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Software Patents are Like Smoking ~ by Marten Mickos, CEO MySQL AB
Tuesday, October 25 2005 @ 05:14 PM EDT

Software Patents are Like Smoking
~ by Marten Mickos, CEO, MySQL AB

Society crossed an invisible but decisive border when it started to allow patents not only on tangible inventions but also on computer software. It must have felt good at the time, but today it is becoming increasingly obvious that software patents do no good. In that regard software patents are like smoking – it started with an experiment to improve health. It tasted quite good and it soon became a fashion statement. But today smoking kills not only those who smoke but also those who breathe nearby. And yet it is very difficult to completely eradicate smoking. Those who smoke stubbornly defend their right to do so. Perhaps there is even an argument to be made where smoking is good in some circumstances. But overall it is a habit that would deserve to be stopped. The same applies to software patents.

The rights of an inventor or author need to be properly protected. Otherwise we will soon have no inventions or new creations. But when it comes to software, copyright is quite sufficient protection. In my mind software should be treated like architecture, music, literature, and journalism and not like mechanics, electronics or biochemistry or other traditional industries. Here is my logic.

First of all, in traditional industries producers produce and users only consume. But with software, users produce even more than dedicated producers. The Citibanks and Coca-Colas of the world collectively write more software than the Microsofts and IBMs. Similarly, music and literature is produced both by professional producers and by private consumers. When production is so heavily tilted towards users, patents make no sense. Or are you saying that a 15-year old who develops a great software algorithm at home should do a patent search (among tens of thousands of patents) to verify that he/she is not infringing?

The second argument has to do with determinism. For a system of patents to be functional, there needs to be an easy way for inventors to verify that their inventions do not infringe on other patents. Either the number of patents has to be very limited, or the terminology needs to be so well defined that you can search by keyword. Neither of this is true for software patents. As a result, it is absolutely prohibitive to make a reasonable patent search to verify non-infringement. The consequence is that nobody can be safe. With copyright you will always know if you infringe on someone else’s right because you can do so only by actually copying code. But with patents you cannot know. The system is not practically deterministic.

The third argument has to do with the parameters of the software industry. A patent can take long to get approved, and it may be in force for 20 years. But technology cycles in the software industry are much much shorter. In traditional industries, you may have a very limited number of patents for each product you produce. But a software product may extend over areas that are covered by hundreds if not thousands of patents. In other industries, patenting and patent defense is a small fraction of overall R&D costs. But in the case of software, patents take up a much bigger portion of the R&D budget. As a result, patenting and patent protection becomes prohibitively expensive in the software industry. The only ones who gain are the patent lawyers.

Many companies apply for software patents for defensive reasons, thinking that if someone challenges them with a patent, they can retaliate with their own patent portfolio. But today the software industry is seeing a new breed of companies - so called patent trolls – that have no other business than acquiring patents and then extracting royalties from other businesses. No patent portfolio will help against a troll, because they have no production or sales of their own that you could threaten.

This leads to the “3 Gazillion Peril”. A gazillion in this context is a unit for patent cost in a company. In a small company it can be a million; in a large one it can be hundreds of millions. The first gazillion gets spent on defensive patenting, because you don’t want to be any worse off than anyone else. When that’s done, you will have shareholders requiring you to make the best possible use of your assets (and probably they have heard that IBM makes a billion a year on patents). So you approach your competitors and tell them they have to pay a gazillion in patent royalties to you. But of course they have built their own patent portfolios, so you end up cross-licensing your patents with no money changing hands. In essence, you have now lost your second gazillion. Then a patent troll appears on the scene and demands patent royalties from you. You try to defend yourself with your own portfolio, but to no avail. In the end you pay the troll a gazillion in royalties. By this time you have spent 3 gazillion of your valuable currency, and you have achieved absolutely nothing.

This is why I believe that software patents are bad for anyone developing software, whether user or producer, large or small, closed source or open source. Open source companies and organisations have been the first to smell the danger, but everyone will be hurt. Fortunately we have seen a good debate on the topic lately, and we scored an important victory when the European Parliament rejected the software patent directive in July this year. For more information on this critically important campaign, please visit which is sponsored by MySQL AB and other companies.


Software Patents are Like Smoking ~ by Marten Mickos, CEO MySQL AB | 321 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here Please
Authored by: mondo on Tuesday, October 25 2005 @ 05:19 PM EDT
Not that there will be any :)

[ Reply to This | # ]

Off-Topic Posts
Authored by: mondo on Tuesday, October 25 2005 @ 05:23 PM EDT
For all that off-topic-y goodness.

Make links clickable: Change "Post Mode" to 'HTML Formatted' and use
all those wonderful commands in red (below the box you type in).

And don't forget to check for dead links.

[ Reply to This | # ]

Software Patents are Like Smoking ~ by Marten Mickos, CEO MySQL AB
Authored by: WhiteFang on Tuesday, October 25 2005 @ 05:50 PM EDT
Clear and concise analogies.


emerge addict since Gentoo version 1.2, 2002.
compiler error: value of "_Trust_Microsoft" always fails.

[ Reply to This | # ]

Well Said!
Authored by: stingbot on Tuesday, October 25 2005 @ 05:52 PM EDT

We need more well thought out, but easy to understand articles like this that
can help us better articulate to our leaders why the current patent systemis
hurting our software tech industry. Not that I am fully against software
patents, I just believe, there must be much in the way of reform.

If you do not believe in software patents, think about something like RSA's
public private keys. Many many man hours were invested researching the
feasiblility of this technology. As a result, when it was released, it worked
relatively well enough that it could be adopted as as standard. I think a
company has the right to have that work protected when it is so obviously ground
breaking, never used before, and the company is actively implementing the

[ Reply to This | # ]

Software Patents are Like Smoking ~ by Marten Mickos, CEO MySQL AB
Authored by: Anonymous on Tuesday, October 25 2005 @ 05:55 PM EDT
I am sorry, but this is an arbitrary and almost totally
cripple analogy.

I consider the software patents under discussion here
BAD in and of themselves -- they don't need any analogy.

[ Reply to This | # ]

Fairness is an issue
Authored by: Anonymous on Tuesday, October 25 2005 @ 06:28 PM EDT
You can protect yourself against infringing a copyright. In fact, you can
produce something the same as what someone else produced. You just have to
prove that there is no way you had the opportunity to copy it. (I refer to the
George Harrison "My Sweet Lord/He's So Fine' case" where the judge
referred to subconscious copying) This isn't the case with patents. You can
come up with something independently and still violate a patent. The average
person or small company has no practical means of protection against this.

A non-software example of this is Monsanto's ability to patent plant genes. If
pollen from a neighbor's field contaminates your field, Monsanto gets to rip up
your crops. It isn't fair or just. A system that was designed in part to
protect the little guy now works only for those who can afford lots of lawyers.

The damages to the economy seem obvious (but I'm not an economist either).
Software patents and patents on living things hurt us all.

[ Reply to This | # ]

Smoking Analogy
Authored by: Anonymous on Tuesday, October 25 2005 @ 06:35 PM EDT
I like your analogy. However, I think that others have dealt with the topic as successfully.

Intel has honed a `platform leadership' strategy, in which they lead industry efforts to develop technologies that will make the PC more useful, such as the PCI bus and USB. Their modus operandi is described in a book by Gawer and Cusumano. Intel sets up a consortium to share the development of the technology, has the founder members put some patents into the pot, publishes a standard, gets some momentum behind it, then licenses it to the industry on the condition that licensees in turn cross-license any interfering patents of their own, at zero cost, to all consortium members.

The issue of unbridled cross-licensing of patents engaged in by consortia, with the tacit approval of government regulators, must be tackled *first* in my opinion. If this extremely monetarily rewarding corporate behaviour is allowed to continue unfettered then the continued existance of software patents will prevail.


[ Reply to This | # ]

Software Patents are Like Smoking ~ by Marten Mickos, CEO MySQL AB
Authored by: Anonymous on Tuesday, October 25 2005 @ 06:44 PM EDT
"The rights of an inventor or author need to be properly protected.
Otherwise we will soon have no inventions or new creations."

This is absurd.

The whole article, although nicely written, seems more like part of a
(righteous) campaign against software patents than a serious argument against
software patents. Is this a criticism? Hard reality is that in politics it's
hardly ever about content.

All patents are evil. It's just that software patents even lack the facade of
being useful.

[ Reply to This | # ]

Amazon Profits Sink 44 Pct. on Settlement
Authored by: lsmft on Tuesday, October 25 2005 @ 06:49 PM EDT
AP-"SEATTLE Oct 25, 2005 — Internet retailer Inc. said Tuesday
that third-quarter profit fell 44 percent, in large part because of the
settlement of a patent-infringement lawsuit.

...In August, Amazon announced it would pay $40 million to Soverain Software LLC
to settle a patent-infringement lawsuit. Chicago-based Soverain had alleged that
Amazon's Web site infringed several Soverain patents on network sales systems
and Internet server access control and monitoring systems."

Given that Amazon is the home of the "innane" One-Click purchasing
patent, I am pleased as punch to hear this.

[ Reply to This | # ]

Patent Nonsense
Authored by: Anonymous on Tuesday, October 25 2005 @ 07:14 PM EDT
Dr. Mickos claims,
"The rights of an inventor or author need to be properly protected.
Otherwise we will soon have no inventions or new creations."
I am aware of no data that support this superstition. I would greatly
appreciate pointers to studies that validate this cliam.

I personally believe that it belongs in the same category as claims like
"good software can only be developed if there is a profit motive",
and/or "good software can only be developed when the development team is a
small, no more than four or five, cohesive unit." These similar claims
were once thought to be unquestionably true. I submit that FOSS is unequivocal
proof of the speciousness of those claims.
It is just not the case that people, e.g. inventors, only engage in inventive
behavior when they think they can monitize it.

The current patent system does not work. It should be dismantled and some
appropriate alternate form of awarding innovation legislated. Surely, with all
the creative folk who are interested, something better than a 200 year old
anacronism can be devised.

[ Reply to This | # ]

Software Patents are Like Smoking ~ by Marten Mickos, CEO MySQL AB
Authored by: Anonymous on Tuesday, October 25 2005 @ 07:57 PM EDT
I am a hobby programmer, and an advid user of open source, and am headed to
college for my programming degree. I see software patents as equivalent to
recipe or 'how-to' patents. All three are written instructions to be followed
step by step. All three should be, and are copyrightable, and neither should be
patentable as they are instructions, not invention. The only difference between
software and recipes or how-to docs is a machine follows the software
instructions, and people generally follow the others.

[ Reply to This | # ]

Intellectual Liberty (Or: I Couldn't Disagree More!)
Authored by: Simon G Best on Tuesday, October 25 2005 @ 08:25 PM EDT

(I'll mention up-front that there was, in recent years, a game-panel-quiz-show-type-thing in the UK (the name of which I cannot remember, but Dr Graeme Garden was on it), in which there was a round called, "I couldn't disagree more!" (I think). The idea was that someone on one team would put forward a proposition that someone on the other team would have to disagree with, giving convincing (vote-winning) reasons why. Usually, the proposition would be something hard to disagree with without gaining tremendous unpopularity (such as, 'We should not take the view that a woman's place is in the home'). (The game show was based on politics, you see.))

The rights of an inventor or author need to be properly protected. Otherwise we will soon have no inventions or new creations. But when it comes to software, copyright is quite sufficient protection. ...

I couldn't disagree more!

Copyright is not sufficient protection for the rights of authors. Far more essential than copyright is the right to Freedom of Expression, which includes the freedom to receive and impart information and ideas. (This is also a vital freedom - a vital right - for innovators generally, not just in software.)

What's more, the idea that copyright protects the rights of authors is itself questionably founded. It depends on the idea that authors somehow have - or ought to have - certain rights, and that copyright exists to protect those rights (like the 'natural rights' argument in defence of patents, for example). But that's as fallacious as the idea that patents are there to protect intellectual property. Patents are not there to protect intellectual property; patents themselves are the intellectual property. Similarly, when it comes to copyright, the right (or collection of rights) in question is copyright itself.

But of course authors (and everyone else (and everyone's a potential author, anyway,)) have rights that need to be protected. The right to Freedom of Expression is one such right, and is one of the most important of those rights. I would argue that the right to choose whether or not to disclose something is also a vital, essential right (and one from which the concept of intellectual property may follow, and upon which intellectual property should be founded).

We should hold, as being fundamental to intellectual property, the right to Intellectual Liberty. Intellectual Liberty is the proper foundation for intellectual property, and is intellectual property's proper justification. Intellectual Liberty is itself part of Freedom of Expression, held to be a Universal Human Right and Fundamental Freedom. Intellectual Liberty is the freedom to receive and impart information and ideas, without interference by public authority and regardless of frontiers.

Proper, sound intellectual property rights may follow from, and should be founded upon, the right to Intellectual Liberty. As such, intellectual property rights must be held as secondary to the fundamental right to Intellectual Liberty. If there is a conflict between some form of intellectual property and Intellectual Liberty, then it is that infringing form of intellectual property which must be done away with.

With Intellectual Liberty being the freedom to receive and impart information and ideas, it must also be the freedom to remain ignorant of, or to hold secret, information and ideas. Otherwise, it is not freedom. This is the true and proper basis for intellectual property.

Copyright, properly founded and defined, is consistent with this freedom. Authors and potential authors have the right to choose whether or not to make their works of expression available to others. Therefore, they have the right to decide under what terms and conditions to do so. Readers and potential readers of such works of expression have the corresponding right to choose whether or not to read such works, and under what terms and conditions. Copyright, when properly defined in law, is consistent with these freedoms.

Patents, however, are not compatible with the right to Intellectual Liberty, and therefore must not be permitted to cover works of expression of any form. In particular, direct software patents (rejected by the European Parliament) are totally unacceptable, and will not be tolerated.

Let us no longer debate and discuss these matters in terms prescribed by those who would take our freedoms for their profit. Let us expose and debunk the propaganda that says that patents are there to protect intellectual property (when it's the patents themselves that are the intellectual property). Let us demand the protection of our freedoms for which (we are told) the Cold War was fought and won (and they call us 'Communists'?!?).

Yes, we may - and will, and do - disagree on many matters (BSD vs GPL?). But let us agree on Liberty, on Freedom! Let us insist upon, and demand the protection of, everyone's Intellectual Liberty.


FOSS IS political. It's just that the political establishment is out of touch and hasn't caught up.

[ Reply to This | # ]

Protections for Inventing vs. Bringing Inventions to Market...
Authored by: Anonymous on Tuesday, October 25 2005 @ 08:41 PM EDT
Several times here already I've seen people taking issue with the "accepted
fact" that protecting inventors' rights fosters invention. To my ears they
are quibbling with the letter of the stated "fact" and not thinking
the short distance to it's intent. The overarching goal of such protections is
to benefit society not individual inventors.

I think the spirit (not the letter) of this "fact" really means that
inventions will not be disseminated (brought to market, etc.) if there don't
exist adequate protections. Under anarchy, of course people will continue to
twiddle away their spare time with crazy inventions. Wallace will be Wallace
under any regime that doesn't lock him up -- and probably even then. But no one
beyond family and close friends will ever benefit from the truely great
inventions unless there are social protections and / or incentives for the
inventor and / or the disseminators (= companies). The goal is to benefit

I'm sure there are more formal / accepted / historied ways of stating this.
Could someone in the know please flesh this out so people here stop stumbling
over the "letter" of this "assumed fact"?


[ Reply to This | # ]

I am suspicious
Authored by: Anonymous on Tuesday, October 25 2005 @ 08:45 PM EDT
Something is not quite right.
I am not a fan of software patents, but article has an off taste to it. The
article seems a peace offering to offset the negative PR re SCO. It could be
coincidence ...

[ Reply to This | # ]

Yet another opinion
Authored by: jseigh on Tuesday, October 25 2005 @ 09:22 PM EDT
We have no shortage of opinions about software patents, mostly against. What we do have a shortage of is practical advice on what to do about patent issues. The prevailing "wisdom" of what to do about patents for FOSS authors is pretend they don't exist. That works until you get a letter from a lawyer.

Anyway, that's what I'm doing for my FOSS project which is on the bleeding edge in one area of technology so it's in a veritable patent mine field.

[ Reply to This | # ]

Maybe one defense against patent trolls?
Authored by: Anonymous on Tuesday, October 25 2005 @ 09:22 PM EDT
Aside from either destroying or fixing the patent system, it seems to me that
there is one way to bring patent trolls in line...

IIRC, with patents there is no reason you cant:
* deploy them arbitarily
* go after end users

So a suitably annoyed coallition of actual producers could in theory basically
hit patent trolls with something like
"Anyone who works at, for or with Litigious Trolls Inc. is hereby
prohibited from using any modern conveniences, products, or medicines"

Of course, even if there isnt some gaping hole in my grasp of patent issues
(IANAL, etc etc), this is probably less practical than just scrapping patents

But the mere thought gives me a warm fuzzy feeling...

[ Reply to This | # ]

A Suggested way out of the Software Patent Mess
Authored by: Hygrocybe on Tuesday, October 25 2005 @ 11:04 PM EDT
I have been considering this problem for a while and there is no doubt in my
mind that software patents are intensely destructive and repressive to software
innovation. In addition, software patents are now being used by monopolies to
protect their interests and prevent any future competition, a move that I find
ethically repugnant.

Software is virtually identical to the alphabet and the written word; both use
symbols in various combinations to produce new concepts. Patents on software
are now reaching the ridiculous situation where if they were applied to the
alphabet and written English, we almost certainly would not be able to use the
phrase "Once upon a time"....unless it could be proved to be prior

I'm not out for flames, so don't bother, however serious suggestions on
improvement would be great. This is more or less what I think should happen:

1. All issuing of software patents should cease immediately.
2. A cut-off date of say 5 years from now should be nominated at which point all
software patents become invalid.
3. Software may only be subject to copyright laws.

I expect the vested interest people (and lawyers - they make their living from
this awful mess) to scream like blazes, but this is now too appalling a
situation to leave in its current form. While the above is a serious suggestion,
it may have defects. However I like to think it might be a starting point for an
earnest attempt to solve the present mess.

Keep up the pressure Groklaw...something has to be done.


Blackbutt, Australia

[ Reply to This | # ]

"Patent trolls"
Authored by: Anonymous on Tuesday, October 25 2005 @ 11:33 PM EDT
What about the term "IP vultures" for companies that do nothing but
buy up patents and sue other companies?

I prefer to use the phrase "patent trolls" to refer to internet
posters who troll on behalf of the pro-software-patents position.

[ Reply to This | # ]

Yes, and...distinctions and root cause...
Authored by: tce on Wednesday, October 26 2005 @ 12:03 AM EDT

Yes to the authors notions, and...

My focus is on the distinction between patents of Machines Of Physics (MOP), i.e. something that changes or can be used to change the physical world, and, patents of Machines of Ideas (MOI), including business process patents and software, where the “machines” can include electronic data processors and people, but no physical laws were exercised as a result of the outcome. 

I see two distinctions between MOPs and MOIs.
First, I suspect, MOIs simply did not exist in sufficient tangible form when early patent concepts were being expressed to have had them EXPLICTLY barred.  The founding fathers were thinking clearly on this issue and provide copyrights.  Here they were not confused with greed based issues (e.g. slavery) to have muddied the waters. 

Second, for an MOP to be come valuable to society, a small team usually had to bare the cost and risk of reduction to  practice (cost), engineering for manufacture-ability (more design and prototype costs), tooling and factory development (cost), raw material acquisition (cost), production, packaging, and distribution (cost x3).  All of that time and cost creates risk.  To have your prototype taken or first month production run purchased, reverse engineered, and cloned by a competitor that did not incur the cost of the reduction to practice, I suspect, was a significant deterrence to development of MOPs (e.g. electric motors).  Thus patents provided a TEMPORARY monopoly and incentive to invent AND reduce to practice, manufacture, and ship.

So, as others have pointed out, MOIs, such as music, and, for example, all of the work of the previous generations of software engineers that Amazon and MS depend on, have created EXPLOSIVE growth in invention and real wealth, all without patent protection.

As MOI's are not in themselves physical things, the path from Human Idea to utility for society is now about as short as the distance to the nearest internet/blog/keyboard hotspot.

This distinction is an easy test, and the Humans among us get it.

Then, why do we have an issue?

Greed based, Corporate powered decisions, overpowering our civic institutions.
Humans are mortal, can possess morality and ethics, and often see themselves as stewards of the Commons (Thanks PJ!).

Corporations, now potentially a bit larger then 200 years ago, are by definition not mortal, cannot as a legal "fiction" be moral or ethical, and are REQUIRED to be manically self interested - that old shareholder value thingy.

Corporations have become mixed up in the civic stewardship role that Humans have on behalf of themselves and fellow Humans. 
Corporations can lobby for their interests (?!) to our civic bodies. 
Corporations can give real property, that is campaign contributions, to the decision making members of our human society, under the guise of the (Human) right of Free Speech.

Cash is not Speech.
Once more with feeling:
Cash   Is   Not   Speech.
Cash is used to buy things.
Things like laws.
(That would be a good OT thread:  Cash for Laws.  Quality subject lines please!)

So, my assessment of the root cause of our problem with software patents is the self interested, amoral, non-ethical, (they literally can't help themselves) corporations which, for the benefit of the few, have  been using their power to bend the law to their favor. 

This is not new. 
Corporate Person hood is the migration of Human (person) status and rights to corporations.

Corporate Person hood is described by the folks here: nhood/  as
Introduction to Corporate Personhood
Our Bill of Rights was the result of tremendous efforts to institutionalize and protect the rights of human beings. It strengthened the premise of our Constitution: that the people are the root of all power and authority for government. This vision has made our Constitution and government a model emulated in many nations.
But corporate lawyers (acting as both attorneys and judges) subverted our Bill of Rights in the late 1800's by establishing the doctrine of "corporate personhood" -- the claim that corporations were intended to fully enjoy the legal status and protections created for human beings.
We believe that corporations are not persons and possess only the privileges we willfully grant them. Granting corporations the status of legal "persons" effectively rewrites the Constitution to serve corporate interests as though they were human interests. Ultimately, the doctrine of granting constitutional rights to corporations gives a thing illegitimate privilege and power that undermines our freedom and authority as citizens. While corporations are setting the agenda on issues in our Congress and courts, We the People are not; for we can never speak as loudly with our own voices as corporations can with the unlimited amplification of money.

For additional references, see the wikiepedia, and of course you can always tell The Google what your looking for.  Hay, its only about a 10-15 year effort to pass a constitutional amendment – join the fun!

--Tom / tce


[ Reply to This | # ]

MySQL AB's immense support in the fight against software patents
Authored by: Florian Mueller on Wednesday, October 26 2005 @ 01:07 AM EDT
As the founder of the campaign, I'd like to point out on this occasion that relative to its size, I don't know of any company that has provided a similar level of resources to our reistance movement as MySQL AB has. There may be some very small companies that spent even more time and money, relative to their size, but that's why I said that I don't know of any.

MySQL AB was instrumental in putting together the alliance of three companies that funded the creation of the campaign last year. 1&1 (a large German web hosting company) and Red Hat also made major contributions for which I was very grateful, but they are considerably larger than MySQL. I don't want to mention company names in a negative context here, but there were some companies in Europe with revenues in the range of two to five times MySQL's size, and those companies publicly complained over the implications of software patents but made monetary contributions of absolutely zero (!) in some cases, and amounts like $5K in a few others (from a $100 million company that claimed it could in the worst case go out of business due to software patents).

We nearly lost the fight against the EU software patent due to the unwillingness of most medium-sized companies that philosophically oppose software patents, but which generally don't put their money where their mouth is. The 648-32 vote in the European Parliament looks like a cakewalk in retrospect, but the fact of the matter is that we only had a narrow majority, and then even the pro-patent forces decided they couldn't get their way and joined our allies in dumping the bill. Only a week before the parliamentary vote, we felt that there was enough support in the parliament to at least steer the legislative process into a conciliation proceeding.

For some time, especially after the vote in the Legal Affairs Committee, it actually looked like we were only months away from getting a really bad directive that would have given software patents a far stronger legal basis in Europe. If that had happened, the primary reason would have been a lack of funding for the anti-software patent movement. The FFII did a wonderful job, but their annual budget is not even enough to pay for a single (!) full-time lobbyist (and his expenses) by Brussels standards, if you have to hire someone with major credentials who isn't willing to work for a smaller amount out of idealism.

We're presently running a campaign for the "EV50 Europeans of the Year" award in order to make another strong statement against software patents. Richard Stallman, Tim O'Reilly, Alan Cox (Linux kernel maintainer), Rasmus Lerdorf (PHP) and Monty Widenius (MySQL) have officially endorsed our set of voting recommendations for that worldwide Internet poll in a press release. Once again, MySQL AB was very helpful as we formed that group of endorsers, and the PHP scripting that we needed for our electoral campaign was also performed by MySQL.

I'd also like to point out that MySQL's founders, Monty Widenius and David Axmark, have a long-standing history as opponents of software patents, which goes back to the 1980's. They were among the early members of the League for Programming Freedom.

[ Reply to This | # ]

So what's the plan?
Authored by: Anonymous on Wednesday, October 26 2005 @ 03:46 AM EDT

Yet another article saying software patents are bad. The choir duly applauds the preacher. Everybody gets the nice warm feeling that comes from agreement, and moves on.

Meanwhile, our opponents, who want to use software patents to cripple free software, aren't just talking to each other. They're lobbying politicians. They have an advantage because the status quo favors them already. All they have to do is preserve that advantage. That's much easier than changing the law.

In my opinion the bad guys are set to win this one. They are already well placed, and they are taking effective action. Meanwhile, most free-software advocates are doing nothing. They will post feel-good messages on Groklaw but they won't do anything real - like calling their representative, and joining the EFF.

[ Reply to This | # ]

Software/Hardware distinction becomes blurred at the edges
Authored by: Anonymous on Wednesday, October 26 2005 @ 04:19 AM EDT
3 Points (IANAL):

1. What is software?
Much electronic development is done these days using hardware description
languages, e.g. VHDL. Software tools synthesise the code into a suitable form
depending on the target device; either the metallisation layer for a custom gate
array (physical, so patentable) or the programming memory of an FPGA (software-
not patentable).

Electronic engineers will say they are simply describing hardware, and that an
invention is patentable when expressed in VHDL just as much as if expressed in a
circuit diagram.

All I am saying is that at the margin the distinction between hardware and
software is becoming increasingly blurred.

Software engineers moving to VHDL usually (please do not flame if you are an
exception) have a hard time because they are thinking of code, not hardware.

2. Patent Disclosure
My understanding is that part of the point of patents is that the inventive step
is disclosed to the world at large in return for a limited time monopoly on the
invention. The alternative is secrecy, and a return to the days when a person
(or corporation) took their useful invention to the grave with them.

3. We've been here before
I see the damage being done by the present patent system, but I think it needs
reform, not abolition. Let us not forget that James Watt was an early patent

"It was his practice, (from around the 1780's) to file either vague patents
or to pre-empt others ideas which were known to him by filing patents with the
intention of securing credit for the invention for himself, and ensuring that no
one else was able to carry out work in a particular field." (wikipedia)

I have no ready solution to the problem. However I see no reason why the author
of a book should be given protection for their output, but the researcher who
painstakingly develops new encryption or compression algorithms should not.
Copyright just protects the single expression of an idea, it is usually possible
to express an identical algorithm in a different way.

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A sea change in R&D
Authored by: Anonymous on Wednesday, October 26 2005 @ 05:36 AM EDT
The patent system was developed upon the assumption that the individual
inventor, laboring evenings and weekends in his/her garage, needed protection
from those with greater production resources who would profit from his/her
ideas. Perhaps the most well-known recent case is that of the late Robert Kearns
who obtained financial settlements from the big carmakers after many years of
struggle. The system was also meant to encourage companies - in particular
smaller ones - to invest in research & development, costly since research
doesn't involve making or selling something or middleman trading. The basic idea
was: come up with a unique idea, obtain patent protection, hit it big in the
market either through production or licensing, laugh all the way to the bank.

This system was founded in the context of a 19th-century reality: the difficulty
of collaborating with others over great distances. Today, the Internet has
fundamentally changed the way modern R&D is done. In the case of software,
it has only recently become clear that 200 developers working together on a Free
Libre Open Source project are far more efficient than 12 developers working
together on a proprietary, closed project at, say, Microsoft.

IBM, Apple, Sun, CA, Novell, HP, have understood this and are struggling with
the transition away from software patents. Many smaller software companies are
experiencing difficulty in doing so; their R&D sacrifices are real and some
indeed have exclusive superior cutting-edge technology - my company (not in
software) is the only client of a small firm specialized in realtime image
manipulation which to our knowledge is available nowhere else, at any price.

I believe that the patent system applied to software can only survive if there
is intense lobbying in its favor. I think that there is growing recognition of
the inappropriateness of software patents by governments and standards bodies.
Ultimately, patent grantors must learn that the old model just doesn't serve
anyone's interest anymore (patent trolls excepted) and indeed hinders rather
than encourages innovation. In this context, I think it is instrumental to bring
to light patents that have been granted yet which are demonstrably restrictive
or ridiculous.


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An Unintended Consequence of this article
Authored by: Prototrm on Wednesday, October 26 2005 @ 08:31 AM EDT
We run the risk of convincing all the smokers out there to support software
patents. Of course, you might also end up with new laws that allow the
enforcement of software patents, as long as it's done outdoors.

The next step would be to apply The Patch to remove patent problems in software.

Sorry, I'm just not in a serious mood this morning.

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Missing Model Issue
Authored by: lightsail on Wednesday, October 26 2005 @ 09:30 AM EDT
I feel that the significance of the dropping the model requirement in the patent
process is the major flaw.

Since inventors do not need an actual working model, the evaluation of function
has moved from being a physically demonstrable fact to the realm of imagination,
and the scope or definition from actual working item to legalistically ambiguous
to the point that the invention morphs as needed to pursue intellectual property

A requirement of a working model to be maintained for the duration of the patent
(required for any patent litigation) would stop patent trolls in their tracks.

Open source is in the public interest!

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Opportunity Cost
Authored by: Benanov on Wednesday, October 26 2005 @ 09:54 AM EDT
The second gazillion is an opportunity cost (It's been a while since collegiate
economics) because it was something you had to bear in order to avoid being sued
by non-troll patent owners.

You've spent 1 gazillion on patents. Your shareholders or owners see this 1
gazillion worth of patents and see it as value, expecting you to be able to get
1 gazillion (or more) out of licensing so that the patents pay for themselves.

You would recoup your costs, but in order to not infringe on anyone else's
patents, you have to sacrifice this value in cross-licensing deals.

So here's the total:

You have a sunk cost of 1 gazillion (that's #1).

However, any value you had now in the patents is lost. So you now have lost
another 1 gazillion in revenue, unrelated to you getting the patents
defensively, that you now cannot claim. That's #2.

(Your net loss is still 1 gazillion--however you got the patents for two
reasons--defend yourself and make money. Both cost you 1 gazillion each,
although your bank account only sees the one from the initial purchase; the
other is opportunity.)

I'm no economist, but I think I might get a 'B' for this explanation.

That popping sound you hear is just a paradigm shifting without a clutch.

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Software Patents are Like Smoking - more like guns...
Authored by: Anonymous on Wednesday, October 26 2005 @ 10:07 AM EDT
Some people want guns 'cos they feel it is their constitutional right

Most because it is just a way of life - cant imagine life without a macho thing
like gaming

For people who can afford the pleasures that a gun supposedly provides them, the
other problematic offshoots of (like crime) this does not really bother them.

If you say to yourself a hundred times that it isnt "guns that kill people,
only people kill people" you'll probably believe it. After all we believe
whatever we want to believe. Any argument against just falls on dead ears.

The point is that it does not matter what people believe or what people want -
even though that is what is supposed to matter in a democracy. In reality it is
what the "influential people want". Most influential people want guns.
So there ends the discussion.

Its the same case with Patents.

Big companies want it because they have already poured a lot of money on it.

Most smaller companies, that arent doing that well want it 'cos their
"dream" is to collect tolls from a big company.

Patent trolls oviously want it.

And lawyers want it.

Most people who dont care or dont know still believe that "intellectual
property" is very "American." Or atleast thats the propaganda -
the catch phrase (just like guns dont kill people).

I liked an earlier post here which talked about patents infringing
"Intellectual Freedom". Perhaps this message has a better chance of
being appreciated by the masses.

But we are still a long long way off, and I frankly dont see the light at the
end of the tunnel :(

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Right vs. privilige.
Authored by: Anonymous on Wednesday, October 26 2005 @ 11:20 AM EDT
It is not a "right" but a privilage to get a patent. The constitution
directs the government (congress) to provide a patent off ice for the
development of arts and sciences.

It is a privialge to aquire a patent. Once awarded you do have a
"right" to it for a limited time."Intelectal property"
doesn't exist. It is more like an "intelectual lease".

However the oft-not talked about right is the right of the common man to
duplicate, with his own labor and for his on purpose, those inventions. The
problem comes in if one begins selling, which violates the grant of patent. You
have a right to your own labor. It is involuble and not subject to negotiation.

So we have a collision of two rights - the right to your own labor and a granted
"right" of limited term? Which one wins out? The right to your own
labor is far more important and fundamental. While the patent owner has a right
to his labor as well, he gets to enjoy a limited monopoly. The idea is that he
can sell it and profit from it, in the end he contributes to the arts and

It would be a paramount flaw to put the contibutions of the arts and sciences
before the rights of the people. The first patent (#1) was a plow. Could he stop
people from duplicating it? No. Could he stop people from selling it? Yes. See,
there in lies the great thing about patents. You have to document what you did.

I think open source software, unless it is being sold, is no violation of
patent. Why? Since OSS is freely availible, and it is the support that costs, no
actual selling (commerce) of the patented idea is taking place. Particularly
when it is distributed as source code, what you have is a copy of the design in
which you can set about the compilers to assemble into a usable form. Much the
same way you could copy that plow and have the blacksmith make it. He does not
sell you the plow, but you pay for his labor. The labor agreement is protected
by contract law. And that is another right too - you have plenary rights to
contract, even in an illegal manner (just the government won't provide
protection (enforcement) if the contact is of illegal manner - you are on your
own or have to find a 3rd party.) By you requesting the blacksmith make the
plow, you pay hor his labor no matter if it is a patented plow or an unpatented

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from small "patent troll"
Authored by: Anonymous on Wednesday, October 26 2005 @ 11:35 AM EDT
You appear to be ignorant about software in general and software patents in
particular, Mr. Marten Mickos, CEO of software company MySQL AB.

Let me fill some gaps in your education.
First, there is no exact boundary between hardware and software
implementation and trying to establish a firm criterion for
distinguishing software from hardware for the purpose of prohibiting
software (or hardware) patents will only open a "can of worms" in
legal sense.
From computer science perspective this is called Turing equivalence,
or “The First Law of Computing”, if you will...
This debate is actually quite old and still some people like you do not
understand the issues involved.
(See, for example, )
ANY computational algorithm can be implemented entirely in hardware, as part of
chip design, or it can be implemented as an executable code for
programmable DSP, or it can be written in any general-purpose
programming language, e.g. Java, to be run on any general-purpose
The decision to implement certain computation in hardware or in
software is influenced by a number of practical considerations, such as
intended use, speed of execution, size, power consumption, cost to
manufacture, future upgrade plans etc.
In practice, of course, there are many differences affecting the
decision on how to implement some particular type of computation.
Nobody is suggesting a hardware implementation of, e.g. e-mail client,
or, at the opposite end, a software implementation of a core speech
compression algorithm as an add-on Java program for cell phone, but it
is possible to do, right?
Note also that semiconductor manufacturers need software
patents as much as Microsoft or Adobe needs them. A large percentage of patents

issued to chip manufacturers are really software, or algorithm, patents
on some binary logic operations etc. They are just framed
differently, so people might not immediately recognize them as software
By Linus Torvalds' own account, Transmeta’s chips are 1/3
hardware and 2/3 software (Code Morphing software).
So all chip manufacturers do like software patents very much and need
them badly to protect their designs.
What they don't like is when those patents, especially fundamental
ones, are issued to independent inventors or small R&D companies
without products to sell.
When this starts to happen often, they start running in circles
around Washington D.C. screaming "Patent Reform!".
At the same time some idiots, sorry… brainwashed young people, dressed in
"No software patents" T-shirts run in circles around the Parliament
and shout "Freedom!" believing they actually benefit innovation in
In reality, their actions hurt small innovative start-ups and independent
inventors much more than they hurt Microsoft.
I hope this will help you understand some real issues better.

Small independent inventor in DSP field (a.k.a “patent troll”)

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Software Patents are Like Smoking ~ by Marten Mickos, CEO MySQL AB
Authored by: Anonymous on Wednesday, October 26 2005 @ 12:26 PM EDT
As a smoker, I'm appalled that someone would compare said habit to such a
disgusting and vile thing as software patents. ;)

On a more serious note, I stronly disagree with software patents, but, on top of
that, I think the entire patent process (software and otherwise) needs to be

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Software Patents are Like Recipe Patents
Authored by: Anonymous on Wednesday, October 26 2005 @ 02:30 PM EDT
IMO, patenting software is akin to patenting food recipes. A computer program
is basically a combination of various parts of a software language to produce an
end product that can be used by someone. A recipe is a combination of various
ingredients to produce an meal that can be consumed by someone. Imagine if
someone filed a patent for the combination of 2 eggs, 1 cup of milk, and 1/2 cup
of flour. Then any restaurant who serves a meal involving this combination of
ingredients would have to pay the patent holder a royalty.

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Software Patents are Like Smoking ~ by Marten Mickos, CEO MySQL AB
Authored by: tgape on Wednesday, October 26 2005 @ 09:24 PM EDT
This is a distraction.

Patents were created for the specific purpose of fostering innovation.

To consider whether software patents should continue to be allowed, one needs to
look at how much software is produced because it is protected by patents, and
how much software is produced in spite of the patent risk.

Given the large number of users in the producers arena - even beyond the
Coca-Colas and the Autozones making software, we have the Richards, the Linuses,
the Erics. Most of the top tools I know about in the software industry were
made via Open Source, without patents. For every proprietary software package
I've seen, I've seen *at least* five shareware packages and ten free software
packages, all of these without patent protection.

Beyond this, most of the commercial software I've seen did not list patents that
its manufacturer owned; I believe I've seen more of them that licensed someone
else's patent, but only because the someone else sued them. (Admittedly, IP law
is something I've followed, being that it's antithetical to my job, so I've seen
a disproportionate number of these.)

I believe I've seen more companies that sell patents or patent licenses than
I've seen companies that really innovate. Note that, I'm not counting in either
bucket companies who have applied for (and frequently gotten) patents on
software concepts I know I've encountered more than a year before they filed for
their patent.

All this tells me that we are progressing in the software arena in spite of
patents, rather than because of patents. If one wishes to give software
development a boost, one should do away with software patents.

In my reasoned opinion, patents should never be introduced to a new arena (such
as business methods) unless it is clear that the new arena needs an innovantion
boost. If it has sufficient innovation (for a field that has no need of
innovation, if such a thing could exist, no innovation could be considered
sufficient), it should be left alone.

I believe it is very important that people remember, patents were created to get
people to give up their trade secrets. If people are giving up their trade
secrets at an adequate rate, there is no need to give them further incentive to
do so.

As far as how to draw the line, I have a simple suggestion: if it involves a
computer, and a general purpose computer could work, it's software. If only a
dedicated-purpose computer can do the job, it's hardware.

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Software Patents are Like Smoking ~ by Marten Mickos, CEO MySQL AB
Authored by: Anonymous on Thursday, October 27 2005 @ 01:00 AM EDT
The rights of an inventor or author need to be properly protected.

Precisely, and software patents infringe on the inventors' and authors' right to invent and to author.

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Software Patents are Like Smoking ~ by Marten Mickos, CEO MySQL AB
Authored by: Anonymous on Thursday, October 27 2005 @ 01:03 PM EDT
"The third argument has to do with the parameters of the software industry.
A patent can take long to get approved, and it may be in force for 20 years. But
technology cycles in the software industry are much much shorter."

Further to this point, patent cycles are long because new inventions take a long
time to bring to market.

In the mechanical world, if you are an individual inventor first you (secretly)
come up with an idea, work out the finer details and then file for a patent.
While the patent is going through the system you are still years away from
bringing a patent to market.

0) secretly come up with an idea
1) refine it
2) patent it
3) Form a company
4) Raise funds and find investors
5) setup operations
6) build prof of concept prototypes
7) raise more capital
8) build manufacturing prototypes
9) Develop manufacturing facilities
10) Start production....

And on and on.. I'm skipping many steps but it gives you an idea of whats

So not only is it time consuming to take an idea from drawing board to
production, but its very expensive. If you risked having someone steal your idea
part way through this process you probably wouldn't be able to attract any
investors in phase 2 and so patent protection is really needed to spur

On the other hand patents on software alogrytims skips all most all of those

1) secretly come up with an idea
2) patent it
3) In the 7-10 years it takes to get the patent, pray some unsuspecting company
writes something similar into one of their products and then sue them.

This process is almost free and takes only as long as the time required to think
up the idea and fill out the patent applicatoin.

Remember patents don't apply to finished software products, but instead to vague
concepts. Any given bit of software likely has thousands of potentially
patentable (and therefore potential infringing) concepts.

If software patents are allowed at all (which they shouldn't be) then the entire
cycle should be maximum 3 years with an option to renew for additional 2

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