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How You Can Help Patent Attorneys Help Free Software - Updated
Thursday, August 26 2010 @ 12:46 PM EDT

I would like everyone to watch tridge's talk [.ogv] [mp3] on patents and how engineers can interact efficiently with patent lawyers, to get your knowledge across to them. More formats are linked from End Software Patents, if you prefer audio only.

Focus, please, also on what he's learned about patents, how to invalidate them in various ways, especially the part about proving non-infringement and why that is easier than proving prior art, and then the part about finding a workaround and then publicizing it. He shows how to read a patent filing document. You guys have been effective already in the past in finding prior art, but he is raising the bar with more techniques.

I see some of you are already posting what you believe to be prior art on the Oracle America patents being used against Google, and we might as well do it as well as we can once we are sure Oracle is going to go forward full steam ahead, but there are other arrows to add to our quiver. I'm waiting to see if there is a settlement of some kind, but when I am sure it's going forward, I'll tell you. Patent infringement cases go on for years, usually, so there's time to hope for progress. Larry Ellison is giving a talk at JavaOne September 20 in San Francisco on "Oracle's vision and strategy" for Java. As James Gosling points out, there is still a way to fulfill the 2007 Java pledge by setting up an independent Java foundation, and there are other steps Oracle can still take. In spite of all that is happening, one thing I am clear on. Oracle is not SCO. Oracle is Oracle. Sui generis.

Update: Google announced it will not be attending JavaOne.

But as Eben Moglen pointed out recently at LinuxCon, the patent crisis in general isn't going away. So it's best that we figure out the very best ways to deal with it. I'm told his talk will be available as video soon, and when it's up, it will be here on the Linux Foundation website.

Linux and FOSS compete on who has the best code, not patent infringement lawsuits, speaking of vision. It's a superior development model. Nobody competes with courtrooms. I'm not saying no one sues. The GPL lawsuits are about copyright infringement, but they are what they say they are, not wolves in granny's cap to fool Red Riding Hood. It's why the code keeps getting better and better.

I've been thinking a lot about that whole issue of using courtrooms instead of competing in the marketplace. I've had occasion to do so, because of reporting on the SCO Group on a daily basis, pretty much, since 2003, among a number of other cases. And what I have come to believe is this: proprietary software companies in the US, anyway, seem to have been contaminated by Microsoft's behavior and by the general culture these days into acting very much like Microsoft was infamous for doing. That's my analysis. They don't even know how to compete any other way any more, maybe, other than to be as mean as they know how to be. No wonder the economy is struggling. The idea of using, or misusing as I see it, the courts to harm competitors is now not just SCO, and it's a corruption of the system. Patents are a way to make money and worse, they think money is the most important thing, and that destroying the competition is the only way to compete effectively. So they sue even if the patents are simply ridiculous, because it harms a competitor win or lose, just having to deal with the litigation.

It think it's unethical. That's surely not what courts are for. But if money is all you care about, when they start to slip in a market, they often think about "monetizing" the patents.

Have you ever noticed that in any large group of software folks, a mixed group of proprietary and FOSS, the faces of the older guys tell you quite easily who is who? I can usually tell just by their faces whether they are proprietary or FOSS. Older faces tell the tale of who has been naughty or nice.

My mom taught me that when I was a young girl, and I've found it's true. Who you really are eventually shows on your face as you age. When I see the heads of some of the proprietary software companies smile, it looks unnatural, like someone taught them how to look like a nice guy smiling and they do their best imitation, but look at the eyes. Look at the wrinkles. You are what you eat, they say. But really, it's more like you are what you *do*. And it really does show over time what you are inside. When you are twenty, you don't care or you don't think. But as you get older, you find out it really matters, and not just because of how your face looks. Money can't fix you then, not all the money in the world.

All right. Two very different cultures. That's exactly why we here don't like to use their proprietary products and don't recommend them to those we care about -- because if they treat each other the way they do, what will they be willing to do to you and me, mere customers? We can't retaliate or pay them back. We can avoid their products, of course.

As best as I can tell so far, Oracle America is using patents to force Google to use code that isn't as good as the code for such functionality could be, in Google's opinion. And if that's it, and you force people to use inferior code, what really have you accomplished?

But patents will be used by some old-fashioned companies, particularly those that can't compete on merit, just because they can make money that way currently, and while they have been enabled by Bilski to go forward, they also got scared by it into thinking they'd best hurry up and sue, just in case the US Supreme Court decides to toss software patents overboard altogether someday.

And I hope they will. Meanwhile, tridge expects that patents will be *more* of a problem going forward, and I agree, sadly, that is likely the case, so we need to get more and more effective. How?

The very best is to code a workaround to any patents, if you can find a way. Remember what the Samba guys did with Microsoft? The EU Commission forced Microsoft to provide a bounded list of patents to the Samba team, which right there is better than trying to avoid patents you don't even know about, and they looked at the list and said, no thanks. They didn't need them. What they achieved in that case is a lot more than that, and I encourage you to reread his description of the process, and if you are rushed, read the part under the heading 'Patents'. Not long after that historic agreement, Microsoft opened up and let the world interact with their protocols more readily. I don't know if they refunded the money the Protocol Freedom Information Foundation paid them for Samba's and all of our benefit for access to the protocols, but they should have. The point is that you don't want to make a private solution just for yourself. Protect the community at large. It can be done.

The very best technique, if it's possible in a fact pattern you are dealing with, is not only to code a workaround but to publicize it widely, tridge points out. Then the whole world knows there is a workaround, and the patent owner loses the ability to sue anybody with it and get license fees, because all the proprietary victims who otherwise would pay license fees per copy can just use your workaround for free.

That provides a full disincentive to suing FOSS. They'll prefer to sue another proprietary company instead, because they'll just pay up or even if they can code a workaround, they won't share it with the world. Because they are too stupid to share.

That is the perfect counterpunch, tridge says. And as you know, he's put his money where his mouth is, if one thinks a bit about VFAT, as well as the Samba saga.

The community surely has the skills to make this workaround technique a very effective defense, and where that is impossible to try to prove non-infringement or find prior art. But patents are a minefield, so lawyers are necessary to be effective, as he explains, but while the community lawyers and protective entities figure out a methodology overall, we can right now take step one, and that is to learn how best to communicate with lawyers and to learn as much as we can about the patent system, nauseating as it is.

I respectfully disagree with tridge on one point he made in the Samba article in the following way. I would very much like everyone in the community to get as many patents as you can. If you have a riveting idea, patent it so no one else can do so. Or think about defensive publication. I don't want to just *find* prior art. I'd like to create it. The Software Freedom Law Center and Open Invention Network are there to help the community get it right. OIN would like to hear from you if you get threatened with a patent, by the way. Knocking a patent infringement case out depends on having the precise weapons to do so. You can't fight something with nothing. If they are going to aim patents at you, you can't just stand there and hope for the best. For one thing, patent pledges and promises only cover precisely what they cover, and if they don't cover what you are being sued over, there you are.

The more patents you have, the more likely it will be that you will have just the one you want. But even better is to make it so that they can't patent some functionality because you have it sewn up, even if you never sue anyone. So we can be like epiphytes in the rain forest, growing where we find ourselves, but without depending on the system for nutrients. Avoiding litigation in the first place is always the best solution. And if you have the right patents, the sharks are less likely to choose you to sue. That's talking about companies. What about trolls? If you have the patent already, no patent troll can get it. Trolls don't care about counterclaims, after all, because they have no products. So keeping patents out of their hands is the best mechanism there.

Here's the talk OIN's Keith Bergelt gave at LinuxCon last year on what his organization does and how it works, and at the end he talks about the role you can play.

Update: Here's a TED talk by Peter Donnelly, a statistician at Oxford, an expert in probability theory who applies statistical methods to genetic data, who talks about how some criminal trials have gone the wrong way because none of the lawyers involved nor the experts testifying nor the judge understood statistics well enough to identify serious mistakes that led to wrong verdicts. It's the same principle with tech. If lawyers don't get the tech, and they often don't, how will a judge or a jury get anything related to technology right?


  


How You Can Help Patent Attorneys Help Free Software - Updated | 251 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections if any here please
Authored by: nsomos on Thursday, August 26 2010 @ 01:01 PM EDT
This would be a fine place to put any corrections.
It would be helpful if the title were to summarize ...
e.g. misteak -> mistake

[ Reply to This | # ]

COMES posts here please
Authored by: nsomos on Thursday, August 26 2010 @ 01:04 PM EDT
Please place any COMES related transcriptions or summaries
here. It is helpful if they are HTML formatted but posted
in plain text mode to make it easy for PJ.

[ Reply to This | # ]

At fifty everyone has the face he deserves.
Authored by: betajet on Thursday, August 26 2010 @ 01:08 PM EDT
-- George Orwell, who died at age 46.

[ Reply to This | # ]

How You Can Help Patent Attorneys Help Free Software
Authored by: Anonymous on Thursday, August 26 2010 @ 01:34 PM EDT
You should pick a company, find all their patents, invalidate as many as you can
and move on to another company.

Depending on who you pick, by the time you are on to the 3rd company, there
would be no more software patents. The thought of being next on that list would
force companies to pay our politicians/judges to change the laws or
interpretations so that everyone is in the same boat.

[ Reply to This | # ]

Off Topic posts here
Authored by: nsomos on Thursday, August 26 2010 @ 01:46 PM EDT
Please place here your posts that are off-topic for
this story while being generally on-topic for Groklaw.

[ Reply to This | # ]

But IBM told me ...
Authored by: Anonymous on Thursday, August 26 2010 @ 01:50 PM EDT
But IBM recently said that patents make the Open Source world go 'round
("Patent protection has promoted the free sharing of source code on a
patentee’s terms—which has fueled the explosive growth of open source software
development." http://www.patentlyo.com/08-964-ibm.pdf , footnote 22, pages
37 and 38).

[ Reply to This | # ]

News Picks posts here please
Authored by: nsomos on Thursday, August 26 2010 @ 01:51 PM EDT
Since News Picks can scroll out of sight, it is helpful
if links are given. Please don't make us guess which
News Pick you are writing about. At least give the
title of the News Pick in the first post upon it.

Follow HTML instructions for how to post links, and
remember to post in HTML mode and Preview is your friend.

Thanks

[ Reply to This | # ]

Corporations behaving like Microsoft
Authored by: kawabago on Thursday, August 26 2010 @ 02:10 PM EDT
Microsoft showed how to run a monopoly and make more money doing it than courts
will fine you for anti-trust violations. As long as your profits are higher,
the fines are just a cost of doing business. That is where America is today.
Monopolies are legal as long as they keep paying their fines, nothing else will
happen to them.

My personal reaction is to stop applying my creativity to technological centric
activities that would benefit everyone and instead focus on art. It turns out
I'm also a really good cook when I put my mind to it and it can be a very
challenging activity. These endeavors only benefit me and my family. That is the
effect Microsoft has had, the world has become more selfish.

[ Reply to This | # ]

Says it All: Oracle America is using patents to force Google to use code that isn't as good
Authored by: SilverWave on Thursday, August 26 2010 @ 02:11 PM EDT
Eloquent and insightful.



---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

Help free software by ignoring patent attorneys
Authored by: Anonymous on Thursday, August 26 2010 @ 02:32 PM EDT
Seriously. You don't end a racket by getting better protection.

Don't respond to "intellectual property" demands, except with "No
contract - return to sender". Don't pay money to lawyers. Don't waste
your time showing up to court. Don't pay any attention to default judgements.
When it gets passed to a debt collection agency, respond with "Under
dispute with creditor - cease pursuit".

Ignore everything until Sheriff's Deputies and a repo outfit turn up with a
warrant, then be sure you've signed ownership over everything within a half mile
radius over to your brother-in-law.

Absolute worst case, you cannot have more value of assets seized than you would
have had to pay to a lawyer to "win" a case for you.

Don't. Feed. The lawyers.

[ Reply to This | # ]

I have horns on my head, and my breath smells of sulphur...
Authored by: Gringo on Thursday, August 26 2010 @ 02:54 PM EDT

...because I develop proprietary software!

Have you ever noticed that in any large group of software folks, a mixed group of proprietary and FOSS, the faces of the older guys tell you quite easily who is who? I can usually tell just by their faces whether they are proprietary or FOSS. Older faces tell the tale of who has been naughty or nice.

I am over fifty. I am sure you could see the evil on my face too then. Gimme a break! What a bunch of drivel! I don't have any software patents, and never will. I am just a loan software developer trying to make a living with my skills.

You begin by addressing the evils of software patents, and I'm all for you because I hate software patents too. Then you end up insulting millions of software developers like me all over the world. I don't think that helps your thesis in any way.

You could just as well jump on architects or chemists or pharmacists or any number of professions because they don't give their work away for free either. How about lawyers? They could build a body of templates for every legal occasion and give those away too! You are taring all software developers everywhere with the same brush we use to tar SCO and Microsoft, and I just don't think that is appropriate at all.

[ Reply to This | # ]

Please, no more software patents
Authored by: betajet on Thursday, August 26 2010 @ 03:04 PM EDT
I disagree that a solution to the danger of software patents is to write more
software patents. Even if they are created for defensive purposes, that can
change very quickly as Oracle has just shown. Each company with software
patents is one management change, acquistion, or bankrupcy away from those
patents becoming weapons for a patent bully.

I would also worry that having patents makes a small entity a target. Say you
have a patent that a bully finds attractive, so he sues you using other patents
he controls. Not having enough resources to fight back, you go bankrupt and the
bully (or some other bully) acquires your patents. If you never had the patent
in the first place, you might have escaped notice all together if your company
or organization had little enough income. I have no idea if this is a realistic
scenario in practice.

I like the idea of defensive disclosure in the form of publications. I remember
IBM doing this back in the 80's -- I assume they still do. If an idea seemed
worth patenting they would, but otherwise would publish the idea in their
disclosure bulletin so that others wouldn't be able to patent it. It would be
great for FLOSS to have a common and free place to do this, provided that the
USPTO would actually consult it. Along with protection, it might help improve
the quality of documentation.

[ Reply to This | # ]

What do you call a dozen patent lawyers at the bottom of a well?
Authored by: Anonymous on Thursday, August 26 2010 @ 03:13 PM EDT
... a good start.

You put out a fire by cutting off the oxygen supply. I refuse
to have anything to do with the lawyers when they start to talk
about 'IP'. None of the companies I've ever worked for have
gained a single patent from my work, I suggest you do the same.

[ Reply to This | # ]

the cheapest way to "file" a patent
Authored by: Anonymous on Thursday, August 26 2010 @ 04:51 PM EDT
filing a provisional patent in the US only costs some $100. Then just let the
thing expire (after 1 year) and publish it somewhere so everyone knows. The
stamps and communication of the USPTO will be proof and there's a filing date on
it.

>kjs

[ Reply to This | # ]

"proprietary software companies in the US..."
Authored by: Anonymous on Thursday, August 26 2010 @ 08:23 PM EDT
proprietary software companies in the US, anyway, seem to have been contaminated by Microsoft's behavior...
That's a pretty broad brush you're tarring us with there. I work for a small US software outfit that I know wins contracts because of superior products and service (and we've lost some because of deceptions by the competition's sales people). I write a lot of the code myself. I wouldn't necessarily put it past our management to use monopolist's tricks, but we're just way too small for them to work. (You're welcome to deduce which company I'm talking about from the IP address of this post.)
I'm sure you'll want to qualify your statement with something about how you've selected the sample of US software companies on which you've based your conclusion.

[ Reply to This | # ]

" ... they think money is the most important thing ... "
Authored by: Maple Syrup on Thursday, August 26 2010 @ 10:50 PM EDT

Quoth PJ:

... they think money is the most important thing ...

That's the thing about business and corporations. Not only is money the most important thing, it is the ONLY thing.

Many years ago, when I used to work for a large multinational corporation whose primary business was software development, I used to say, and only slightly in jest:

    "If it was legal, and the profit margins were good, $OUR_COMPANY would run drugs and sell underage prostitutes"

Sadly, I think that there's more truth than jest in that comment ...

    - Maple Syrup

[ Reply to This | # ]

That's not quite it, PJ
Authored by: Anonymous on Friday, August 27 2010 @ 05:13 AM EDT

As best as I can tell so far, Oracle America is using patents to force Google to use code that isn't as good as the code for such functionality could be, in Google's opinion. And if that's it, ... what really have you accomplished?

What do you mean by "isn't as good as"?. After all, we use Free software even when its functionality isn't always as good as proprietary software.

In this case, the value that Google is attacking, and Oracle is protecting, is standardization and portability. Sun took great care that the Java world would not be fragmented into dialects. Microsoft tried its usual trick of trying to establish a "Microsoft Java" that would only run on Windows, and that might extinguish "write once, run anywhere" Java. Sun stopped them. Now Google is attempting the same thing: create a "Google Java" that will only run on Google's platform.

The method is different, so the defense has to be different. But make no mistake: Google's goal is the same as Microsoft's goal was, and it's just as evil.

[ Reply to This | # ]

Tridge says PJ is wrong!
Authored by: Ian Al on Friday, August 27 2010 @ 05:25 AM EDT
OK, it is both true and a way of getting your attention. It is a top issue if we
are going to do what PJ is promoting.

First of all, Tridge narrowed (it's a legal term I got from Tridge) his claim to
small FOSS projects. He points out that if you read patents related to a small
project you will be subject to triple damages. He says that, either way, if the
project gets sued for patent violation the project dies and so it makes more
sense to read the patent and code around it.

PJ recommends a blanket avoidance by practising programmers of reading patents
unless a law firm raises its old, ugly head.

The people who are best able to review and define software patent claims are
those who write software. We need to set some guidelines so that those skilled
and knowledgeable programmers who get the tech can point those of us who can get
the language and semantics and work on the arguments, in the right direction.

That is the intellectual safety equipment. We also need a machine hall in which
to run the software patent shredders (and we should not limit ourselves strictly
to that. We have open hardware projects we need to protect).

The news article format has two issues for this purpose; it is freeform (other
than for the OT, Corrections and Newspicks areas), key articles disappear as new
news gets reported.

We must leave it open to all the vital contributions made by anon. A GrokWiki
would be wonderful as would a huge management team and troll scouts. That is not
going to happen because we must not let PJ attempt to spread herself so thin as
to moderate and structure this part of the site.

It is appropriate for PJ to line up the targets. She knows, or can know, more
than she can tell us and it is her site, anyway!

Is there a half-way house solution that has a permanent presence? Perhaps we
could have real estate for each patent covered, with demarcated areas to deal
with each claim and the other issues. It would work similarly to, and require no
more extensive management than, the news section, but eventually the thoughts,
ideas and comments would need assembly into a more ordered and durable form
rather like the Comes exhibits.

The way ahead is not clear to me. The objective is clear: we must make sure PJ's
article does not remain rhetoric, but is taken forward into an action plan.

---
Regards
Ian Al
SCOG, what ever happened to them? Whatever, it was less than they deserve.

[ Reply to This | # ]

"... they think money is the most important thing ..."
Authored by: Anonymous on Friday, August 27 2010 @ 07:23 AM EDT
<sardonic-rant>

But capitalism won!

We are all consumers not individuals living as part of a community.

We embrace the accumulation of wealth as the sole purpose in life.

We care not if that requires stamping on our fellow individuals.

Our ethics only go so far as not conflicting with our capitalist assumptions.
Leave any competing morality at the door.

</sardonic-rant>

[ Reply to This | # ]

No wonder the economy is struggling.
Authored by: luvr on Friday, August 27 2010 @ 07:23 AM EDT
“No wonder the economy is struggling.”

Incidentally, I read an article in the neswpaper earlier this week, about the economic troubles in the US, and in my mind, I summarised the article as saying that “pure, simple, unadulterated greed is the fundamental cause of the problems.”

Everything goes to the rich, with, e.g., tax cuts benefiting primarily them; the rest of the population hardly gets a pay rise while prices do keep rising, government has to save money because of the tax cuts, and apparently there's less and less investment in innovation.

According to the article, there are even local governments that have given up on road maintenance, and that accept that their roads will degrade over time; after all, even such degraded roads can, and will, still be used, won't they?

The author of the article even goes so far as to state that he fears the US may be on its way to becoming a Third-World state...

Pretty grim picture, in my opinion...

[ Reply to This | # ]

Statistics Win Court Cases .. huH !? ?
Authored by: Anonymous on Friday, August 27 2010 @ 11:53 AM EDT
criminal trials have gone the wrong way because none of the lawyers involved nor the experts testifying nor the judge understood statistics well enough to identify serious mistakes

The above issue is simple to deal with; a top mathematician (proven expert witness in mathematics) should be able to easily prove to a judge that statistics simply doesn't exist - has zero validity in the world of mathematics.

[ Reply to This | # ]

"The more patents you have, the more likely it will be that you will have just the one you want"
Authored by: Anonymous on Friday, August 27 2010 @ 12:11 PM EDT

@ PJ

I just looked in the mirror and my 72 year old face - just looks like 52 (okay then 62!)

If it's true, that if "we" patent a zillion ideas - that we will be safer from the "GaZillionaire Robber Barons"; then we need to use methods to make it easy (easier) to accumulate these zillions of patents.

I am suggesting "we" do a series of on-line "Brain Storming" sessions - using the "Bill Harris En Charrette" methodology which works a 100 % of the time. And that these sessions involve folks beyond the Groklaw borders.

I am sure there must be an excellent (fully functional) open source "White Board" software to use in facilitating these online "Brain Storming"/"Bill Harris En Charrette" sessions. I'll volunteer to be one of the organizers.

[ Reply to This | # ]

How You Can Help Patent Attorneys Help Free Software - Updated
Authored by: Anonymous on Friday, August 27 2010 @ 06:39 PM EDT
I liked Andrew Tridgell's talk. Just one question: what if there are multiple
independent clauses? In order to show non-infringement, do you need to knock out
all independent clauses, or just one?

[ Reply to This | # ]

Trolls, counterclaims, and disclosure of deals
Authored by: Anonymous on Saturday, August 28 2010 @ 04:51 AM EDT
Trolls don't care about counterclaims, after all, because
they have no products. So keeping patents out of their hands
is the best mechanism there.

Counterclaims can help if they are applied to companies that
sign deals with trolls to "license" open source software
without the agreement of the open source copyright holders
of EFF acting on their behalf.

OK this isn't a counterclaim, but a separate lawsuit, but
can an interest be claimed by EFF or GPL licensors if the
troll and the troll's licensee strike a deal that make their
product subject to unspecified risk, and therefore interfere
with their business. I am talking about Microsoft style
racketeering based on secret agreements here.

[ Reply to This | # ]

Paul Allen lawsuit
Authored by: paivakil on Saturday, August 28 2010 @ 07:54 AM EDT
I guess most of us here would like to discuss the Paul Allen law suit - it is
there in the news picks section.

[ Reply to This | # ]

Mixed feelings
Authored by: Marc Mengel on Monday, August 30 2010 @ 05:06 PM EDT
So I have mixed feelings about this. While we could, in theory, provide a
recipe for how to avoid each and every patent out there individually, there is
such a massive quantity of them that it may not be possible to avoid all of
them, or even half of them, simultaneously.

So the goal of wanting to invalidate them altogether, rather than list how they
can be avoided, seems like the Better Goal to me. Of course, I realize that if
I am the target of a patent lawsuit, my personal interest is doing whichever of
those things is most expedient; but as a Service to the Community, killing the
patent dead, once and for all, is the Higher Goal; and getting them all thrown
out in one fell swoop would be the Highest Goal.

[ Reply to This | # ]

The LinuxCon keynotes are up online
Authored by: qubit on Friday, September 03 2010 @ 06:07 AM EDT
Head over to this Linux Foundation page and register to gain access.

There are several videos up online, including all of the keynotes. Moglen's "Doing What it Takes: Current Legal Issues in Defending FOSS" is arguably the most captivating, but several of the other talks are very good as well.

(Yes, it's annoying that you have to register again even if you already have linux.com or linuxfoundation.org accounts, but that's just how they set it up)

[ Reply to This | # ]

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