Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

[Posted October 2, 2009 by ris]

Groklaw covers a Red Hat filing in the Bilski case. "Red Hat has just filed its brief in Bilski, and it's saying things you certainly have been hoping someone would express to the Supreme Court. For one thing, they explain the tech, how programs are algorithms, and thus they should not be patentable. The brief asks the Supreme Court to adopt the lower court's machine-or-transformation test, but also -- yay! -- to exclude software from patentability!"

Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

Posted Oct 2, 2009 18:29 UTC (Fri) by elanthis (guest, #6227) [Link] (24 responses)

Hope they know what they're doing. If the Supreme Court rules against this now, it'll be impossible to get them to re-examine the issue of software patentability anytime even remotely soon. It's not a good idea to bring up an issue to the Supreme Court unless you're 100% positive you're going to make your case. If Red Hat gets that through, we will all of us be quite happy... but if they don't do a good enough job and fail, software patents would be "validated" and we'd end up with an even worse situation.

Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

Posted Oct 2, 2009 18:33 UTC (Fri) by dlang (guest, #313) [Link]

redhat didn't take the issue to the supreme court, it was there already. they just filed a brief on the existing issue.

Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

Posted Oct 2, 2009 18:49 UTC (Fri) by mosfet (guest, #45339) [Link] (16 responses)

we'd end up with an even worse situation.

I fail to imagine any worse situation. Anything that smells remotely like patented software is removed from Fedora. Every day more silly software patents are filed. So how can it get worse?

Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

Posted Oct 2, 2009 18:59 UTC (Fri) by drag (guest, #31333) [Link] (14 responses)

They can remove all doubt about the legality of software patents and strengthen the position and ability for patent trolls to financially rape productive companies and individuals.

So?

Posted Oct 2, 2009 20:04 UTC (Fri) by man_ls (guest, #15091) [Link] (13 responses)

You mean, like what you have now. Software patents are legal and abused every day, in and out of court.

So?

Posted Oct 3, 2009 1:44 UTC (Sat) by drag (guest, #31333) [Link] (12 responses)

Ever seen the Ghost buster movies? Remember the part were the EPA guy forces the worker to shutdown the Ghost Buster's ghost containment unit?

Then after their building explodes and spreads ghosts through out the city. The rivers turn to blood. Then then gate keeper and key keeper meets and opens up the portal in the sky. Then Gozer enters into our plain of existence and takes the form of the stay puff marshmallow man to destroy New York and start a thousands year reign of terror?

SCOTUS is like the man with his hand on the lever. Sure there was evil spirits terrorizing people before, but it ended up getting a lot worse.

So?

Posted Oct 3, 2009 6:57 UTC (Sat) by jhoger (guest, #33302) [Link] (11 responses)

Sometimes things have to get worse to get better.

Courts avoid making law, but they end up having to when legislation is vague, conflicting, or has holes in it. We have software patents because our legislative branch has never spoken directly to the issue of software patents.

Companies big and medium sized start having to account for giant potential patent liabilities, and they'll put pressure on government.

So, things getting worse could force them to address the issue head on.

So?

Posted Oct 3, 2009 8:59 UTC (Sat) by man_ls (guest, #15091) [Link] (10 responses)

Yes. In drag's very expressive example, the river of slime was not cleaned until the EPA guy turned the lever.

So?

Posted Oct 3, 2009 10:09 UTC (Sat) by busterb (subscriber, #560) [Link] (9 responses)

The river of slime was in Ghostbusters II. EPA guy was in the original Ghostbusters

So?

Posted Oct 3, 2009 10:44 UTC (Sat) by drag (guest, #31333) [Link] (8 responses)

Yes. And the river of slime fed on human emotions.. so if we all think happy thoughts then we can slime the statue of liberty into smashing software patents? I donno how well that would work out. :P

-----------------

The thing that sucks, I suspect (call it a educated guess), is that since patents are considered as assists to a corporation that many large corporations that have large software patent portfolio have a conflict of interest... If software patents go away then they stand to lose a lot of value in the eyes of investors, since it will have a impact on their balance sheets. Also they are going to lose out on a large amount of revenue and business due to the loss of the cross-licensing agreements.

Now we know that these sort of things balance each other out.. that is you pay one company for their patents and they pay for yours so the overall value to a company is negligible, but it will still impact the way it _looks_ on the stock valuation.

Sort of like how firing large amounts of workers can temporarily boost stock values because employee's wages and such are accounted as liabilities... when in fact they really a significant investment in terms of training and expertise that that company is losing and will actually often cause long-term damage to that company.

Then on top of that patents have a chilling effect on competition.

Anybody and their mom can write software. A few dozen skilled guys with some PCs that are willing to put a huge amount of personal time investment into a software project can create competitive enterprise software. It's been done over and over again.

But with software patents in the loop their is no way those same people can hire the lawyers and pay for the patents in order to survive in the market place. One whiff of a lawsuit from some large corporation and any potential investors or customers will run away as soon as a announcement is made. For small companies the mere _threat_ of a lawsuit is probably a death sentence. (and for Linux software distros the threat is enough to keep them from having competitive features.)

So I expect that large companies are loath to support efforts to destroy software patents due to these (and probably others) conflicts of interest. Paying the patent trolls is probably just a cost of doing business for them at this point.

---------------------------------------

It's like corporate tax. Corporations don't pay taxes, their customers do. (except in international market, then its the entire country that pays the price, not the individual corporations really. So again its not something that shows up in balance sheets)

As long as the costs are even across the board (say IBM pays the same patent fees that Microsoft does) then there is no competitive and little financial disadvantage to suffering through these patents. Its the individual businesses and people that pay for this overhead. One way or another.

And, in that way, software patents probably has a even more amplified effect in it's anti-competition. Microsoft can absorb the costs, so can IBM, so can other large software companies. Since it's all even then they are all forced to raise their prices to compensate. Since the same costs are paid by all these guys then there is no negative when competing against each other. However small companies can't afford the legal overhead so that they are at a significant disadvantage.

It's all pretty horrible and is probably another reason why you will never see a big push from major software vendors to limit it.

So?

Posted Oct 3, 2009 11:57 UTC (Sat) by asherringham (guest, #33251) [Link] (7 responses)

"and for Linux software distros the threat is enough to keep them from having competitive features"

I'd be interested if you expanded on this and described what you mean. Are you saying that Linux distros would include things they are currently afraid to, because of software patents? What things do you have in mind?

So?

Posted Oct 3, 2009 12:37 UTC (Sat) by dlang (guest, #313) [Link] (2 responses)

if you think about things like video codecs you find a category where distros don't ship features that desktopusers want because of patents.

you may question how big a difference this makes, but there's no question that there is an impact

So?

Posted Oct 3, 2009 16:15 UTC (Sat) by drag (guest, #31333) [Link] (1 responses)

Yes. Video codecs is a big one.

Another big one that is coming up is video drivers. OpenGL 3.0 includes several software patents. Support is required for full compatibility and OpenGL 3 is critical to being competitive with DirectX in the market place.

swpat.org pages

Posted Oct 4, 2009 5:07 UTC (Sun) by coriordan (guest, #7544) [Link]

Help to document these problems would be welcome on swpat.org:

The text you are seeing on screen, for example...

Posted Oct 3, 2009 19:24 UTC (Sat) by khim (subscriber, #9252) [Link] (3 responses)

If you are using Linux then most distributions will not use hints emebedded in fonts to show them. Because of the Apple's and Microsoft's patents. If this is not the good example - I don't know what is.

The text you are seeing on screen, for example...

Posted Oct 4, 2009 9:16 UTC (Sun) by bawjaws (guest, #56952) [Link] (2 responses)

What I don't understand is why when i turn hinting *off* (though anti-aliasing on), not only do I
personally prefer the way it looks, I find it looks identical to the rendering in Mac OS X, a system
made by the holders of the relevant truetype patents.

Furthermore, the open source fonts are less likely to have these hint instructions in the first place.
So we're turning on patented code in order to use Microsoft's licensed fonts, when there are
metrically compatible free fonts available.

So are we falling into the trap of thinking "it's patented, therefore it must be better"? After all these
are 20 year-old patents. Type was rendered very differently in those days.

The text you are seeing on screen, for example...

Posted Oct 4, 2009 22:04 UTC (Sun) by lambda (subscriber, #40735) [Link] (1 responses)

Subpixel antialiasing, which is a technique used by Microsoft and Apple for crisper display of text on LCDs, is patented, and thus disabled by default in FreeType. So while the hinting for bitmap displays is less relevant with today's antialiasing, the highest quality antialiasing available is still patented and disabled in free software for that reason.

The text you are seeing on screen, for example...

Posted Oct 6, 2009 11:54 UTC (Tue) by nye (subscriber, #51576) [Link]

A minor nit: subpixel antialiasing isn't used for crisper display. The purpose of it is to attempt to give better shapes, which is at odds with crispness at the kind of resolutions that are used with current displays.

(Personally, I can't wait for displays to get to a few hundred DPI, at which point this subpixel business might finally go away. I can't stand the chromatic aliasing caused by even the best subpixel implementations, and people are using it as a crutch now to get away with producing poorer quality fonts.)

Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

Posted Oct 2, 2009 23:17 UTC (Fri) by rahulsundaram (subscriber, #21946) [Link]

Fedora's position is a little bit more intricate. I wrote a page a while back explaining it.

https://fedoraproject.org/wiki/Software_Patents

Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

Posted Oct 2, 2009 19:20 UTC (Fri) by branden (guest, #7029) [Link] (2 responses)

I don't agree with your assessment.

The Supreme Court punts on substantive issues all the time.

Not only do they not have to resolve a case on the merits, they absolutely
don't have to address every single issue raised in amicus briefs. They
can, and do, utterly disregard amicus issues all the time.

If SCOTUS declares software patents holy and righteous, it will not be
because Red Hat forced their hand.

Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

Posted Oct 2, 2009 19:29 UTC (Fri) by markhb (guest, #1003) [Link] (1 responses)

IANAL, but it's also important to remember that whatever SCOTUS decides, it's going to be on the basis of what the current US Code is regarding patents. There's no Constitutional issue at stake; if you think the SC is going to start using "To promote the Progress of Science and useful Arts" as a limiting phrase when it's already interpreted the phrase "limited Times" three words later to mean "anything that is not literally unlimited", you're nuts.

In other words, whatever SCOTUS decides the law means here is entirely subject to any subsequent changes that the Congress decides to make to said law. It's not a "as set in stone as possible" decision as it is when SCOTUS says that something is unconstitutional, and therefore beyond the powers of Congress.

Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

Posted Oct 3, 2009 15:44 UTC (Sat) by gmaxwell (guest, #30048) [Link]

There's no Constitutional issue at stake

That isn't entirely clear. For example, section III of the the SFLC brief makes a constitutional argument based on prior SCOTUS holdings effectively arguing that the first amendment limits the scope of systems enacted under the progress clause by prohibiting any that would inhibit the free expression of abstract ideas.

It's a long shot that the SFLC brief will have any effect, but it isn't true that there is no conceivable constitutional issue beyond rules-lawyering the progress clause.

Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

Posted Oct 3, 2009 12:43 UTC (Sat) by zotz (guest, #26117) [Link] (2 responses)

"It's not a good idea to bring up an issue to the Supreme Court unless you're 100% positive you're going to make your case."

If this is indeed how things operate. Wouldn't dirty players try to take cases they want to lose to the court on shaky grounds as a preemptive move to prevent people who really want to win such a case from getting a good shot at it?

drew

Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

Posted Oct 3, 2009 19:44 UTC (Sat) by elanthis (guest, #6227) [Link] (1 responses)

They probably do, but the Supreme Court is not required to listen to any particular case. Just because you ask to bring some frivolous case up doesn't mean the Supreme Court, or an appeals court, or even a district court has to listen to it.

Red Hat Asks Supreme Ct. to Exclude Software From Patentability (Groklaw)

Posted Oct 6, 2009 12:32 UTC (Tue) by sepreece (guest, #19270) [Link]

My understanding is that they now typically hear about 80 out of 8000 cases sent to them.

Supreme Court hasn't approved software patents before, so there's hope

Posted Oct 2, 2009 21:37 UTC (Fri) by dwheeler (guest, #1216) [Link]

No one knows what the Supreme Court will rule. But there's a good argument to be made that the Supreme Court never authorized software patents and even said they should NOT be permitted. Given the terrible mess software patents have created, it's too bad the lower courts ignored the Supreme Court. You might be interested in these links: