature. He is a patent lawyer, there it is in his own interests if the EU adopts US-style patent laws. He will see a massive increase in business, with the corresponding increase in money. Its good for him, and good for the likes of MS.

FOSS developer's however are unlikely to try to get patents (they simply don't have the money). So they are not going to increase his personal wealth whatever happens. Hence by his world view they are irrelevant and therefore should be ignored.

The bottom line is that he is motivate by pure self-interested greed. Just like SCO's management et al.

Sad, but true.

[ Reply to This | # ]

guess who is an favour of software patents ?
Authored by: Anonymous on Sunday, August 22 2004 @ 05:40 AM EDT
Lawyers and attorneys. What a big surprise!

I software patents grabs hold I give up my career as software developer and go
farming with pigs.

[ Reply to This | # ]

The View from the EU Patent Proponents & Grokster
Authored by: Anonymous on Sunday, August 22 2004 @ 05:55 AM EDT
"So the need for patents is gone in such an open environment. There is no quid pro quo, because nobody is hoarding anything."

Except, if we think in terms of the pro-patent camp, free software is "hoarding" innovations they can't patent.

[ Reply to This | # ]

Software patents and ideas
Authored by: Bill R on Sunday, August 22 2004 @ 08:54 AM EDT
Throughout this discussion has been the reoccurring theme of developing a
"new" idea and obtaining a software patent to protect the inventor of
this idea. The fundamental flaw with this argument is there are few truly new
and original ideas. Looking back into history of scientific progress finds the
development of new ideas are based on the work of others that came before them.
In software, this is called "prior art" because everything builds upon
what came before, including the textbooks that helps the developer learn their

The argument for patents is always, software patents will encourage creativity.
In reality, patents stifle creativity because information that should be
released to the public domain to benefit all instead is licensed to those who
can afford it. Leaving many young and inspiring developers out of the loop
because they either do not have access to or will not release their own works
for fear patent infringement. In the long term, this will drive development away
from the US to countries with friendlier patent laws.

[ Reply to This | # ]

Some of the things I don't want patented...
Authored by: Anonymous on Sunday, August 22 2004 @ 11:43 AM EDT
1) Raw Data -- like the human genome from electrophoresis

2) Procesed Information -- like the phone book from phone accounts

3) Applied Knowledge -- like indicators of human operator incompetence
or inattentiveness in nuclear plants

4) Optimized Algorithms -- like bubble, bin, shell, radix, and heap sorts

5) General Functions -- like least common denominator, solutions to
hyperbolic ordinary differential equations

6) All Writings -- like programs or the Constitution of the United States;
yes, the US would patent democracy right now

7) All Things Virtual as opposed to Physical -- like software, virtual reality

8) All Things Done With A Computer that were done by Humans -- like
"One Click" shopping

The list is unbounded and items like these are being patented in spite of
common use, obviousness, prior art, worthlessness, etc.

On the other hand, the chemical industry provides a wealth of good
examples of patents: Eastman's camera film emulsion, manufacturing
nylon, manufacturing plastic, and pharmaceutical manufacturing.

Patents have historically been good for society in high friction industries
because significant capital risk was involved. Today, patents are used
by people who have no significant capital risk to attack society at large
by submarining all other inventors and investors. The IEEE and others
have officially published positions in opposition to the US patent
shenanigans ongoing since the reorganization. Maybe Congress will
listen and understand the threats to competitiveness. I hope Congress
understands that software is written language that many grade schoolers

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No Quid Pro Quo
Authored by: Anonymous on Sunday, August 22 2004 @ 12:35 PM EDT
PJ wrote:

"So the need for patents is gone in such an open environment. There is no quid pro quo, because nobody is hoarding anything."

There is a quid pro quo, but a rather sublime (as opposed to a grasping, pinchfart-like) one. It states, "I Will Share. You may use what I provide, but if you are going to distribute your result, You Must Share Too."

[ Reply to This | # ]

some happy few
Authored by: Anonymous on Sunday, August 22 2004 @ 01:38 PM EDT
And they are called Patent Attorneys. Seriously, is it any surprise that a
patent attorney is trying to push a law that will create more patents, in a hot
field, and therefor a lot more lawsuits can result? Software patents is like a
jobs program for patent attorneys.

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  • Parasites - Authored by: Anonymous on Sunday, August 22 2004 @ 01:58 PM EDT
  • analogy - Authored by: Anonymous on Sunday, August 22 2004 @ 10:26 PM EDT
The apple does not fall far from the tree.
Authored by: Anonymous on Sunday, August 22 2004 @ 03:21 PM EDT
When my Opa said it, in german, I heard, "The horse does not fall far from
the apple." Implying a different kind of apple. Is that how you meant to
describe SCO's attorney?

-- Alma

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The View from a Hardware Hopeful
Authored by: Wesley_Parish on Sunday, August 22 2004 @ 11:04 PM EDT

Oh, yes, I am that too.

I had this idea way back in 1992, to redo the guitar pickup design, to get much, much more out of it than previous pickups had given the muso.

My idea is relatively simple and undoubtedly can be extended to other uses, but here goes - protected by the Hardware LGPL -

  • Six times six independent pickup elements, one per position per string;
  • 0ne input channel from the plug going to the amplifier;
  • One output channel from the plug going to the amplifier;
  • Thirty-six minus one links per pickup element to the other pickup elements;
  • One NOT CMOS gate per pickup element link to Input Channel;
  • One NOT CMOS gate per pickup element link to Output Channel;
  • One NOT CMOS gate per pickup element link to another pickup element;
  • One CMOS RAM cell for each NOT CMOS gate.

I was told by an AIESEC friend to get a patent on it A.S.A.P. I was partially employed as a Library Assistant at a local secondary school, which didn't pay for much. I was in the final stages of psychological recovery from my Traumatic Brain Injury, and had a massive Clinical Depression to endure. I was panicking because I had access to very little information on how to go about designing the thing and building it.

I also was panicking because I had had a long, close, hard look at the patenting business, and it seemed to be weighed heavily against the smaller guy. I would have no recourse if, before I had started to make any money on it, some big TLA bruiser of a company had decided to muscle in on me and simply take the idea. A legal battle of any duration was simply not within my powers. And I could not rely on any to help in any way.

It leaves a very, very bitter taste in one's mouth, to have to give up such a wonderful and promising idea. I have no idea just how far I could've taken it - humbucking coils with massive interconnectivity, multiple coil taps, builtin feedback, feedthrough, etc - it makes me delirious with excitement thinking of the possibilities.

"But you can't beat Tammany Hall, can you!?!"

finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

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The View from the EU Patent Proponents & Grokster
Authored by: Anonymous on Monday, August 23 2004 @ 05:20 AM EDT
It is great to read your arguments
against software patents and how you
dissect this lawyer's text. Alas, I think
these lobbyists are not at all interested
in arguments. They are interested
in making money. They know you are right
if the public good is concerned, but they
are not interested in the public good at
all. They are interested in making money.

They actually like us to think deep and
argue honestly about the issue to find
a solution which will further the public
good. They know it will keep us busy while
they lobby their way to make money.

It is like arguing with them about the
colour of gras. We could come up with
all kinds of honest research proving that
gras is green. They would smile, turn
around, look into the next TV camera
and start a speech with "All of you who,
like me, like this blue gras ..."

Which does not mean we should not keep
arguing honestly, but we should be prepared
that not the worthiest opinion will win
but the best lobbied.


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The View from the EU Patent Proponents & Grokster
Authored by: Anonymous on Monday, August 23 2004 @ 05:27 AM EDT
Why not have patent laws exempt FOSS?
This is a terrible idea, and dangerously divisive. Patents are a threat to all software developers, both FOSS and proprietary. This suggestion drives a wedge between the two, and basically amounts to FOSS developers throwing non-FOSS developers to the wolves.

Software patents are a threat to all software developers, and all software developers must remain united against them if they are to be stopped.

United we stand, divided we fall - and your suggestion can only divide us.

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  • Identity - Authored by: Anonymous on Monday, August 23 2004 @ 08:02 AM EDT
The View from the EU Patent Proponents & Grokster
Authored by: Anonymous on Monday, August 23 2004 @ 05:44 AM EDT
> "There are no moves to set up a system similar to the US: the draft
Directive is actually intended to reinforce the boundaries established by case
law, and prevent any drift in a more liberal direction.

> "The governments of member states have been trying, through the
European Council and Commission, to consolidate and formalise the status quo in
European patent law. But this effort has been frustrated by a small but highly
organised and vocal lobby, based on a selective and romantic image of computer
programmers all working alone on their own projects."

> Ignoring the first point, which I don't believe is accurate,

Not a very worthy comment is it? If you think the EU governments and
institutions are lying, please offer some proof. SCOisms like this simply don't
you or, more importantly, the FOSS movement any good.

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durability of OS
Authored by: pyrite on Monday, August 23 2004 @ 01:16 PM EDT
I don't mean to fall on either side here, but one thing that I think must surely
affect the ways that many folks think of computers and software has to be the
relatively crappy reliability that many people have experienced in the PC world.
Perhaps mainframes are different - investing a six-digit figure for an Oracle
database to run on your mainframe has a much more solid feel to it than
investing $50 for a fancy GUI FTP client.

Windows 3.1 came and went, Windows 95 came and went, now Windows 98 - Linux
kernels 2.2, now 2.4 have come and gone, and still lots of distributions don't
have the upgrading thing figured out as well as they could.

My experience with a Debian machine that I set up some time ago has been very
good in this way - the upgrading process is wonderful, and relatively simple. So
far, nothing has been broken or destroyed by the countless upgrades I have
performed on the software.

I can also say the same thing for a FreeBSD OS I installed well over 2.5 years
ago. It's still current, although the upgrade process was a little more
nerve-wracking and is not something that I would undertake as casually as an
upgrade to a Debian machine.

I am sure that other distrubutions have similar setups, but generally speaking,
it's hard to pull off if you don't have broadband. And you do kind of have to
know what you are doing - and be willing to follow directions very very

I think that it will be some time before customers of operating systems can
experience a rock-solid reliability that doesn't need constant fixing, tweaking,
anti-virus updating, etc... I think that in part, this type of fast-moving
situation and the "digital" nature of these things is something that
lowers the percieved value of OS software and other software, and perhaps even
music and multimedia.

Generally speaking, a computer is not something you just buy and use. It's more
like an older British sports car or something. Constant tinkering required.

As technology progresses and moves forward, perhaps the image of software will
move towards the image one has of hardware - of something that is physical and
real. Right now, software comes and goes, to a greater or lesser extent. I
administer several Debian Linux machines, and I save the software packages that
are replaced by the upgrades as they come in througout the year, and I would
estimate that the upgrades amount to at least a couple gigabytes a year. In not
very much time, you could end up with a machine that doesn't have any of the
original software that you installed on it - like a living, cellular organism. I
think it's pretty cool actually, but it's not exactly the type of environment
where software is seen as something to be held on to - the updates come in, and
the old software goes. Nothing is held back. Of course, the value is still there
- but the value is not in the physical object of the software package itself, it
is in the access to fixes, upgrades, and progress. That's where the value is.
This is the challenge. In selling someone a software package, you would be
selling them the future, not the present. This must, obviously, create a
perception that software is not as "real" as a hard drive, for

So if patents are good for hardware, then, at least in theory, they should be
also good for software - or perhaps patents aren't good for hardware either -
imagine an open-source car made from the most reliable components available,
inexpensively - this is a good question.

Part of the reason we have this dilemna today is the short-lived and buggy
nature of software. If we can change this short-lived and buggy nature of
software, to a point where a 3-year old Linux install is still nice (what's
wrong with a 3-year old car or a 10-year old stereo amplifier?) - then the
public's perceptions will change, and perhaps we will be able to focus on other

The idea of purchasing software that depends on other software is still a new
idea. What if the software that requires that software to run gets a virus? What
if the hard drive fails? What happens to that software? It's just not the same
thing as purchasing a set of speakers, for instance - I think that we as a
society still just don't perceive software to be as "real" as we do
tangible, physical, objects. No doubt this has something to do with the way we
feel about patents. Unless of course, one wants to argue that patents on
anything are a bad idea. Perhaps this is something to consider, debate and talk

Obviously, patents on software can have a crippling effect, especially
considering the stage that we are in - personal computers are still relatively
new. Innovations and improvements will take place an an incredibly alarming rate
- having to get patents on innovations might very well slow down the rate of
progress - and this is what we need right now - progress. And then of course,
you have people abusing the patent system in the US, playing a game with it.

I think that there are solutions, but we all need to open our minds and talk and
listen and think and try to come up with positive and innovative solutions.

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How Do We Differentiate?
Authored by: Anonymous on Monday, August 23 2004 @ 01:34 PM EDT
If we want to get rid of software patents, how do we differentiate between software and non-software patents? I contend it's much more difficult than one might think.

Many of the software patents I've read don't refer to computers, software, coding, and so on. They describe algorithms which could conceivably be carried out by hand, without any computer. Are we to say "any invention that is best carried out through the running of computer programs cannot be patented"? How about inventions which are only partly software? How about when the logic is hard-wired into the machine? Are we to bar all patents that have sophisticated logic to them? Are we to say that if you use a computer to do something, you aren't violating any patent?

The Pandora's box you open when you try to differentiate between software and non-software is a serious technical hurdle. Perhaps readers can suggest ways to overcome this.

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The View from the EU Patent Proponents & Grokster
Authored by: BassSinger on Monday, August 23 2004 @ 05:35 PM EDT
I think you are approaching your opposition to software patents in a
less-than-optimal manner. You are making the (valid, in my opinion) argument
that things should change for those that want a free and open system. Those who
make and interpret laws are not known for responding positively to that type of

I think a more appropriate reasoning is that the regular programmers out there
need to be free to code as they see fit, without reference to the latest entries
in the patent office before they write a line of code. It shouldn't matter
whether they are working on open source or proprietary IP for their employers,
they should not need to change their style or design based on what someone else
has done and patented.

Case in point: In the early 90's I was working for a Fortune 500 company
developing software. I was asked to create a box that would perform certain
functions and would be data-driven. After thoroughly analyzing the
requirements I designed and developed an object oriented system and database to
perform these tasks. I had never heard of such a thing, didn't call it
"object oriented" or even know that such a concept existed, but it was
the easy and fast way to do that job. What would I have done if I'd had to
research the concept in the patent office and found that someone had already
done that and patented the process? It certainly would have put a damper on
my design.

It would also seriously impact the time it takes to write code if programmers
have to check any process they want to use, however simple or convoluted, to
make sure no one has patented it already.

I think it would improve your chances of convincing those who care nothing for
Linux if you argue on this basis: That it will essentially prevent development
of software if software patents are allowed in their current form.

Thanks for listening.

In Harmony's Way and In A Chord,

Tom ;-})

Proud Member of the Kitsap Chordsmen
Registered Linux User # 154358

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"Let Them Eat Cake", a lesson in cultural relevatisim...
Authored by: BitOBear on Monday, August 23 2004 @ 07:58 PM EDT
When I am pluming the depths of someone's knowledge of culture and history I
like to give them a three-question quiz:

1) Where did "The Confederacy" (a la the US Civil War) get its name?

2) In the balcony scene from Romeo and Juliet, Juliet says "Romeo, Romeo,
wherefore art thou Romeo?", what is Juliet asking?

3) When Marie Antoinette quipped "let them eat cake" what was she

The reason I ask these three questions are that they represent three pivitol
things to remember about viewing the past, and therefore about viewing all

The answers are:

1) The Confederacy was named after The Articles of Confederation; being that
system of government that our (US) current government directly supplanted by
technical treason. The lesson: everything comes from somewhere and people are
not wrong or arbitrary just because they lost.

2) Juliet is asking "Romeo, the man I love, why are you from my enemies
family?"; the word "wherefor" was supplanted by the shorter
"why" in the fullness of time. The lesson: just because things sound
the same doesn't mean that they are related. If you don't consider the times
and culture of the speaker you will lose valuable signal in the cultural noise
floor. (or, in ohter words, we can remake the past with a good ad campeign, and
still "quote accurately")

3) This is a hard one. Mis Marie was not suggesting that if the pesants could
not afford basic needs then they could simply fall back on luxuries.
"Cake" was not then a word that referred to the expensive confexion we
know today. Durring the manufacture of bread there is a certian amount of
spillage and splashing. This wasted psudo-dough which was "caked" on
various surfaces was scraped up, gathered together, baked, and sold to the
destitute as a way of keeping the losses of spillage contained.

So poor Mis Marie is often associated as above, i.e. "The suggestion is
impossible to implement and suggests it comes from someone lacking a
comprehension of the actual problem." This view itself is often used to
discredit the possibility that the quote is genuine.

In fact, the queen said something far more insidious than making a flippant and
impossible suggestion... "the poor cannot afford real food...? let them
eat waste."

The lesson? it's sort of the same lesson as the other two. It is easy to
dismiss an argument if you presume, but presume wrongly, where your opponent is
comming from "because we all know what he meant".

So how do I tie this back into the discussion?

Well, the original work is not wrong, in and as far as it goes. IF (and only
if) the manufacture of software is to be a business, then that business needs to
have a legal club wiht which to control its territory.

The failing is that OSS demonstrates that "manuracturing software"
isn't an essential and desireable business. All of us OSS types are in
business, but, in the example case of the Linux kernel or a GNU/Linux package
here or there, we are NOT and we do not INTEND TO BE in the "business"
of making an operating system.

We are, instead, in the business of doing our various businesses. I personally
write software for embedded test equipment. Others are in the business of
"rolling and selling a Linux distribution." And many want to sell
their services or expertise. But I can garantee you that none of the people who
wrote all those device drivers for the Linux kernel did so with the express
expectation of selling those drivers. They *needed* those drivers, or at least
*wanted* those drivers so that they could *use* those drivers for whatever
purpose they had in mind.

It is a mistake to preceive and present OSS as altruism. There may well be some
of that involved, but it is more usually a collective "small wish" by
a large number of people who each want to have and use something for some

The evolution we find ourselves amidst today is the moment-of-failure of an
economic organisim that cannot long nor well survive. The abberation of
"the software company" has had about thirty years so far, and it is
ailing. In the sixties (and before) everything was Open Source, more or less
and for the reason that it works well that way. This idea that the software is
a separate and sacrosanct business product is abberation. Fortunes have been
made, sure, and there is a dream of more to come, but even now the "big
players" of software are trying to create DRM and Dongles to make software
scarce and marketable. Microsoft doesn't really want to sell you Office any
more, they want to sell you "the office service" and "the
x-box" and god knows what else.

So yes, we would need to do the software patent thing if we wanted
"software" to be a business the way making and selling flatware is a

But it isn't a sustainable model.

Even with the laws in place, no *especially* with the laws in place, the
scarcity of software that monopoly would create would undermine the industry.

The software companies, and the dot-bomb visionaries, are basically trying to
sell ice while imposing a legal moratorium on water. They want to put out a
product and then outlaw the runoff. If "intellectual property" can
exist but it is made illegal to allow that codified thought to result in new raw
ideas, then where can that property be used?

Don't assault their ideas as impractical a-la Mrs Marie, instead appreciate that
they want to stop the rain and own the cold.

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