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Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan Ravicher
Wednesday, September 01 2004 @ 08:47 AM EDT

Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software

~ by Daniel B. Ravicher, Esq.
Executive Director, Public Patent Foundation

Many believe that patents pose a large threat to Free / Open Source Software. Although this may be true, Free Software is no more concerned about, and actually might be less concerned about, software patents than most other software developers.

First recognize that any patent that covers Free Software is going to cover non-free software, because licensing terms are irrelevant to a patent's scope. So, there aren't any patents that only threaten Free Software; they all threaten all software, regardless of license terms.

Now, assume there exists a patent that arguably covers Free Software and the patent holder brings a patent infringement law suit to stop such infringement. It is highly unlikely that the patent holder would receive a preliminary injunction, as they are highly unusual in patent infringement cases to begin with. Further, the equities and public harm would very rarely be in favor of the patent holder, because Free Software is a public good, on which many individuals, businesses, and government rely. Lastly, the wide spread distribution of Free Software would render any such injunction meaningless, unless it attached to every single possessor of a copy of the allegedly infringing code, a highly unlikely scenario for any Free Software project of significance.

This is where free software is very different from non-free software, and why patents are more of a threat to the latter, than the former. A non-free software product will have a harder time defending against a preliminary injunction as, although they might be able to argue equities, they will have much more difficulty arguing a public harm. Further, their product can indeed be easily stopped because they have complete distribution control over it.

Having virtually no chance at preliminary relief, the patent holder will then seek damages, but here they are in a catch-22 when it comes to Free Software. If they go after deep pockets, the defendant will, by the fact that they are a "deep pocket," be more than capable of defending itself against the patent assertion. Such defendants have a very high success rate in patent cases, as about half of all litigated patents are held invalid and many of those that are held valid are nonetheless held not infringed.

If, instead, the patent holder sues a little guy, there will be no money to recover, because the defendant is a "little guy." Additionally, there are several reasons why a deep pocket may step up to protect any such little guy. First, the Free Software product involved may be very important to the deep pocket. For instance, if a patent holder has a patent on Apache, the most used web server in existence today, they could sue the Apache Foundation, a small non-profit Free Software development organization. See Netcraft Web Server Survey Archives, (showing Apache having almost 70% market share in the web server market in February 2004). However, IBM and all of the other major distributors of Apache would have a vested interest in ensuring Apache, the product, wasn't defeated.

Second, a deep pocket competitor may be worried about a favorable claim construction, the pre-trial process of determining what ambiguous or arguable terms in a patent mean, resulting in the case with the little guy because it may believe that it is next on the patent holder's "to-be-sued" list. As such, the deep pocket may very well wish to impact the first claim construction where the little guy is involved to ensure that the claim construction is not a lopsided victory for the patent holder, because future litigations involving the asserted patent may simply adopt or be significantly impacted by that claim construction.

Therefore, a permanent injunction is the only truly threatening remedy available for a patent holder bringing a patent infringement suit against Free Software. However, knowing that patents cannot cover functionality, and can only cover certain structure that accomplishes functionality, it is highly likely that before a patent infringement case is tried and appealed, the Free Software at issue can be designed around the asserted patent. Further, it is also highly likely that the Free Software community, a very participatory and technically sophisticated group, will be quite capable at finding prior art to challenge the patent's validity.

In essence, the common theme is that, because of the network effects inherent with Free Software, no party or project of any significance can be singled out for attack on the basis of patent infringement. It is the opposite of a free rider problem.

However, this does not mean that patents pose no threat to Free Software. The burden placed on parties defending themselves from assertions of patent infringement is indeed substantial, in terms of both costs and distraction. Significant resources will be required to defend Free Software from patents, but the battle can - and will - be won.


Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan Ravicher | 207 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: Anonymous on Wednesday, September 01 2004 @ 08:51 AM EDT
you know the drill

[ Reply to This | # ]

Silicon life forms, OT's and other miscellanies here please
Authored by: Wol on Wednesday, September 01 2004 @ 08:51 AM EDT

[ Reply to This | # ]

0ff topic conversations
Authored by: Anonymous on Wednesday, September 01 2004 @ 08:52 AM EDT
ditto as above ;-)

[ Reply to This | # ]

Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan Ravicher
Authored by: Anonymous on Wednesday, September 01 2004 @ 08:56 AM EDT
Good angle on the patent issue - maybe if someone gets
silly big giants like IBM and Novell will start a patent
war as payback, and hopefully that's enough to keep
everyone sane and out of the patent madness.

Personally, I'm with RMS on this, i'd like to see the back
of patents on copyrights with software. I think of
artwork, imagine if Monet had patented his art is a combination of art and
technology imho and I personally think that patents only
suit the large player - the small software developer is
lost and that's not a fair and equitable playground.


[ Reply to This | # ]

Software Patents - a US problem only (for the moment)
Authored by: DFJA on Wednesday, September 01 2004 @ 08:59 AM EDT
I think there is one relevant point that is not mentioned here - even if a court
decides that a patent holder has been infringed, this will only be valid for the
jurisdiction of that court. As the US is as far as I know the only country that
recognises software patents, this will not be a problem for the majority of free
software users.

Of course if software patents come to Europe, then it will be a problem for a
lot more free software users, but still a minority.

The remaining countries will be able to carry on innovating and reap great
technical benefits as a result - potentially taking over as superpowers in the
technology world.

This is the reason why software patents should not be allowed in Europe, and
should be banned in the USA - they are only capable of causing harm to those
countries' economies.

43 - for those who require slightly more than the answer to life, the universe
and everything

[ Reply to This | # ]

Authored by: TFBW on Wednesday, September 01 2004 @ 09:05 AM EDT
I made some similar points (in passing) in a critique I
did of the Wildstrom/BusinesWeek article reported here on
Groklaw a couple of weeks ago.

[ Reply to This | # ]

If you are a little guy...
Authored by: Anonymous on Wednesday, September 01 2004 @ 09:08 AM EDT
I disagree. Just as with the RIAA cases, just the cost of litigation - the care

and feeding of a lawyer to defend yourself - will scare you off if accused. The

ability of an accusing lawyer to cost you money even before going to a trial
can scare off the little guys. Look how much SCO's false accusations have
cost IBM over the past year even without a decision yet to be made. For
example, you can't just write a letter to the court in response to accusations.

You have to write it in a special legal format - thus needing at least a
paralegal to help you out in writing responses. And if you don't respond,
you'll lose the case. So if you are a little guy, figure on perhaps at least
$3000 in costs to start off with just to obtain a patent lawyer to defent
yourself. This is not an inconsequential cost. No wonder the little guys in
RIAA cases settle quickly for an average of $3000 even if unjustly accused.

[ Reply to This | # ]

Also, gathered permission from upstream GPL distributers
Authored by: NZheretic on Wednesday, September 01 2004 @ 09:11 AM EDT
If you are concerned over the treat of lawsuits over intellectual property then you are actually in a better legal position using GPL'ed Linux than using Microsoft's products.

Since the above post, Timeline Inc subsequently sued Cognos for use of Microsoft's SQL server. On February 13, 2004, Cognos settled at cost to Cognos totaling $1.75 million.

[ Reply to This | # ]

OK, so how does a "big guy" step in?
Authored by: Jude on Wednesday, September 01 2004 @ 09:28 AM EDT
I'm curious to know just what legal maneuvers a "big guy" could use to
"step in"? If some patentholder sued me, how would (for example) IBM
be able to come to my rescue?

[ Reply to This | # ]

Yet another reason.
Authored by: Anonymous on Wednesday, September 01 2004 @ 09:36 AM EDT
Open Source software by its open nature puts it's IP in the
public domain as soon as it is published, whereas proprietary
software is kept secret, and so an idea thought up by a
proprietary vendor is not in the public domain. As a result
someone else who comes up with the same idea later, can
patent the idea and sue the proprietary vendor who has been
using the idea for years before the patent was filed. This
cannot happen with Open Source software.

Open Source software's rules that prevent distribution under
proprietary licenses and so lead to coding out patented
technologies ensures the most patent un-encumbered product

Also the fact that Open Source is so ubiquitous means that if a
patent holder wants to maximise his revenue, the best
approach is to grant a royalty free license in perpetuity for
software licensed under GPL, and require proprietary software
vendors to pay royalties. The reason is that granting a royalty
free license for GPL software will make the technology's use
widespread, thus forcing proprietary vendors to license it in
order to maintain compatibility. If the patent holder tries to
extract revenue from open source software, the patent will be
coded around and the alternative standard will be adopted
instead. Nobody likes to adopt patent encumbered technology:
not open source software vendors, and not proprietary
vendors. If something is patented, then people will adopt
something that isn't (as with GIF and PNG).

[ Reply to This | # ]

Missing the point
Authored by: Anonymous on Wednesday, September 01 2004 @ 10:01 AM EDT
Nicely written but completely misses the point. Litigating software patents
isn't about the money (at least not in the damages sense) it's about controlling
the market (see SCO).

[ Reply to This | # ]

A weak point of open source
Authored by: Anonymous on Wednesday, September 01 2004 @ 10:18 AM EDT
A point not mentioned which is a weakness of open source wrt closed source is
the mere fact of disclosing the source code helps a lot the discovering of
patent infringment.

[ Reply to This | # ]

Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan
Authored by: Anonymous on Wednesday, September 01 2004 @ 10:19 AM EDT
This seems to me to rather like "if you don't like the law then keep breaking it until it gets changed".

Not the sort of attitude that will get business and Government on our side.

[ Reply to This | # ]

Patent extortion: a real fear?
Authored by: Anonymous on Wednesday, September 01 2004 @ 10:20 AM EDT
I would argue that a GPL type license might be the best possible protection for
the small guy. Say you are Microsoft and want to put a small competitor out of
business. If he is using a closed source license, just tell him to sign over
the code or you will bankrupt him. That will not work for GPL'd code because,
even if the copyright is transferred, the permission to distribute is not
withdrawn. Poof goes the motive to litigate.

This makes it more important than ever to get comprehensive validation of the
GPL in court.

It seems to me the BSD license would not be as good a protection. Maybe this is
why Microsoft is concentrating its FUD on the GPL.

[ Reply to This | # ]

If it is all soo easy ...
Authored by: Woelfchen on Wednesday, September 01 2004 @ 10:32 AM EDT
... what are software patents good for at all?

[ Reply to This | # ]

AH..The M.A.P.L.E. Doctrin.
Authored by: waltish on Wednesday, September 01 2004 @ 10:40 AM EDT
Yep.. Mutualy.Assured.Patent.Litigation.Expenses....May well end up keeping some
of the Big Players from going at each other....But I think the campaigne from
the Dark Side will be aimed at Harrying the Small Players and generally spoiling
what they can.


To speak the truth plainly and without fear,Is powerfull.

PS: Beware the Gestank of SCO.
PPS: SCO's argument does not withstand analysis.

[ Reply to This | # ]

Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan Ravicher
Authored by: Anonymous on Wednesday, September 01 2004 @ 10:51 AM EDT
I think the real patent threat to FOSS is patent-encumbered standards. Industry
players can license each other for small costs, but free software authors cannot
afford (or even calculate) even the most reasonable and non-discriminatory of
license fees.

This is why there was such a stink when the W3C proposed that patented
technologies could become W3C standards.

Remember there's nothing more dangerous than a wounded mosquito (SCO).

[ Reply to This | # ]

Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan
Authored by: Anonymous on Wednesday, September 01 2004 @ 10:59 AM EDT
There is an other reason why open and closed source differs regarding patents.
When a opensource software program is (accused of) infringen a patent, the user
can remove the infringing part themself. This is not allways possible, but it
is easier with opensource that closed source.

[ Reply to This | # ]

Good points but missing the obvious
Authored by: dyfet on Wednesday, September 01 2004 @ 11:16 AM EDT
I do agree with the overall thesis that the consequences of patent litigation and software patents in general could be worse for proprietary software producers than on those producing free software. At the very least, the danger is certainly no less. However, patent enforcement is at the discretion of the litigent and certainly can be done selectivily and descriminitorly to deny specific products from the marketplace from select producers.

The premise that GNU/Linux, or even select individual producers of GPL software, face a unique software patent threat is based on the analsys that a certain company, and let's name it here; Microsoft; which has a documented history of using illegal business practices and openly disregarding our (and other nations) competition laws would choose to selectivily target such developers and products in an attempt to selectivly remove free software from the marketplace.

Selective enforcement can come in many ways. For example, Microsoft could choose to patent something but then make selective cross licensing agreements with select companies it chooses to allow in the marketplace. They could then try suing FOSS producers to encourage FUD and try to convince others that somehow FOSS has a greater patent risk. It is true that to a company that is willing to ignore anti-trust laws and chooses to selectivily use patents descriminativily could put FOSS at greater risk, but that would be the result of selective action by market gangsters rather than anything inherent to FOSS being more vulnerabe to software patents.

The best answer, of course, is to eliminate software patents. Software is already copyrighted, after all, and subject to contract law as well. In other technical fields where patents are permitted, copyright protection is often denied, and the capital costs to produce those patentented products are generally very high. They also deal directly with material things. Neither of these things are true for software, nor do we have patents on literature or other forms of expression of ideas. But I have little expection of seeing our patent office returning to sanity in my lifetime except as the consequences of a patent litigation meltdown. Hopefully the Europeans will do better and manage to avoid software (and business method) patenting in the first place.

[ Reply to This | # ]

My proposal, redux
Authored by: Anonymous on Wednesday, September 01 2004 @ 11:18 AM EDT
In an earlier post I suggested that the patent holder bear costs of litigation.
If a 'little guy' patent holder sues a 'deep pocket' and wins, the cost to
defend may be recovered from the suit. If the 'little guy' is not certain about
his case, and his lawyer as well, no case is brought. If a patent holding 'deep
pocket' sues a 'little guy', he will want to be certain that the case has merit;
or it just makes the deep pocket a little shallower, I would think not a
pleasant prospect. If a 'little guy' sues another 'little guy', besides the
cost of litigation one would have to consider what could be recovered; and only
significant patents would be litigated (i.e. costs would have to be recoverd
down line from licensing the 'significant' patent). Finally, if a 'deep pocket'
sues another 'deep pocket', the cost of litigating both sides would certainly
restrain frivolous suits. These suggestions should apply only to software

[ Reply to This | # ]

Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan
Authored by: blacklight on Wednesday, September 01 2004 @ 11:21 AM EDT
Back in the bad old days of the Western European absolute monrchies, courtiers
who had won their king's favor through sufficiently enthusiastic butt kissing
would get a <i>patent</i> from him, giving them monopoly control of
say the silk trade, or gold mining in specific parts of the world, or spice
trade with whatever external entity. So the king's patent was essentially an
award of a monopoly - I am probably preaching to the choir on groklaw when I say
that monopolies hardly foster innovation because there is no competition to
motivate anyone to innovate. Further, monopolies have a long-term deleterious
effect on the economies they victimize.<br><br>

I find the USPTO's patent award system, particularly with respect to software
patents, a throwback to these bad old days: the USPTO will award a patent or
monopoly based on little more than a cursory review of prior art in exchange for
the filing fee. Whether the patent is legitimate or not is none of its concern,
because raking raking in the fees is the only thing it is concerned about. This
is why I am saying that the USPTO's award system is corrupt.

So I am unscrupulous and successfully file for a dubious patent, in exchange for
the filing fee. I now have the "patent" or monopoly to harass anyone I
think is infringing. If I am lucky in that the other guy does not have deep
pockets, I can even foce him to turn over his legitimate technology to me, as
Bruce Perens has mentioned that a number of Open Source developers have been
forced to turn over their technology to patent monopolists. So here I am,
seizing someone else's legitimate technology thanks to a dubious

The idea that software patents favor the small companies is baloney: of you
can't afford the $25000 filing fee for a software patent, I doubt that you can
afford the $1 million it would cost you to challenge someone else's dubious
patent. On the other hand, a large company would think nothing of spending the
$1 mil that would knock out your patent if it were so enclined. So you might
think twice about going after infringers with deep pockets. In conclusion, the
consequences of the patent award system are corrupt.

The patent award system as it stands in the US is corrupt, and its corruption
amounts to a restraint on trade that should be declared illegal by the WTO.

[ Reply to This | # ]

I would like like enlightment !!
Authored by: niko on Wednesday, September 01 2004 @ 11:22 AM EDT
For a start, I haven't seen any threats made by MS with the use of patents
and all. I have seen a lot of talk about it, but all made by some people with
some interests in this matter.
Most of the time MS is the target of Patent infrigment cases.
They use a lot of FUD and stuf, like compareng Windows 2003 against some
older versions os Linux and Samba server, or on different HW, making also some
modifications so that the result would be in their benefir. I think IBM used the
same tactics at some point. Maybe still uses them.
Also, why the big guy would step in for you? Unless they have a bussines
around your product (like WebShere, or really reliable OS for your mainframe),
you are on your own. Not exactlly on your own, because some opensource guys will
help you with previos art and stuf, if it exists.
But less get real. Linux is good for servers. Makes some inrods in embedded
(I think Sony use it very much). Still on desktop is not good. It is the
grandmother market. make, make config, make install?? Why not setup, next, next,
finish! I use Linux as my desktop, but I have patience, I have reson, I want to
know how to use my computer and how it functions. But for some people, the TV is
the thing they want to know more intimtly, or their car. Why would they want to
know the how to copy and to install some module to make their video card work. I
am satisfied when I make it work. He'l just be frustrated. And go to MS, or
maybe Apple (another control freaks, don't jump, by they are).
I will use Linux, I will develop on it, but I will not throw it at people and
call them ignorant and stuf if they prefer Windows instead. It is time to stop
bashing those people that just don't agree with us. Simply calling them trols
wont help. It will be like OK, so you think your some smart guy and I am stupid
... and so on and so on. MS wont go puff tomorow, and his future is not
garanted. Just live with that. Yhe real suport for Linux is using it.

Dintre sute de catarge care lasa malurile, cate oare le vor sparge vanturile,
valurile ...

[ Reply to This | # ]

Open-source more likely to be caught
Authored by: davidwr_ on Wednesday, September 01 2004 @ 11:59 AM EDT
A patent violation in an open-source project is more likely to be caught than
one in a close-source program.

Some patents are visible in the end-user code, but many, such as more-effecient
ways of doing this or that, may not be nearly as visible, if at all.

Of course, this works both ways:
A FOSS customer who looks at the code may be aware of a potential patent
infringement and publish a workaround BEFORE the patentholder is even aware of

A closed-source vendor may be able to get away with using
"under-the-hood" patented code until long after the code is obsolete
or the patent expires, because, quite literally, nobody will notice outside his

Hmmm, I wonder if organizations with MS source licenses will be liable for
non-disclosure violations if they notify patentholders of patent violations they
find? My guess is yes. My guess is there are also plenty of non-MS patents in
MS code that MS hasn't yet licensed, some of which MS knows about either
officially or unofficially* and some of which it doesn't.

*unofficially = a developer notices and verbally tells his higher-ups, but
there's absolutely no paper or voice-mail trail, i.e. "plausable

[ Reply to This | # ]

You misunderstand me, and I am not a troll.
Authored by: Anonymous on Wednesday, September 01 2004 @ 11:59 AM EDT
I am talking about patent IP being in the public domain not
GPL. I'm sorry if this was unclear.

When there is prior art which has been made public, then the
patent IP is said to be in the "public domain".

GPLed software is of course copyrighted, but any methods or
ideas that it incorporates with regard to patentable material is
in the public domain when the code is published. Hence
someone else cannot stop GPLed software by filing a patent
subsequently as they can with methods or ideas in proprietary

The reason I mentioned GPL is that it a free grant of the patent
to GPL licensed use is required to force proprietary vendors to
pay patent royalties, since any free patent grants to BSD style
licensed software will not prevent the patent grant being
incorporated into a proprietary software, and hence the
proprietary vendor will not have to pay the patent holder

[ Reply to This | # ]

What a public good is
Authored by: k9 on Wednesday, September 01 2004 @ 12:18 PM EDT
It's a well-defined economic concept - a public good is a good which is
non-rivalrous (use by one does not prevent or increase the cost of use by
others) and non-excludable (it is impossible or impractical to prevent use by

BSD or PD software is probably a pure public good. GPL software isn't, the GPL
does indeed use under some circumstances.

A problem with public goods is free-riding, their use by those who have not
contributed to their provision. Most attempts to address this introduce some
limited form of rivalry or excludability, and in a way, the GPL is an example of

[ Reply to This | # ]

The "public good" defense
Authored by: Anonymous on Wednesday, September 01 2004 @ 12:31 PM EDT
IANAL, but public good vs. public harm here refers to a basis for getting the
courts to reject an injunction against the further distribution and use of the
software in dispute.

If substantial public good come out of the availability of the software and
substantial public harm would come out of an injunction, then the patent holder
would need to present a significantly stronger argument for why the court should
issue an injunction.

If lots of companies, people and institutions, including the government, deped
on the continued ability to use and distribute a piece of software, such an
injunction could cause massive disruption even _before_ the patent holder has
proven their case. This is an unreasonable burden on what might be innocent
third parties.


[ Reply to This | # ]

Can't patent functionality?
Authored by: pooky on Wednesday, September 01 2004 @ 12:57 PM EDT
Someone needs to point this out to Acacia, functionality is ALL they have
patented. Their patent is like holding a patent on throwing a baseball through
the air. They didn't invent the baseball or the air, but claim they came up with
the idea to throw it and everyone else who wants to toss one has to pay them a


If at First You Don't Succeed, Skydiving Isn't for You.

[ Reply to This | # ]

Authored by: Anonymous on Wednesday, September 01 2004 @ 01:02 PM EDT
The troll Daniel Wallace is showing how stupid he is again.

"The grosksters being experts on licensing law, should write
the The United States Court of Appeals for the Federal
Circuit and correct them on their intellectual property law
precedent... Tell them Pamela has over ruled The United
States Supreme Court precedent set in 1927 concerning
intellectual property licensing principles"



[ Reply to This | # ]

  • Misinformation - Authored by: Anonymous on Wednesday, September 01 2004 @ 01:30 PM EDT
    • Huh? - Authored by: Jude on Wednesday, September 01 2004 @ 01:39 PM EDT
      • Huh? - Authored by: Anonymous on Wednesday, September 01 2004 @ 01:44 PM EDT
I know this is OT, but is Groklaw undergoing a DDoS attack or something? (n/t)
Authored by: John M. Horn on Wednesday, September 01 2004 @ 01:04 PM EDT

[ Reply to This | # ]

Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan
Authored by: Anonymous on Wednesday, September 01 2004 @ 01:12 PM EDT
The last few lines of this fit very well with an article by Bruce Perens I read
the other day, in LinuxUser magazine. Mr.Perens article talks about the
protection by some as Red Hat, HP may not be enough, Mr. Perens as I remember
continued to reference the SCO case too. The approach to use SCO as a measure of
a threat is weak IMO.

IBM continues to fight the SCO lawsuit, costing IBM millions of dollars and the
opensource community nothing; but the opensource community will win anyway with
no thanks to IBM. The 'deep pocket' IBM, just as easy could have gone along with
SCO, save the millions of dollars on a legal fight, and if IBM did that, where
would it all be today.

To spend the money of someone else is easy enough, very easy when they do allow
it without asking you if you want them to. But should IBM be asked if they think
it was money well spent with all the threats still about. Maybe next time, IBM
will ask: Should we take on these threats ?. Should thank anyone that is
fighting for opensource in the courts and ask nothing for it, no matter who they

Last thought on Mr. Perens insight:
If a number of large 'deep pockets' cannot pay the cost of the legal fights; why
would anyone belivev that one can ?. Note, that if all the 'deep pockets' put
all their funds together and that is not enough; then how is taking those same
funds and giving them all to one, going to be enough.

[ Reply to This | # ]

Four suggested changes for patents
Authored by: lightsail on Wednesday, September 01 2004 @ 01:23 PM EDT
The patent process has four failings that need to be remedied.

One- The invention must actually have been built to the exact detail of the
claims, no more, no less. The model requirement was removed for cost reasons by
the Patent Office. This change allows the patenting of ideas that have not ever
been made into reality. This has lead to submarine patents that only exist to be
infringed on at a later date. The requirement that a fully functional model be
built before the submission that meets all claims needs to be enforced. This
would be a required exhibit for any patent infringement action and define the
invention in real terms. The inventor would have to certify the existence of the
working model and store it for the period that the inventor chooses to enforce
the patent.

Two-A software patent should require actual innovation. A software patent would
require that the invention be more than the assembling of common software
components that are part of a software building system into a working piece of
software. If a skilled user of a software development product, given the project
goal, could re-create the software invention, then the software should not be
eligible for patenting.

Three- The software invention must also be able to function fully without
reliance upon any open standards, operating system standards, or networking
protocols. This goes to originality, that the underlying standards, operating
system and networking protocols actually are more significant that the
invention, in terms of the full operation of the invention. Thus the claims are
only party based on the invention and part based on pre-existing software. For a
software patent, the invention should be able to be platform independent as well
as network independent.

Four- The act of patenting should attach a measure of liability. The failure of
a patent enforcement action should have a large downside built into patent law.
The patent holder that had a failed enforcement action should be liable for a
minimum of three times the original damage amount. Class action challenges to
patents would also be similarly handled if the patent holder was threatening
action or if the patent was clearly over broad or obvious. The lack of downside
has lead to mass patenting of thousands of trivial, obvious and unoriginal

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Patented Functionality
Authored by: overshoot on Wednesday, September 01 2004 @ 01:43 PM EDT
However, knowing that patents cannot cover functionality, and can only cover certain structure that accomplishes functionality

Isn't this overstating the case? I could swear that quite a few high-profile patent cases (Eolas v. Microsoft, for instance) avoided the "structure" issue by patenting a process which was so generalized that interoperation was covered by definition.

Likewise for data structures. Quite a few of Microsoft's patents amount to patents on data structures, so that if you want to interoperate with any systems (Microsoft's, for instance) that exchange data in that format you can't avoid infringement.

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To expand on this idea a little...
Authored by: kawabago on Wednesday, September 01 2004 @ 02:49 PM EDT
When a copyright holder licenses her code as Free/Open Source Software it
enriches society and becomes a public asset. How can benefitting all of society
be a bad thing?

In a similar vein, the Interstate highway system was built after the US saw how
the German war machine benefitted from their highway system during and pre WW
II. The free Interstate highway system provided the infrastructure necessary
America to become the industrial superpower it is today. Free/Open Source
software is the Interstate highway system of the 21st century.

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  • When it is forced. - Authored by: Anonymous on Wednesday, September 01 2004 @ 03:38 PM EDT
Nice theory, not the real world though
Authored by: DaveAtFraud on Wednesday, September 01 2004 @ 03:49 PM EDT
I sure wish the world worked the way the article claims. Unfortunately, it doesn't.

As an example of reality, consider how a little litigation piranah called PanIP was able to shake down people with patent infringement claims for several years before one of the victims stood up and organized an effort to fight back. This link will bring up all of the artcles on slashdot concerning PanIP. Read through a few of them to see how software patents are abused in the real world. And, yes, these patents could have eventually affected big guys like IBM and lots of other large players but PanIP was smart enough to only go after people who apparently didn't have the resources to fight back and, sadly, this worked for several years.

The problem is that not everyone who gets hit with a software patent infringement claim knows about resources like PubPat or Groklaw (or even Slashdot for that matter). The patent infringement claim probably isn't aginst the F/OSS itself but against how it is being used (PanIP didn't really care if the victim's e-commerce platform was open or closed source). Finally, its also generally much cheaper to pay up than to fight (just like an extortion racket, the price is set to make the decision easy to make).

I guess you can make an argument that you are no more exposed to software patent claims with open source than you are with closed source but that hardly means that you're not exposed.

Quietly implementing RFC 1925 wherever I go.

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Audits of proprietary source?
Authored by: Anonymous on Wednesday, September 01 2004 @ 03:51 PM EDT
I've alwasy wondered if you can have your commercial vendors audit their software products for patents.

Proprietary vendors will let important customers audit their source code for security reasons. If I'm an important customer, it seems I should have the ability to audit my vendor's product for patent violations as well.

After all, if my vendor would lose a patent fight, I would hate to have systems I depend on yanked out from under my business even more than I would mind a security hole (which can be easily patched).

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Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan Ravicher
Authored by: wings on Wednesday, September 01 2004 @ 04:19 PM EDT
I'm not sure that the bigger targets, or even the actual FOSS developers would be the ones bothered by patents. It seems to me like the users of FOSS could be at risk from Patent holders, regardless of whether the patent is really valid or not, and my concern would be that the patent holders would go after small to medium size users that might find settlement or licensing cheaper than fighting, much like in the RIAA filesharing cases.
What makes me think this is the PanIP< /a> issue< /a> from a couple of years ago. Granted, this was regarding e-commerce, but it doesn't seem like much of a stretch to apply this 'technique' to FOSS users, valid patent or not.
Luckily, this particular set of patents is in process of being
reviewed, and it looks like they may be invalidated, but it took many of the affected businesses pooling their resources to fight this. Had PanIP sued businesses at a slightly slower rate, they might have gotten away with this for longer than they did.
A big target like Apache might get backing from someone big with a vested interest like IBM, but there are lots of slightly smaller projects with enough users that might make attractive targets for an IP holder out to make a buck.

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Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan
Authored by: Anonymous on Thursday, September 02 2004 @ 01:01 AM EDT
Distinction about threats and lawsuits.

The SCO case has been made the center of much talk about threats of lawsuits
over patents. SCO to date, has only sued SCO's licenced Unix user or business
partners; the lawsuits are not about any of the other 1495, that SCO sent threat
letters to. The distinction about threats and lawsuits in SCO's case is very
clear on its own.

The Eolas patent suit win over Microsoft is not a fact to support the threat of
future lawsuits. Eolas did not have to spend millions of dollars to win. Eolas
found 'cold hard facts' and filed a complete lawsuit based on them. This was the
key, and Eolas used the legal services of a few, not many costing thousands of
dollars every turn. The fact is Eolas was very smart, the largest cost was time.
The point with the Eolas case is: Eolas has the facts and made a clear &
clean case of it and won. SCO has no facts and spends millions to fail. Few
looking to protect their IP as patents, will not try very hard to spend millions
to win their case.

On one hand we have a company that spending millions to file lawsuits; while
another smaller company wins over the largest software company in the world. No
matter Eolas's reason(s) for the lawsuit, they did it. The real key to Eolas's
success was being prepared with the facts, not money. Any good lawyer will tell
you 'to prepare' a case is 60% of the way to winning it. No, you may not win
after all, but a less then well prepared case has failed.

The talk about lawsuits and the cost has been the center of the buildup that has
many jumping. Learn from Eolas, as a community of millions it can't be hard to
prepare the facts to defend off lawsuits. In the business world, when donig the
days business, everyone prepares, it is normal and when problems arrive, saves
time and money. Being prepared means working together, if the bond of the
community is real, this should not be a problem. A community of millions can on
their own setup non-profit leagl funds. Being smart and working together, being
prepared for a lawsuit case will save time and money.

Respect will come when those outside community, see the community, not just the
large distros or users, being prepared and having all the funds for legal
matters. The community built the opensource world, now stand up and fight for it
on the community's own.

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Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan
Authored by: marbux on Thursday, September 02 2004 @ 03:44 AM EDT
Further, the equities and public harm would very rarely be in favor of the patent holder, because Free Software is a public good, on which many individuals, businesses, and government rely.
This sounds wrong to me. Or at least, only partially right. However, my ignorance of IP law is too deep for me to be sure. Maybe someone with more experience in IP law will critique the following? To understand why I think the quoted statement is wrong, you must first realize that at least in theory, a court will only decide whether and how to issue a permanent injunction after it has decided that the plaintiff has won on the merits of the case, that is, after the court has already decided that the defendant developer infringed on the plaintiff's patent rights. Also important is that the harm to the patent holder is primarily or purely financial, so his injury is not considered irreparable since it can at least in theory be compensated for by an award of damages.

Whether to impose a permanent injunction is decided under principles of equity. One of equity's principles is that a party seeking the aid of a court of equity must come before the court with clean hands. A consequence of that principle is that a federal judge will not ordinarily consider a continuation of the same type of unlawful conduct involved in the case to be in the public interest.

What a court might more likely rely on in deciding where the public interest lies is effects on people and entities not guilty of any equivalent wrongdoing. E.g., perhaps hospitals and other emergency services rely on the software involved in order to save lives and minimize injuries. Because the harmful consequences of an injunction extends to people who did not themselves violate the patentholder's rights, a judge would likely decide that the patent holder would be confined to its remedy in money damages.

As a practical matter in the case of a penniless infringing FOSS developer, such a ruling might trigger a flood of claims against deep-pocket software users (as opposed to developers). But I have a vague recollection of reading somewhere that purchasers of infringing products aren't liable for patent infringement. Also, query whether the result is different for somone who has only a license to use the infringing product and does not own it.


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Authored by: Anonymous on Thursday, September 02 2004 @ 06:57 AM EDT
If anyone has any doubts about the destructiveness of patents try reviewing
Edwin Armstrong vs RCA over FM(Frequency Modulation). This occured in the 20's
or 30's


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Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software, by Dan
Authored by: Anonymous on Thursday, September 02 2004 @ 03:34 PM EDT
What legal repercussions might exist for knowingly filing a patent invalidated
by prior art? For deliberately ommiting reference to such work? Perjury in the
claim of invention? Fraud?

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purchasing a license for a patent
Authored by: Anonymous on Friday, September 03 2004 @ 11:38 PM EDT
Should add a note mentioning that it is easier for commercial proprietary
software distributors to purchase a license for its users than for someone
distributing GPL'd software (see its section 7).

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Midsized End-Users?
Authored by: Scienter on Tuesday, September 07 2004 @ 06:22 PM EDT
If you are CTO of a medium sized company, you should be worried about Linux
patents. You probably can't afford to litigate, but you are still liable for

There are many mid-sized companies using Linux who are unable to afford the
average $3,000,000 cost of litigation. If I owned a patent covering something
in Linux, I would target midsize companies having (a) enough money to settle
without going bankrupt, but (b) not enough money to litigate. Lemelson used
this tactic effectively, suing grocery stores for bar code patent infringement
whilst artfully keeping dangerous bar-code manufactures out of the lawsuits.

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