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Some Observations on Oracle v. Google (Groklaw)
Groklaw has an
article by Mark Webbink (law professor, former Red Hat general
counsel). "So if you are going to develop a new implementation of
something like the Java run-time environment, you have to not only use a
clean room in order to avoid copyright claims, you also have to work around
any relevant patents (and this doesn't require a clean room). Suffice it to
say that the approach Google has taken has some potential holes in it with
respect to patents."
(Log in to post comments)
my kinda offtopic thoughts Posted May 12, 2011 14:09 UTC (Thu) by coriordan (guest, #7544) [Link]
I'm beginning to think that the biggest victory of the pro-swpat camp has been framing the debate in terms of big court cases.
Reading the mass media, one'd think that software patents were just a problem for Google, or for Nokia, or for Apple, or for HTC...
In Oracle v. Google, I would love to see the court reject Oracle's patent accusations, but in the bigger picture, these cases aren't the problem. In most cases, neither party deserves support from the public, and neither party is trying to abolish software patents, and there's usually an out of court settlement which removes the risk of the defendant paying any fines in return for the patent holder avoiding the risk that their patent gets invalidated.
This issue drastically needs to be re-framed in terms of harm to computer users.
my kinda offtopic thoughts Posted May 12, 2011 14:33 UTC (Thu) by dgm (subscriber, #49227) [Link]
Very good observation. But there's people out there that hasn't stopped explaining the harm that patents (software or otherwise) have been doing, not only to computer users, but to society as a whole.
my kinda offtopic thoughts Posted May 12, 2011 14:44 UTC (Thu) by ccchips (guest, #3222) [Link]
Repeatedly, I have seen advertisements from drug companies, just around the time their product goes generic, for the "time-release" version.
I have an understanding of the need for drug companies to do research, but it looks to me like patents are a great way for them to fleece people who are sick, or who have to pay insurance for sick loved ones.
my kinda offtopic thoughts Posted May 12, 2011 15:01 UTC (Thu) by AndreE (subscriber, #60148) [Link]
And let's not get into gene patents.
In Australia our brave politicians decided that the question of gene patenting was just too difficult to tackle.
my kinda offtopic thoughts Posted May 12, 2011 15:38 UTC (Thu) by rahvin (subscriber, #16953) [Link]
But there are costs to re-approving different formulations of a proven drug. The time release versions you discuss are a new formulation and have to redo their phase III clinical trial. That single test is a significant portion of the expense of a drug. To get a working phase III you need about 3000 participants whom you've obtained a full medical history from and who are on no other drugs, you have to pay them and all the staff monitoring them and cover any medical expenses related to the trial along with covering any lawsuits in the case the drug kills someone and they get sued (those costs are combined and laid across every trial). Once you do the phase III you have to do the specialized trials where you test the drug in combination with the drugs like Coumadin and others that if there is a reaction the patient will end up dead. Then once you get approval you have to do a long term study and long term monitoring for drug interactions that didn't play out in the trials.
In all fairness time-release versions are very new and getting them right is very hard. You are talking a formulation and coating process that releases drug continuously at a set rate while in the stomach where everyones stomach chemistry varies. It might seem silly but the tech in time release pills is very complicated and very difficult to get right. I'm not a huge fan of the patent process or drugs with extensive government funding being patented but people need to realize that the federal oversight process adds pretty extensive costs that have to be recovered or no one is going to produce drugs without the government paying for the whole process.
my kinda offtopic thoughts Posted May 12, 2011 16:00 UTC (Thu) by coriordan (guest, #7544) [Link]
I don't have a position on pharma patents, but I think the info in your comment is an important example of why patents in different fields have to be considered separately. For another angle, the "good guys" (our counterparts) in pharma are the generics companies, but they're not calling for pharma patent abolition. They want reform.
I presume they know their field, so I wouldn't contradict them, and I hope they leave our field to us, and don't try to apply their "reform" solutions to our problem.
In a few circumstances it's useful to show the general flaws in the patent system so that we can say: this system is a mess and should be applied conservatively (if at all). But in general it's best to stick to our area: software development.
my kinda offtopic thoughts Posted May 13, 2011 21:12 UTC (Fri) by obi (guest, #5784) [Link]
Just remembered this old blog post about the subject:
http://righttocreate.blogspot.com/2005/12/why-drug-compan...
my kinda offtopic thoughts Posted May 12, 2011 15:00 UTC (Thu) by AndreE (subscriber, #60148) [Link]
Well it's a pretty common problem isn't it? Issues that effect a large number of disparate individuals are hard to bring to light and promote.
It's much easier for large corporations who can focus their message and targets to promote their agendas, than it is for an formless group such as "consumers" to coordinate and effectively voice their common concerns.
my kinda offtopic thoughts Posted May 12, 2011 15:45 UTC (Thu) by coriordan (guest, #7544) [Link]
That's the problem alright.
We can still win this, but we first have to realise that the current direction is not inspiring activists, and is not bringing us closer to the goal of abolition. Then we need a new model that will work.
For a long time, I thought that the US Supreme Court was our best chance, but I'm now looking toward Congress. People think that's an impossible goal, but the problem is that it's the only solution. If we win in the Supreme Court, but have no support in Congress, the pro-swpat entities will rush through new legislation. So even a court victory requires support in Congress if it's to last.
Australia and New Zealand are good examples of how parliaments can, possibly, do the right thing. For anyone interested, there's info here:
http://en.swpat.org/wiki/New_Zealand
I have ideas for what to do in the USA, which should turn into public projects in the coming months.
my kinda offtopic thoughts Posted May 12, 2011 19:31 UTC (Thu) by klbrun (subscriber, #45083) [Link]
The USA does not have a parliamentary system of government, which is one reason it is so right wing compared to the rest of the Western developed world. What works in Australia and New Zealand probably won't work in the USA.
my kinda offtopic thoughts Posted May 12, 2011 20:18 UTC (Thu) by coriordan (guest, #7544) [Link] It'll be harder, but is there any other option?
Strategy Posted May 12, 2011 20:56 UTC (Thu) by boog (subscriber, #30882) [Link]
What about OSS-friendly "patent pools" such as the Open Invention Network? They are really beginning to gather some very heavy hitters: Google, Facebook, Oracle (ironic),... That helps send a signal that some of the fastest moving and most successful companies would happily have nothing to do with patents. In that sense the Googles and Facebooks are perfect poster children for success in computing without patents. That could/should be publicised. If enough companies buy into the OIN, the politics will almost happen automatically. I'm waiting for a bunch of Android handset manufacturers. Maybe Google will donate the Nortel patents to the OIN? That should get their attention.
On a related note, I still wonder whether Google couldn't obtain protection from Oracle by getting Dalvik listed as part of the (very broadly defined) Linux System. As I understand it, they would then receive free licence to all of Oracle's patents.
OIN can't fix the problem, and doesn't want to anyway Posted May 12, 2011 21:19 UTC (Thu) by coriordan (guest, #7544) [Link]
Software developers need to write software that can play modern video formats, and that can be compatible with existing software from Microsoft and Apple.
OIN can't do anything to help with either problem :-(
OIN didn't submit anything for any court case which could have narrowed the scope for patenting software, and they don't support any anti-swpat campaign.
OIN is also powerless against trolls. They do some good work, but they're not a solution.
OIN can't fix the problem, and doesn't want to anyway Posted May 12, 2011 21:50 UTC (Thu) by boog (subscriber, #30882) [Link]
I'm not denying any of the above, but I still feel that the OIN is a place where companies could grow to like the security of eliminating some patent threats (from competitors who are also members) and therefore realise that that they would be very happy without software patents. I think that is going to be a prerequisite for mobilising sufficient political forces to make change happen.
In other words, no, OIN can't fix most patent problems directly (and isn't even trying), but I think it could still be the seed of the final political solution. The first step is to isolate patent trolls: real makers and innovators on one side (OIN) and trolls on the other.
OIN can't fix the problem, and doesn't want to anyway Posted May 12, 2011 22:40 UTC (Thu) by drag (subscriber, #31333) [Link]
If enough people join it can at least reduce the disadvantage that OSS software faces when competing against government-supported corporate entities.
If you get a _LOT_ of patents with new patents added continuously then that could put OSS and Linux on equal footing with other major corporations.
Unfortunately this costs millions.
Literally hundreds of new software-related patents are being approved each month and it's going to be very difficult to keep up. It's a disaster of epic proportions and is how large corporations use their millions to pay off the government to protect their interests. It's effectively a legalized protection racket.
OIN can't fix the problem, and doesn't want to anyway Posted May 12, 2011 23:51 UTC (Thu) by coriordan (guest, #7544) [Link]
I don't think it's aimed in that direction. They're reducing a specific type of worry: basic system components. If Facebook or Google decide to become patent trolls (ah, "monetise their patents for their shareholders' benefit"), it'll be their web development and interface patents we have to worry about, not their kernel or compiler patents.
OIN's policy is IBM's wish: basic components can be used freely, and the top layers are patented.
So the community is free to improve the building blocks for IBM's benefit, but most developers (i.e. the developers in the most active fields) will be stung just as before by the patents of IBM and such. For a GNU/Linux distro, this means half the packages being safe, and half being in danger, which means no one can safely ship a whole system.
OIN solves IBM's problem, and by solving some problems it sends legislators the message: don't worry, we're fixing this problem for ourselves. (Yeh, but "ourselves" is a narrow group.)
This seems to be intentional, as was visible in the OIN-LinuxFoundation press statements just before the deadline for submitting amicus briefs for Bilski. While anti-swpat groups were encouraging and helping people to write informed submissions, OIN-LF was buying patents from Microsoft and saying "This deal shows the mechanisms the Linux industry has constructed to defend Linux are working".
(I can actually say some positive things about OIN too :-) but every forum that discusses them seems to overflow with positive comments, for which I just don't see the basis, so I always end up pointing out the negative.)
OIN can't fix the problem, and doesn't want to anyway Posted May 13, 2011 19:47 UTC (Fri) by FlorianMueller (guest, #32048) [Link] I've criticized the OIN so often I don't have to repeat my points, but I would like to recommend this video recording of a presentation made at Stanford University last week. Two law professors are (still) working on the Defensive Patent License and it's a much more honest approach than the OIN. But it obviously isn't a substitute for abolition either.
Strategy Posted May 13, 2011 2:00 UTC (Fri) by njs (guest, #40338) [Link]
Google is a terrible poster child for success in computing without patents. They're perhaps the only successful software company where one can argue that patents played an important role in their success (specifically, the PageRank patent, which they have never licensed for any price).
I'm not convinced they wouldn't have won anyway -- Google was pretty good by the time anyone else realized that PageRank was important, and their real competitive advantage has always been in out-engineering their competitors. But in some areas Google is just as bad as any other aggressive patent holder.
my kinda offtopic thoughts Posted May 13, 2011 19:42 UTC (Fri) by FlorianMueller (guest, #32048) [Link] A patent troll named Lodsys is now asserting a patent against multiple little 'indie' iOS app developers. If more of that happens (it's already the second series of patent assertions against app developers in only six weeks, but the previous one was a lawsuit by another company against much larger players, such as Amazon and eBay), hundreds of thousands of app developers could write to politicians demanding new legislation...
my kinda offtopic thoughts Posted May 16, 2011 12:49 UTC (Mon) by pboddie (subscriber, #50784) [Link] My sensors detect that you're probably being filtered out by some people, but I was going to post a link to the story in question myself: Patent Firm Shakes Down iPhone App Programmers. Sadly, given the prevailing attitude towards the continual curtailment of their rights - they're writing for Apple's platform, remember - I imagine that many people will just pay up and treat it as "the cost of doing business", which is the kind of thing I thought you regarded as being completely acceptable these days. Have you changed your mind?
my kinda offtopic thoughts Posted May 16, 2011 12:52 UTC (Mon) by FlorianMueller (guest, #32048) [Link] I have not changed my mind. I explain the difference between patent assertions between industry giants and this case in my second post on the Lodsys story.
my kinda offtopic thoughts Posted May 16, 2011 15:21 UTC (Mon) by pboddie (subscriber, #50784) [Link] In your post you write the following: If an app developer has a revenue base of X, of which 30% go to Apple, and has to pay many times a small percentage of revenues, he'll get to the point at which there's no longer an economic incentive to stay in this business. Is it your point that highway bandits should have a sliding payment scale so that the giants pay a lot more than the little guy? Because even by your own admission, with the current situation of legalised banditry that we see here, the little guy wouldn't even have a horse to ride after a few hundred metres of his journey.
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