VFAT patent avoidance and patent workarounds

Posted Jun 30, 2009 2:55 UTC (Tue) by dlang (guest, #313)
In reply to: VFAT patent avoidance and patent workarounds by jlokier
Parent article: VFAT patent avoidance and patent workarounds

remember that the infringement isn't in knowing the technology (the patent application is required to disclose the technology so that someone 'ordinarily skilled in the field' could implement it), it's in duplicating the process described in the patent.

carefully examining the patent and tweaking your project so that it doesn't infringe is perfectly legitimate (and in fact, if the patent is well established in the industry, may be the only possible way for you to operate in the industry short of licensing the patent)

VFAT patent avoidance and patent workarounds

Posted Jun 30, 2009 3:37 UTC (Tue) by jlokier (guest, #52227) [Link] (7 responses)

"carefully examining the patent and tweaking your project so that it doesn't infringe is perfectly legitimate".

Quite, and that's exactly what the patches do. And everyone knows it. So why the "we can't tell you exactly what we're doing" part?

One could get the impression that even if it's legitimate to do, it's not legitimate to admit to doing it. Which seems thoroughly perverse.

VFAT patent avoidance and patent workarounds

Posted Jun 30, 2009 7:27 UTC (Tue) by jzbiciak (guest, #5246) [Link] (6 responses)

I think there's an important detail being missed:

The FAQ makes an important point related to workarounds that the community should hear: publicly questioning the effectiveness of a workaround can have fatal results.

It's not that we can't describe exactly what we're doing. (The description of the VFAT patch seems pretty complete here, with all its rigarmarole to avoid automatically writing two filenames for the same file to the directory structure.)

What's problematic is the process of poking holes in the workaround in public. Even if the "hole" you poke is imagined, creating the impression that the implementers know that their workaround doesn't actually work around the patent gets you back into the appearance of "willful infringement" territory. At least, it becomes easier to make that argument in court, particularly if the court isn't as tech savvy as the implementers are.

Keeping the hole-poking discussions private is what's more important. Yes, it's a loss of transparency, and yes, we should hold this up as a shining banner of why software patents are bad.

VFAT patent avoidance and patent workarounds

Posted Jun 30, 2009 20:57 UTC (Tue) by nix (subscriber, #2304) [Link] (5 responses)

So what happens if (when, more likely) someone claims a patent on some
aspect of task scheduling or memory management or something else core to
the OS? Must we stop discussing *that* on l-k as well?

This alone is quite capable of destroying open software development. They
don't need valid patents: this chilling effect on its own will do it.

(And now they've seen the effect of asserting a patent on something
relatively minor which they unquestionably did invent, like VFAT, who
knows what'll happen next?)

VFAT patent avoidance and patent workarounds

Posted Jun 30, 2009 22:17 UTC (Tue) by jzbiciak (guest, #5246) [Link] (3 responses)

This is why so many technical folks don't proactively go read the active patents at the USPTO (or other patent organization). You can't willfully infringe if you are truly unaware of the patent.

For example, if this VFAT patent was just buried in the piles of MS patents and nobody had brought it up, we wouldn't have this patch. It's not until MS starts flexing its muscles that we say "ok, what now?"

If some patent troll comes along claiming against our scheduler, there's no claim of willful infringement at that point, because we simply didn't know about it. Discussing the workaround gets tricky, and that's the part that sucks. Invalidating the patent with prior art also is interesting at that point.

In any case, in your imagined scenario, the mere fact of the patent's existence didn't stop us from coming up with our version of the scheduler to begin with. It just crimps our style in discussing how to handle the patent troll once he shows up and only if he shows up.

It sucks and I certainly don't like it. There may be some chilling effect, and if there is, evidence of it should be held up as shiny examples of why the status quo is bad for innovation.

VFAT patent avoidance and patent workarounds

Posted Jun 30, 2009 23:01 UTC (Tue) by nix (subscriber, #2304) [Link] (2 responses)

I don't see how it wouldn't crimp our style discussing anything to do with
the scheduler forevermore. How are we going to discuss LFN issues of any
sort in VFAT in the open from now on? As far as I can tell, we pretty much
can't.

(A more significant reason why nobody reads patents is because they're
written in such an appallingly unreadable turgid style that by the time
you've figured out what they're talking about, you could have come up with
the idea yourself in 99.9999...% of cases. This in itself is an indictment
of patent quality... a patent library that nobody consults is entirely
worthless --- except as a weapon to use against the public. But you knew
that.)

VFAT patent avoidance and patent workarounds

Posted Jul 8, 2009 11:17 UTC (Wed) by fergal (guest, #602) [Link] (1 responses)

I don't see how it wouldn't crimp our style discussing anything to do with the scheduler forevermore. How are we going to discuss LFN issues of any sort in VFAT in the open from now on? As far as I can tell, we pretty much can't.

You can discuss almost everything. Just don't publicly say "hey I don't think this does work around the patent because ...". If you think you've found a flaw in the legal reasoning, send a private email. You probably also shouldn't send a patch for purely legal reasons and discuss them in public.

That leaves everyone who is likely to do any work on LFN reasonably free to do it and discuss it in public.

VFAT patent avoidance and patent workarounds

Posted Jul 8, 2009 18:16 UTC (Wed) by nix (subscriber, #2304) [Link]

Well, we've already seen "don't discuss details of the implementation of
this patch: $PERSON will send you a private email explaining the design"
(and then he apparently doesn't, at least not yet) which means that if
this patch goes in we have opaque design decisions in the kernel for the
sake of a single (large) country's appalling legal regime. Great stuff.

I wonder what can't-discuss-it code will be going in for the Chinese
government next? They're hot on Linux and China has a much bigger
population than the US.

effect on discussion

Posted Jul 1, 2009 13:26 UTC (Wed) by pjm (guest, #2080) [Link]

Just to clarify, I haven't seen anyone claim that we can't discuss the *implementation* of long filenames (or scheduling or whatever other hypothetical target of patent suits), just that it's dangerous to try to discuss what things would or wouldn't infringe the patent.