Weekly Edition
Return to the Front pageSponsored link
Vyatta –
Linux & Open Source
Alternative to Cisco –
Advanced Routing,
Firewall, VPN, QoS..
Free Download ->
| |||||||||||
A visit from the trolls
We have been hearing the warnings for years: sooner or later, software
patents were destined to be used against free software. When dire warnings
are repeated over a long period of time, it can become easy to shrug them
off and assume that nothing will ever really come of them. But complacency
does not make the problem go away. And now we have, in the form of a
lawsuit filed against Red Hat and Novell by IP Innovation LLC, a reminder
that the software patent threat is real.
Three patents are named in the brief complaint [PDF]:
As might be imagined, the three patents all read about the same. Those who are not afraid of patentese can get a feel for what has been patented by reading the first claim of #5,072,412 - one of the claims alleged to be violated by the defendants:
A system comprising:
This claim seems like a fairly straightforward description of a window manager which provides multiple virtual desktops. It does not take a whole lot of imagination to extend this reading to describe the behavior of two windows on the same desktop. Finding software within a Linux system which can be said to infringe upon these patents is probably not all that hard to do. Eliminating all code which could be said to infringe, instead, could be difficult indeed. (Bear in mind, though, that your editor is fortunate enough not to be a patent attorney; anybody needing a definitive interpretation of this patent should consult people who know what they are talking about). The defense against this attack will require either (1) the location of sufficient prior art to invalidate the patents, or (2) an argument that, by the allegedly tightened definition of "obviousness" in the U.S., the technology patented is not sufficiently innovative. Red Hat and Novell have not shared their defensive strategy with the world, and they are unlikely to do so in the near future. We will almost certainly have to wait and see how they answer the charges in court. As an alternative, the two companies could pay the troll in exchange for an agreement allowing the patented technology to be used in GPL-licensed software. Assuming an agreement could be reached, this approach would solve the immediate problem. But it would also encourage every other patent troll out there to head to court in search of a turn at the trough. It would be far better to defeat this attack if at all possible. Regardless of how this case plays out, though, we can be sure that it will not be the last. There is no shortage of software patents in the U.S. and no shortage of lawyers willing to turn them into lawsuits. The system encourages this sort of litigation. For this reason, your editor feels that the current focus on finding links between this suit and Microsoft is misplaced. It may well be that Microsoft is lurking in the shadows somewhere, directing the entire operation. Your editor has no way of knowing. But there's a couple of things which should be kept in mind when trying to make that connection. The first is that Microsoft's presence is in no way necessary to explain this series of events. Patent trolls are not in short supply, and neither are patent infringement lawsuits. It was a certainty that one of these trolls was going to turn its attention to free software companies sooner or later. IP Innovations, owned by well-known patent troll Acacia, is no stranger to this sort of litigation; it could have easily decided on this course of action on its own. Second, it's not clear that this attack, at this time, is in Microsoft's interest. For all the talk of the safety provided by Novell's purchase of a patent non-license from Microsoft, Novell, too, has been sued. No users have been sued, but, should the plaintiffs decide to target Linux users, Novell's customers will be just as exposed as Red Hat's customers. Any other company which might be considering the purchase of a "covenant not to sue" from Microsoft need only look at this case to see that the covenant has not solved the problem: the company which bought the covenant is in the same position as the company which refused to do so. This attack can also only serve to clarify the problems with software patents in parts of the world which do not currently allow software to be patented. In other words, this lawsuit has driven home the fact that, with regard to software patents in the U.S., Microsoft is not the problem. Microsoft's own experience on the receiving end of patent infringement lawsuits should also make that clear. Whether or not Microsoft is behind this suit, the real problem is the current software patent regime in the U.S. and the litigation-friendly environment which supports it. If Microsoft were to vanish tomorrow, the threat would not be reduced in any appreciable way. So putting the focus on Microsoft is a mistake; we have a much bigger problem than that. (Log in to post comments)
A visit from the trolls Posted Oct 15, 2007 17:05 UTC (Mon) by withaar (guest, #4201) [Link] I wonder how the old mainframe terminal systems fit in this description. At least half seems to fit the description.
The first patent is over 20 years old, so it should has expired. Unless there are substantive innovations (that therefore are outside of the original patent which has become prior art) the other patents will be much weakened.
A visit from the trolls Posted Oct 15, 2007 17:28 UTC (Mon) by JoeBuck (subscriber, #2330) [Link] According to freepatentsonline.com, US patents filed before June 1995 expire either 20 years from date of filing, or 17 years from date of issue, whichever is later. So the 5,072,412 expires in December 2008.After June 1995, US patents expire 20 years from date of filing, period.
Patent expiry Posted Oct 15, 2007 18:14 UTC (Mon) by AJWM (subscriber, #15888) [Link] Note that the other two patents are extensions (or whatever the appropriate legal term is) of the '412 patent, and as such expire at the same time the '412 patent expires (Dec. '08). (This is noted on the patents themselves.)
A visit from the trolls Posted Oct 15, 2007 19:48 UTC (Mon) by lutchann (subscriber, #8872) [Link] Well, patent holders can seek damages for past infringement on expired or nearly-expired patents. SuSE and RedHat have likely been infringing these patents from day one.
A visit from the trolls Posted Oct 15, 2007 21:22 UTC (Mon) by AJWM (subscriber, #15888) [Link] As yet there's no evidence that Novell and RedHat have been infringing these patents at all, let alone "from day one".
Just because the patent abstract makes it sound like something a product does, the actual fact of infringement or not is in the details of the claims. (And whether the patent is even valid.)
A visit from the trolls Posted Oct 15, 2007 22:01 UTC (Mon) by lutchann (subscriber, #8872) [Link] Sorry, what I meant to say is that if the validity of these patents is upheld, and Novell (and SuSE before them) and RedHat are found to be infringing them, they would likely have been infringing them for well over a decade making the potential damages much larger than if the infringement was only a recent occurrence. Therefore, the fact that one or all of these patents expire soon is a fairly minor consolation for the defendants, or anybody else who has been using or selling Linux for a while.
ten years' infringement with no suit? Posted Oct 17, 2007 1:00 UTC (Wed) by xoddam (subscriber, #2322) [Link] I think it should make pursuit of the suit at this late stage rather difficult if the alleged infringement has been going on in full public view for ten years without so much as a cease-and-desist letter to the supposedly infringing parties. An undefended trademark is no trademark at all -- does a similar obligation exist to actively defend a patent? Or does the system actually encourage trolls to file suits for long-term infringement just before the patent expires? Any armcahir lawyers care to comment?
ten years' infringement with no suit? Posted Oct 17, 2007 11:35 UTC (Wed) by rahulsundaram (subscriber, #21946) [Link] Unlike copyrights and trademarks, you have no obligation to defend your patents. So the system does indeed appear to encourage such trolls unfortunately. IANAL but just what I heard and speaking for myself here.
ten years' infringement with no suit? Posted Oct 17, 2007 14:06 UTC (Wed) by sepreece (subscriber, #19270) [Link] Another way to look at this is, it allows patent holders to not worry about suing everybody who infringes, but only those who succeed sufficiently to be worth suing. That's no advantage to those who get sued, but a big advantage to those who don't (as compared to trademark, where thousands of cease-and-desist letters every year go out to mom-and-pop sotes and websites that choose their names poorly).
ten years' infringement with no suit? Posted Oct 18, 2007 10:48 UTC (Thu) by lysse (subscriber, #3190) [Link] However, if you knew someone was infringing your patent for ten years, but only told them about it six months ago, you can only recover damages for the past six months, according to the article referred to below. Damages can only be recovered after proper notification of a patent, and then only for the larger of reasonable royalties and lost profits. Since IP Innovations had no products to write patent numbers on, and consequently no profits to lose, it appears they'll only be able to claim royalties since the date they first notified the companies they're suing of infringement. That explains why the date of first notification is a subject of some dispute in these cases... Rather nastier is the injunctive relief - they can force Red Hat and Novell to stop distributing their products until the infringement goes away. They won't want to do that, of course - but their bet is that their victims won't voluntarily withdraw products to sort out the infringement, and will settle for rather less reasonable future royalties (ideally a patent license would cost a dollar less than the total cost of withdrawing, redeveloping, and rereleasing). http://www.tms.org/pubs/journals/JOM/matters/matters-9201... (I wonder whether patents would be any more palatable if intellectual property were personal and non-transferable? That is, if the only people who could ever sue for patent violation were the individual inventors named on the patent, and corporations could only ever obtain licences for them...?)
Race to the bottom Posted Oct 15, 2007 17:26 UTC (Mon) by leoc (subscriber, #39773) [Link] One step everyone concerned about this can take is to write a letter (not an email) to their applicable government representative to encourage them to support patent reform. If this situation continues, I think we will find that the majority of truly innovative "a couple of guys in a garage" style software development will migrate overseas to jurisdictions with saner patent laws.
Troll-bane? Posted Oct 15, 2007 17:45 UTC (Mon) by Max.Hyre (subscriber, #1054) [Link] Does the patent-related legal system have a mechanism for punitive damages, and can it be made to work on trolls?That is, if the defendants prove the suit is groundless, and they can demonstrate that the defendant knew, or should have known that it was groundless, could the damages be increased? Increased sufficiently to a) really hurt plaintiff, and b) show other patent trolls that if they lose they're gonna be 0wned? I mean that last literally. A troll could easily be a couple of lawyers in a rented back room. A sufficient-large judgment could be impossible for them to pay in cash, and therefore defendants get all plaintiff's assets, including any other patents they hold. Comments from those who know what they're talking about, as I certainly don't?
Troll-bane? Posted Oct 19, 2007 8:23 UTC (Fri) by ekj (subscriber, #1524) [Link] Wouldn't help. You'd just get a single-patent-single-company constellations. So, if a company bows to the threats, or they actually win in court, it's a win. If they lose, and are forced to pay damages, they just close that particular shop. No damages are paid; because the company doesn't own ANYTHING other than the single patent. And that single patent is now worthless, so who cares.
Move to Europe Posted Oct 15, 2007 17:47 UTC (Mon) by simlo (subscriber, #10866) [Link] If the Linux companies moved to Europe we would gain two things:1) Patents wouldn't hurt Linux at much directly. 2) European politicians would have a harder job introducing software patents here since it would hurt European companies over American companies. 3) The software patents in the US could be seen as trade barriers preventing those European companies entering the US market. There would thus be a pressure on the US to abolish the system rather than a pressure on Europe to copy it.
Esben
Move to Europe Posted Oct 15, 2007 18:16 UTC (Mon) by Max.Hyre (subscriber, #1054) [Link] 1) Patents wouldn't hurt Linux at much directly.Depends on what counts as ``directly''. Developers, and thus development would be freed by such a move. Unfortunately, unlike copyright, patent applies to anyone using the patented material as well. Thus, the trolls could sue GNU/Linux users. Our distros would have to go offshore, too, and we'd be downloading them clandestinely, not letting anyone know what OS we're running. Bittorrent use would go 'way up. Picture a dark alley, complete with shady character displaying the contents of his coat: ``Psst, buddy. Want some hot Linux?'' :-/
Are you serious?? Posted Oct 16, 2007 13:19 UTC (Tue) by hummassa (subscriber, #307) [Link] <font class="QuotedText">> patent applies to anyone using the patented material as well. </font> Can anyone tell me if this is for real under USofAn patent law? Because under Brasilian patent law, you can use whatever patented invention in a personal, non-profit-generating way. But we also _explicitly_ forbid software, business methods, and game rules patents.
Are you serious?? Posted Oct 16, 2007 19:25 UTC (Tue) by sepreece (subscriber, #19270) [Link] This is basically true in the US, though in practical terms, nobody is likely to sue over a patent being used non-commercially by an individual.
Move to Europe Posted Oct 15, 2007 20:05 UTC (Mon) by and (guest, #2883) [Link] > 1) Patents wouldn't hurt Linux at much directly.
I don't agree. Nowadays there is a notion in the US justice system to
> 3) The software patents in the US could be seen as trade barriers
I guess it will stay as it is: US companies and officials trying to push
Move to Europe Posted Oct 16, 2007 2:46 UTC (Tue) by dvdeug (subscriber, #10998) [Link] Every country cares about what products get imported. If you import a game based on a work that's in the public domain in the US but under copyright in the EU into the EU, you will get sued, even if you're based in the US. (No video game based on Secret Adversary, for example.) You will be safe from American patents as long as you don't ship to the US, but the instant you start selling on a country's soil, those products have to conform to that country's laws.
Move to Europe Posted Oct 16, 2007 6:31 UTC (Tue) by simlo (subscriber, #10866) [Link] I remeber recently reading Microsoft won a case where they don't have to pay patent royalties for products sold outside USA where the patent didn't apply. Thus USA recognices that the patents in USA only applies there. Sorry no link. Esben
Move to Europe Posted Oct 19, 2007 0:54 UTC (Fri) by giraffedata (subscriber, #1954) [Link] The basic law has always been clear that a US patent covers making, selling, or using the invention in the US only. But there is a special statute (a relatively recent one) that covers a loophole wherein someone might make 99% of a product in the US and ship a kit to another company for final assembly and thus avoid patent liability. It says if you do that, you're liable just as if you had built it 100% in the US. But what you're liable for is what you did in the US: shipping the parts. Nobody applies US patent law to stuff that happens in other countries.Microsoft was accused of exploiting that loophole and therefore being covered by this special statute, because Microsoft ships master CDs to be copied and sold by people in other countries. The court found that shipping a master CD does not fall under the final assembly law.
A visit from the trolls Posted Oct 15, 2007 17:47 UTC (Mon) by salvarsan (subscriber, #18257) [Link] Prior art: MIT's Athena/X-windows project, 1984.~1000 DEC CRT's displaying the Athena/X logo may be sufficient prior art.
Surely, Microsoft does _not_ want these patents pursued unless they have prior 'consideration' with IP Innovation.
A visit from the trolls Posted Oct 15, 2007 19:54 UTC (Mon) by ghayes78 (subscriber, #4454) [Link] What about the Xerox PARC (Palo Alto Research Center) work on the Alto in 1973 and the Star in 1981, the first mouse wheeling windowing GUI minicomputers. Apple then "borrowed" that work and used it for the macintosh in 1984 ... and the law suite that was filed by Xerox in the 1980s against apple ... and apple sued microsoft and HP ... etc
http://query.nytimes.com/gst/fullpage.html?res=9C0CE3D91E...
I think this has been hashed out before ... clear as mud ... prior art and prior battles.
A visit from the trolls Posted Oct 15, 2007 22:16 UTC (Mon) by sepreece (subscriber, #19270) [Link] "What about the Xerox PARC (Palo Alto Research Center) work on the Alto in 1973 and the Star in 1981"
This is work done in that same group at PARC. I would expect the patent to be written to avoid stuff that wasn't within the one-year window.
A visit from the trolls Posted Oct 15, 2007 20:22 UTC (Mon) by and (guest, #2883) [Link] the 'screen' utility also has the concept of "virtual workspaces", but intextmode. the man page of gnu screen says it's copyrighted 1987, but maybe there's an earlier version.
Probably emacs also qualifies when it comes to having multiple buffers
A visit from the trolls Posted Oct 15, 2007 20:41 UTC (Mon) by im14u2c (subscriber, #5246) [Link] Or even Douglas Engelbart's stuff... (Go do a search on YouTube for some neat demos from the late 1960s.)
Waaay OT: sponsored link Posted Oct 15, 2007 17:58 UTC (Mon) by Max.Hyre (subscriber, #1054) [Link] At the bottom of, at least, my page, I see a link to Afvallen. I guessed its language to be Dutch, and asked Babelfish for its opinion:Very interesting targetting for a Linux-specialty site. Great job, Jon. :-)
Waaay OT: sponsored link Posted Oct 15, 2007 20:54 UTC (Mon) by proski (subscriber, #104) [Link] They think they are hacker safe. So does IP Innovations.
respectful naming of your opponent Posted Oct 15, 2007 18:00 UTC (Mon) by zooko (subscriber, #2589) [Link] I know this is going to sound weird to some folks, but I would appreciate it if we didn't use disrespectful terms like "troll" to denote people whose actions or roles we dislike.
We can argue that they are doing wrong while still referring to them with a word which indicates a normal human being just like the rest of us.
I know that using the word "troll" as a noun like that is funny (at least the first few times), but doesn't mean that we shouldn't switch to something more respectful.
Regards,
Zooko
respectful naming of your opponent Posted Oct 15, 2007 18:17 UTC (Mon) by johnkarp (subscriber, #39285) [Link] When I first saw the headline, I assumed it was an interview withTrolltech developers. In which case, 'troll' is the proper term... they use it themselves in their own publications.
"Patent troll" is a term of art. Posted Oct 15, 2007 18:25 UTC (Mon) by AJWM (subscriber, #15888) [Link] "Troll" in this context is a term of art. The phrase "patent troll" has been around for nearly 15 years -- possibly coined by Intel -- and is well understood to describe a company with this sort of business plan.
respectful naming of your opponent Posted Oct 15, 2007 18:32 UTC (Mon) by ncm (subscriber, #165) [Link] "Troll" is a technical term unrelated to its use to disparage saboteurs of online discussions. It comes from the mythological creature hinding under bridges and demanding a toll to cross. Trolls don't build bridges, they just colonize bridges that are poorly defended. Of course they are symbolic of real bandits who behave the same way.
As such, "patent troll" is not meant to be funny or (particularly) disrespectful. It's simply a very accurately analogical description. These people never create anything, but they make their living by demanding money from others to whom they have never rendered any service and on whose largesse they have no claim; and they enforce their demands by threatening the harm of expensive litigation. The victims know that even winning such litigation might be more expensive than paying the demands. Furthermore, the alice-in-wonderland atmosphere in courtrooms means winning is far from certain, and losing could be disastrous.
"Patent trolls" is, if anything, too favorable a term. "Patent extortionists", "Protection racketeers", or "disgusting slime" would be more appropriate, but we restrain ourselves and say "patent trolls".
respectful naming of your opponent Posted Oct 15, 2007 18:45 UTC (Mon) by zooko (subscriber, #2589) [Link] Personally, I would be okay with "racketeers" or "extortionists". This focusses the issue on their actual (non-metaphorical) alleged actions and raises the explicit question of whether those actions are defensible, legal, ethical, etc.. (I might not agree with your answers to those questions, but I would understand your meaning as being respectful of the humanity of your targets, if not respectful of their actions.)
I personally try not to use nouns that denote non-human entities, like "trolls" or "slime" (or "rats" or "animals" or "beasts" or any such) to refer to people.
Of course, I suppose I might do it if I really thought that someone was undeserving of being respected as human, but I wouldn't do it in this case.
Regards,
Zooko
respectful naming of your opponent Posted Oct 16, 2007 10:46 UTC (Tue) by gouyou (subscriber, #30290) [Link] But using "racketeers" or "extortionists" would mean that you should be able to prove that they are doing racket or extortion not simply that their business practice are like racket or extortion. If you cannot prove it, it is defamation; using the metaphor is a good way to say it looks like it but it might not fit the definition 100%.
respectful naming of your opponent Posted Oct 15, 2007 19:04 UTC (Mon) by sepreece (subscriber, #19270) [Link] "These people never create anything"
While they don't build anything themselves, the money they provide to inventors or other patent holders who do invent things and the access to inventions that they provide to companies that want to build things embodying those inventions is part of the equation that is used to justify patents.
That is, they didn't "take over a ill-defended bridge", they went out and bought a bridge on the open market.
Patents != innovation Posted Oct 15, 2007 19:44 UTC (Mon) by dwheeler (subscriber, #1216) [Link] That's the theory, but not the practice.In practice, all a patent troll does is purchase a patent from someone ELSE who didn't invent anything either. In practically all cases, the actual INNOVATION occurred many years before the patent application, and/or was obvious to anyone in the art (and thus should never have been granted a patent). Both the original person applying for the patent, as well as the person who bought the patent, have nothing to do with innovation. All algorithms and software were originally barred from patent protection. We have an existing legal system for protecting software (copyright), and there is no evidence that there was a lack of innovation requiring the addition of software patents to the set of legal patents. Sure, the idea behind patents is that we have to pay people to innovate or they wouldn't innovate, but the whole thing is upside-down. But it's "patently" untrue; people innovated in software for years before the patent system was enforced on software. The patent system is just another unnecessary government intrusion into the marketplace. As with most software developers, I think software patents are an egregiously bad idea; they reward people for NOT working (file patents instead of producing useful products). Patents may work in other fields, but they're simply inappropriate for software. Problem is, they'll keep going until a group works to CHANGE THE LAW and GET RID of software patents. There isn't a live group that's working to do that, to my knowledge; much of the anti-patent work recently has been in Europe, not the U.S. The "patent reform" work in the U.S. is primarily funded by large organizations who want to tweak the system, not eliminate it... they tend to be organizations who make money overall from the status quo.
Patents != innovation Posted Oct 15, 2007 20:02 UTC (Mon) by sepreece (subscriber, #19270) [Link] I'm reasonably sure that the people who applied for this particular patent were, in fact, doing work that was actual innovation and that they were doing it because the company they worked for (Xerox) was willing to invest a lot in bringing smart people together to generate new ideas.
I generally don't think that that kind of investment is needed today in software, except in very narrow cases. I generally agree that software patents could be eliminated or radically curtailed without affecting innovation.
Patents != innovation Posted Oct 15, 2007 20:48 UTC (Mon) by and (guest, #2883) [Link] > I generally agree that software patents could be eliminated or radically> curtailed without affecting innovation.
Their elimination almost certainly would severely affect innovation in the
Patents on completely abstract concepts like software are simply a stupid
Patents != innovation Posted Oct 16, 2007 0:34 UTC (Tue) by bojan (subscriber, #14302) [Link] > I'm reasonably sure that the people who applied for this particular patent were, in fact, doing work that was actual innovation and that they were doing it because the company they worked for (Xerox) was willing to invest a lot in bringing smart people together to generate new ideas.
I think you're making it sound a bit too much like "poor old inventors needed protection badly". This "invention" could have been protected by copyright (if they actually bothered to implement it, which would keep them in the job for a lot longer), which in case of software also gives holders a unique ability to ship binary only to the outside world (therefore further delaying what imitators can do). They could have also used contracts to ensure trade secrecy with the licensees.
So, these poor defenseless folks actually had two powerful mechanism to protect their work, none of which are available to say an inventor of a new auto part. Given that and given that software innovation doesn't require huge investment before beginning (a PC?) and also given that the field's landscape changes on a monthly basis, I think affording these people yet another 20 year monopoly (and on something that requires least effort when it comes to software development) is completely counter productive.
Patents != innovation Posted Oct 16, 2007 0:54 UTC (Tue) by sepreece (subscriber, #19270) [Link] I've already said I think software patents could go away without affecting innovation, so you're basically preaching to the choir. However, (a) they did implement it, (b) the problem with copyright is that it protects only the specific implementation, which is obviously much weaker (if the goal is to provide protection that increases the value of innovations) than patents (c) the problem with trade secrets is it's hard to protect a "secret" that's part of the user interface, and (d) in the mid-1980s the barriers to innovation in the field were significantly higher. These guys, and the rest of the PARC crew, came up with central innovations because they were smart, because they were working together, and because innovating was their full-time job, because their employer wanted to drive innovation (and reap the attendant benefits).
Things are very different today; that rate of change is an obvious reason why the 20-year terms was a mistake.
Not sure what the reference to auto parts is meant to suggest - all of these protections are available to people who invent auto parts (copyright only in a limited number of places). [And note that copyrights last a lot longer than patents and that the non-visibility of trade secrets is the key argument in favor of patents - by forcing inventors to trade disclosure for protection, it enables others to build on top of the patented innovations.]
Patents != innovation Posted Oct 16, 2007 1:25 UTC (Tue) by bojan (subscriber, #14302) [Link] As for (a), well then obviously they were to reap the benefits of copyright protection, right?
Regarding (b), that's not a problem, IMHO, it's a feature. And it is well suited for software, because software is essentially text.
In terms of (c), that's the whole point. The secret would refer to the implementation bit only, which is also protected by copyright.
As for (d), I started high school (year 9) in 1981 and that's when we received a donation of eight used Cromemco computers from UCLA. So, the doors to cheap stuff were opening big time in 1980's. By the time I started my university studies, PCs were everywhere. And I didn't live in a developed country at the time. I would venture a guess many middle class people in the U.S. could afford a PC of some sort in 1980's.
> These guys, and the rest of the PARC crew, came up with central innovations because they were smart, because they were working together, and because innovating was their full-time job, because their employer wanted to drive innovation (and reap the attendant benefits).
I don't doubt that they were smart. I don't doubt they came up with a lot of new stuff. I just think that double-dipping (or triple if you like) is way, way over the top.
> Not sure what the reference to auto parts is meant to suggest
It is meant to suggest that you cannot copyright an implementation of an auto part (you can the blueprints). And once it's out in a car, anyone can see it, so it's no longer a trade secret either. Hence, it's fair inventors gain patent protection for these things, as otherwise anyone could easily imitate without compensation.
On the other hand, if you're in the software business, you get to copyright both the blueprints (source) and the implementation (shall we say binary here), you also get to keep things secret by binary only distribution, obfuscation and trade secrets using contracts with licensees. And you get patent protection (for mathematical algorithms, no less) on top of all that.
The problem with governments in the U.S., Australia and similar countries is that they started equating progress with economic activity (i.e. such and such number of billions of dollars were made in patent trade) - two things that may be correlated, but are not the same.
Patent = disclosure for protection Posted Oct 25, 2007 9:58 UTC (Thu) by forthy (guest, #1525) [Link] Guys, remember that a patent was once granted to exchange disclosure of trade secrets for time-limited protection. This is what's IMHO covered with the original idea to "obvious to one skilled in the art". I.e. something that doesn't need a tantamount of reverse engineering is not worth a patent, because disclosing the blue print is not necessary. The current legal interpretation of "obviousness" is rather different, but has recently changed a bit. Neither the old nor the new definition really takes the idea of the patent as such into account (an idea which was there before the industrialization took off at around 1860). A patent is not there to protect innovators, it's there to increase the overall amount of knowledge, by giving an incentive to disclose trade secrets. That's the deal, nothing else. For all things which can be copied without much troubles, there's copyright. The whole ideas of copyright and patents don't fit in well with our modern understanding of state and economy, anyway. A patent is a privilege, granted by the state. Patents as such are a medieval idea; only in the 19th century, this idea was applied to innovations. The whole idea of a privilege is contrary to the idea of a free society. A more appropriate concept for today would be to generally reward disclosure, and punish trade secrets. Free software culture shows that this can be done: not disclosing the source of a software is considered "evil", opening up is rewarded by community feedback. The state, if we need a leviathan to do this kind of stuff, could encourage disclosure with tax reduction. The open-sourcing of some software could be regarded as "charitable", and as consequence, tax-free allowances could be given to the project members (opposed to taxed salary). Same for innovations in other fields. This takes people right at their greed - even Bill Gates would open-source Windows, if he can save lots of taxes by doing so. Many people invest into tax-saving schemes even if it's a total loss.
This is not trolling, but using the patent system for what it was designed. Posted Oct 15, 2007 18:35 UTC (Mon) by ber (subscriber, #2142) [Link] I agree that "troll" is a bad word to use, but not out of respect for the opponents, but because this sort of behaviour wanted by the proponents of the patent system. It is a "troll system" towards innovators.Policymakers get the wrong idea, that there are a few bad sheeps and they just can adjust it a bit and the system would be fine.
descriptive naming of your opponent Posted Oct 15, 2007 18:42 UTC (Mon) by kirkengaard (subscriber, #15022) [Link] Please also understand trolling in the sense of fishing - these 'nets' of patents lie waiting for someone to fall foul of them. It is also descriptive of the fairy-tale troll who jumps out from below a bridge to waylay travelers intent on making use of the bridge it guards (but did not build).
This terminology is not slander - it is descriptive imagery appropriate to the activity described.
descriptive naming of your opponent Posted Oct 15, 2007 18:59 UTC (Mon) by nowster (subscriber, #67) [Link] The word describing such fishing is usually written as "trawl" in the UK. Like much in computing, the US spelling is taken (eg. program) for the computing term to distinguish it from other senses.
The word could also conceivably have come from the cant slang "Polari".
descriptive naming of your opponent Posted Oct 15, 2007 19:53 UTC (Mon) by sepreece (subscriber, #19270) [Link] I believe trolling and trawling are different kinds of fishing - trolling involves dragging a line at very low speed, trawling involves large nets.
descriptive naming of your opponent Posted Oct 15, 2007 23:14 UTC (Mon) by drag (subscriber, #31333) [Link] Troll is a double meaning. Remember this is english.. the written word is only part of it. It's ment to be spoken also. Troll, trawl, etc. They sound the same.
A troll is a monster under the bridge that eats children. Patent trolls are like that.
A patent troll is some corporation that produces nothing worthwhile. They have no products, they have no software they make themselves.
In the modern U.S. software environment it's virtually impossible to produce software and not infringe on software patents. There are hundreds of new software patents per week. Thousands per month. Tens of thousands per year. Every year the number is growing.
I am not exagerating at all. I am saying there are thousands of new software patents per month. This is the literaly truth.
It's impossible to make software and NOT infringe on patents. You can't avoid it. It's not worth trying. You'd have to have something like 10 expert patent/software/IP attornys per programmer to even come close to avoiding them and even then it's no garrentee.
So what software corporations like Microsoft or Novell have to do is get as many software patents themselves. This way if other corporations sue them for infringement then they can sue back.
So by definition Microsoft or Novell or Sun or IBM can NOT be patent trolls. They produce software and thus are liable to software patents themselves. Their threat is neutered. Microsoft's threats are hollow.
Patent trolls don't produce any software. They don't produce any products that anybody can use. No hardware, no software, nothing. Thusly they are completely immune to counter lawsuits.
Patent trolls are corporations formed around obtaining software patents from failing companies or other sources of patents. Once they obtain these patents then they are free to extract licensing fees out of legitament companies. Most of the time you do not hear about them because most of the time it's cheaper for real software companies to pay them silently, under the table, even.. rather then fight them.
They are usually lawyers and such that form patent troll companies. So they know how much a lawsuit would cost a company. So they make sure that the licensing fees for a patent are less then what it would cost to defeat their patent.
So say they have a weak patent and they figure it would take a court case and a couple of appeals to have their patent destroyed. Say that would cost a software company 40-50 thousand dollars to win. So they charge 30 thousand dollars. They sue one company after another, make them sign NDAs so that nobody knows how much they realy paid and it's off to find another target.
THAT is what a patent troll is.
They don't make anything. They don't produce anything. They don't innovate, they don't have any innovation to offer to other people. They simply purchase the remnents of failed companies and extract licensing fees from real working people. It doesn't realy f-ing matter if the people that made the patent originally did anything innovative. The people that are doing the innovating and the people that are doing the sueing are not the same people.
If you don't like 'Troll' then call them:
People call them 'Patent Trolls' because that's the NICE term. They are actually being very very nice in using that term.
So don't put down the term. There are ones that are much much worse.
Most people that do end up supporting patent trolls are, ironicly, academic sorts and institutions. Those folks are not happy with the taxation and other fees that extracted from corporations and working people to fund their schools. They sometimes feel that they produce some sort of innovation in software-land and that patents and licensing fees are a effective way to get secondary source of financial support. They are just blinded by the $$$$. Since they, themselves, rarely produce anything of value they are mostly isolated from the reality of patents. Ivory towers are nice, I guess.
(that's not to say that all academics are like that, of course! Many are very valuable people)
descriptive naming of your opponent Posted Oct 16, 2007 0:27 UTC (Tue) by nix (subscriber, #2304) [Link] One minor point: the trawl-versus-troll discussion was in reference to theUK, where those words would invariably be pronounced quite differently, to the degree that it's hard to imagine confusing them.
descriptive naming of your opponent Posted Oct 16, 2007 0:58 UTC (Tue) by sepreece (subscriber, #19270) [Link] The words are pronounced very differently in the US, too.
descriptive naming of your opponent Posted Oct 16, 2007 1:09 UTC (Tue) by sepreece (subscriber, #19270) [Link] Note (a) that the monetary numbers cited are ludicrously underestimated. A patent defense against an issued patent held by a company serious about pursuing it would typically cost multiple millions. When you're paying lawyers >$500/hour and disclosure is likely to provide you with tens of thousands of documents you have to pay lawyers to read, it adds up quickly.
Note (b) again, even though the trolls don't innovate on their own behalf, their existence makes the patents valuable, and that residual value figures in companies' decisions to invest in developing new technologies.
As I said, terms are way too long and the barriers have fallen enough that software patents don't make a lot of sense anymore. But trashing the trolls because their only stake in the game is money is silly - money is the same thing IBM or Microsoft or the Linux Foundation bring to the table - money drives large-scale innovation. As I said, I don't think the protection is needed anymore, for software, but in the mid-80s, it made a big difference.
respectful naming of your opponent Posted Oct 15, 2007 19:31 UTC (Mon) by moxfyre (subscriber, #13847) [Link] > I know this is going to sound weird to some folks, but I would appreciate it if we didn't use disrespectful terms like "troll" to denote people whose actions or roles we dislike.
> We can argue that they are doing wrong while still referring to them with a word which indicates a normal human being just like the rest of us.
I understand your sentiment, but I think the history of the term "patent troll" actually shows that it's not meant to be offensive, but rather descriptive.
I believe it comes from the folk tale of a troll who hides under a bridge for a long time. People use the bridge to get about and do their business. One day the troll pops up and demands some fee to cross the bridge, causing problems for everyone who was using it.
In the same way, patent trolls wait until a particular technology becomes popular and widely used, and then "pop up" and start demanding money to use it. Many of them own dozens of patents and just selectively enforce the ones that pan out.
respectful naming of your opponent Posted Oct 15, 2007 22:18 UTC (Mon) by superstoned (subscriber, #33164) [Link] So patent law needs a change, to ensure a company has to actively protectits patent - if it's used for say a year already, and pretty widespread, and they knew or should have known about it, it should be rendered invalid. And I believe such is the case in the Netherlands, but I'm not sure...
respectful naming of your opponent Posted Oct 16, 2007 1:18 UTC (Tue) by sepreece (subscriber, #19270) [Link] In the US, patent examination is supposed to eliminate applications that already in wide use or that should be obvious to a practitioner. Inventions that have been shipped (or otherwise disclosed) for more than a year are not eligible for patents.
If the law required that patents be actively used by the patent holder wouldn't work because the patent holder would be able to create products that were not competitive in the market (say, costing 10 times the cost of competitive products) and existed only to prove that the technology was being used.
Mandatory licensing for statutory fees could be an interesting approach. So could basing the duration of the patent on the cost/complexity of the invention process, the difficulty of the productization process, and how important the innovation is, but the difficulty of running such a process is unimaginable.
respectful naming of your opponent Posted Oct 16, 2007 13:04 UTC (Tue) by corbet (editor, #1) [Link] In this context, it's amusing to note that a judge in (of course) East Texas has forbidden the use of the term "patent troll" in his courtroom.
No threat to Linux Posted Oct 15, 2007 19:55 UTC (Mon) by amit (guest, #1274) [Link] This was sensationalised as being a lawsuit against Linux and that the patent wars could have started. This deals with some window managers Novell and RedHat use, which most likely will be Gnome / KDE. There still is nothing against the Linux kernel.
No threat to Linux Posted Oct 15, 2007 20:57 UTC (Mon) by madscientist (subscriber, #16861) [Link] That may be so, but I don't think I've ever seen anyone interact directly with the kernel--they always use some kind of user interface. And the vast majority use some kind of GRAPHICAL user interface. And since the early 90's I don't think I've seen any window manager for X that DIDN'T provide multiple desktops in some form--it's not just KDE or Gnome, it's every window manager that is in use today (leaving aside some of the safety WMs like the original twm etc.--if they are still used).
Saying that there's no patent suit against the Linux kernel in no way lessens how important this lawsuit is for all users of Linux-based distributions, not just Red Hat and Novell. Not to mention any other X-based vendor: what about Sun for example? CDE has multiple desktops. HP? IBM? Maybe they already license this patent for their proprietary UNIX offerings. The BSDs don't have any money so they're probably safe, although technically they would infringe as well.
No threat to Linux Posted Oct 16, 2007 13:42 UTC (Tue) by hummassa (subscriber, #307) [Link] control-alt-f1 disagrees with you ;-)
why MS was not sued over this Posted Oct 15, 2007 20:41 UTC (Mon) by eru (subscriber, #2753) [Link] I have long wondered why Windows does not come with the multiple workspace feature (which really irks me when being forced to use Windows 2000 at work for some things). Until now I put it down to the general non-innovativeness of Windows, but could they have been trying to avoid this patent?
why MS was not sued over this Posted Oct 15, 2007 21:10 UTC (Mon) by tialaramex (subscriber, #21167) [Link] Possible but unlikely. Most aspects of a modern windowing system are patented, in the 1980s there were dozens of companies trying to revolutionise the computer, most of them failed but left a minefield of patents behind to mark their trail. As I pointed out in a previous thread, Microsoft is routinely on the receiving end of lawsuits exactly like this one, alleging that new software or other products is infringing on some patent granted years ago to a now defunct company.
Part of our problem is that not only software patents, but all patents are crippled as an economic motivation by the fact that many inventions are arrived at by many people almost simultaneously once the constituent parts become available. You don't need a patent system to encourage such inventions, they'll occur automatically. No kind of government granted monopoly on production could have caused the home computer to arrive in the 1960s when the technology to build them didn't exist, and no lack of such government intervention could conceivably have delayed it into the 1980s when such technology already abounded everywhere, so why allow a 20 year patent on such innovations even when they seem substantial at the time ? Even a patent promising protection for 12 months from the release of the first product would be more than generous in such an environment.
patents crippled as economic motivation Posted Oct 19, 2007 15:58 UTC (Fri) by giraffedata (subscriber, #1954) [Link] What you're saying is that there's no public advantage to issuing patents for inventions which are obvious to anyone skilled in the art. As it happens, that has been understood since the beginning of US patents and it is written into the law that such inventions aren't patentable. The problem is that the law as it has evolved sets a very high standard for "obvious." There seems to be widespread agreement that it needs to be lower, but lawmakers haven't been able to fix it yet. I hope any fix doesn't use the word "software." Whether an invention is realized in software or matter is irrelevant to the question of whether the public benefits from the patent being issued.
why MS was not sued over this Posted Oct 15, 2007 21:19 UTC (Mon) by MortenSickel (guest, #3238) [Link] Well, at least for xp, you can download a virtual desktop powertoy from MS itself. It just doesn't work very well.. (I have it installed at my PC at work, but don't use it any longer, can hardly call it a toy, rather an annoyance..) M.
Powertoys XP etc. (off-topic) Posted Oct 16, 2007 22:53 UTC (Tue) by pr1268 (subscriber, #24648) [Link] (Off-topic) Actually, the "open command prompt here" feature is quite handy. Not that I care anymore; I totally gave up Windows over three years ago.
why MS was not sued over this Posted Oct 21, 2007 11:07 UTC (Sun) by spitzak (subscriber, #4593) [Link] Though unplanned, the multiple virtual desktops is simulated quite well in Windows and many users use it just like that. Just maximize the windows of your programs, and use the Alt+Tab to switch between them. The entire screen is replaced except for the persistent Alt+Tab popup. The persistent Alt+Tab popup infringes this patent.
A visit from the trolls Posted Oct 15, 2007 21:35 UTC (Mon) by madscientist (subscriber, #16861) [Link] I find this very interesting. Consider the FVWM window manager. That WM had two different concepts: virtual desktop and multiple desktops. A "virtual desktop" was the idea that your real desktop was huge, and your physical screen was just a window that looked out onto that desktop. So you'd move your screen around to see different parts of the big virtual desktop behind it. Windows could move freely on the virtual desktop, but in order to move them between desktops you had to do something special (usually a menu option or similar). I think VTWM had a similar structure. In these WMs you didn't have to have your screen "flipping" between discrete screenfuls of virtual real estate (although most of the time you did): you could drag a little viewer around to show any part of the virtual desktop on the screen.
So, does this patent cover this "one large virtual desktop" idea? It doesn't seem to, to me: it's got a completely different terminology and intent. It talks about different workspaces and discrete objects that have a spatial relationship within that particular workspace; in the virtual desktop theory there is only one "workspace" and all objects have spatial relationships to each other in that workspace, and it's the screen that is too small to show the whole thing. But I don't know...
If the "one large virtual desktop" idea is not covered by the patent then one way to work around it (until next December) is to change the existing WMs to adhere more closely to this idea. Really, it's not much more than a change in perspective and user representation, plus one new feature: the ability to show any contiguous area of the "virtual desktop" that is the size of the screen, rather than (or in addition to) flipping between discrete "windows".
Really, some WMs already do something close to this; for example I've been playing with Compiz in the Ubuntu Gutsy release candidate, and if you use Expo for example you can see all your "desktops" in one view, and drag windows between them and even leave windows halfway between them. You still can't look at half of one desktop and half of another (in normal size) but it's part-way there.
A visit from the trolls Posted Oct 15, 2007 22:24 UTC (Mon) by sepreece (subscriber, #19270) [Link] I doubt the patents would cover the "window into a larger desktop"; I think that idea is rather older than the patent.
I *think* [very light analysis] the patent is largely about the idea of being able to have the same objects in multiple windows, possibly in different places. Note that it's "the same display object", not multiple display objects that present the same underlying data - it's about linking into the same underlying graphical object, which can render itself in which ever window is visible.
A visit from the trolls Posted Oct 15, 2007 22:34 UTC (Mon) by madscientist (subscriber, #16861) [Link] Hm. Has anyone read the claims in the lawsuit that was filed, rather than the claims in the patent? Presumably the lawsuit will have to list specific instances they allege violate the patent, including programs and the specific behaviors of those programs. Is the lawsuit available publicly yet?
That should give us a lot of information about what they, at least, believe the patent means.
Reading the lawsuit Posted Oct 15, 2007 22:43 UTC (Mon) by corbet (editor, #1) [Link] Yes, of course I read the complaint - I also linked to it so you can. The complaint lists specific claims that are said to be violated, but has no information on just how those claims have been violated. That will, presumably, come during the discovery phase.
Reading the lawsuit Posted Oct 16, 2007 1:22 UTC (Tue) by sepreece (subscriber, #19270) [Link] I believe, though I didn't check with my-daughter-the-IP-attorney, that the complaint only needs to allege one representative infringement in each patent - that the litigation would consider the whole patent regardless of the complaint because it's the overall amount of overlap that drives the decision.
Reading the lawsuit Posted Oct 16, 2007 2:36 UTC (Tue) by madscientist (subscriber, #16861) [Link] Sorry; that wasn't an accusation. More like an idle question. I haven't seen anyone address the specifics of the complaint... most likely because there aren't any :-/.
A visit from the trolls Posted Oct 15, 2007 22:51 UTC (Mon) by nix (subscriber, #2304) [Link] I find your use of the past tense in regard to fvwm disturbing. :)
(I just wish it supported compiz-like effects, but I suspect I'll have to
3D FVWM in the present Posted Oct 16, 2007 1:00 UTC (Tue) by tzafrir (subscriber, #11501) [Link] What about Metisse?
A visit from the trolls Posted Oct 16, 2007 8:07 UTC (Tue) by Los__D (subscriber, #15263) [Link] You still have virtual desktop, right inside X itself. (There is settings for both the virtual desktop size, and "physical" desktop size) It could work exactly like the multiple desktop idea, instead of jumping pixels, you could jump screen sizes, and the panel(s) could be made as overlays in the desktop. Question is if that isn't just another way of implementing multiple desktops, and would also be covered. But if we skipped the jumping of screen sizes, and kept the panel(s) overlaid, then it could possibly be non-infringing, and maybe quite nice. - That we maybe have to bow to the will of the patent trolls some day, on the other hand, is quite disgusting. Even more, since us outside US will be affected by ridiculous American law, again.
Tvtwm Posted Oct 15, 2007 22:56 UTC (Mon) by Halmonster (subscriber, #4537) [Link] Wasn't this one of the first virtual window managers? I used to run it on an Opus Sparc1++ in 1993. When was it first developed?
Tvtwm Posted Oct 16, 2007 0:48 UTC (Tue) by JoeBuck (subscriber, #2330) [Link] First Usenet reference I can find is from August 1990. So it wouldn't work as prior art. However, the discussion refers to an older window manager named vtwm.Another influential window manager was gwm, the "Emacs of window managers" (I think the first to provide extensibility via a Lisp interpreter). But it's also from 1989, and some of the early discussion talks about implementing ROOMS-like functionality, which unfortunately makes clear that it won't work as prior art.
Tvtwm Posted Oct 17, 2007 0:01 UTC (Wed) by da4089 (subscriber, #1195) [Link] Tom LaStrange, the author of tvtwm, twm and swm, is still active in the industry (although no longer writing window managers). He was interviewed recently by LinuxPlanet, and has a web page He would likely be able to answer any relevant questions ...
A visit from the trolls Posted Oct 17, 2007 18:18 UTC (Wed) by maceto (guest, #16498) [Link] two things here: RedHat will fight this why? See JBOSS patent issue that RedHat is fighting as we speak and: http://desktoplinux.com/news/NS6584091276.html "Red Hat, based in Raleigh, N.C., had partnered with, sources close to Red Hat indicate that it has made a deal with Fluendo, the Spanish Linux/Solaris multimedia company. The RHGD codices are meant to be used as plug-ins for the GStreamer Multimedia Framework. GStreamer, in turn, is used by many Linux multimedia applications such as the Totem video player, Rhythmbox music player, Banshee music player, Elisa media center and Jokosher sound editor. Talks with Microsoft broke down, according to sources, after Microsoft refused to license the codices to Red Hat without a patent deal. Red Hat has repeatedly said it has no interest in signing a patent partnership with Microsoft." RedHat and deals re patents- well make your own conclusions. Then there is this: Open Invention Network: Oracle, RedHat, Novell, Google, NEC, Sony and IBM. Will they join forces as they all said? IBM, Oracle (built using RHEL sources), Sun + others might want to wait or join now as they will face the same troll. Yes I am choose to use troll.
A visit from the trolls Posted Oct 25, 2007 15:33 UTC (Thu) by DutchUncle (guest, #48667) [Link] a) Xerox Alto predated by at least 10 years. b) I saw split windows and alternating windows over SDLC terminals on IBM mainframes in the 1970s. c) Remember that for many years, particularly the boom computing years of the '60s and '70s, it was *impossible* to patent software. The USPTO wouldn't take applications, and decisions on systems said things like "algorithms are laws of nature". That's why it became so ridiculous that they went all the way to patenting "business methods" like remembering what a customer likes and suggesting similar items (gee, haven't shopkeepers been doing that forever? not to mention moms?)
A visit from the trolls Posted Oct 26, 2007 8:47 UTC (Fri) by alext (guest, #7589) [Link] Microsoft might not be the specific problem here but they're still a big problem. Reason being that if Microsoft start attacking Linux with patent suits for their so far fantasy claims of 235 (or so) infringements it is likely to cause a major retaliatory set of suits from people like IBM. The obvious way for them therefore to use patents to attack is through isolated mediums like intellectual property companies that make no products and therefore are pretty much immune to being sues back. Such companies are inevitably going to be the assassins of choice for a company like Microsoft. They have a record of it.
|
|||||||||||