Red Hat is great [LWN.net]

Red Hat is great

Posted Sep 30, 2010 3:35 UTC (Thu) by FlorianMueller (guest, #32048)
In reply to: Red Hat is great by coriordan
Parent article: Red Hat Responds to U.S. Patent and Trademark Office Request for Guidance on Bilski

We don't know what influence their brief had on the court.

I didn't say it had, or it didn't have, influence. I pointed out that they asked for "affirmance" and failed to get it.

For all we know, the court might have been considering making software patentable

It does't have to make software patentable because it already is. The question wasn't whether they were going to introduce software patents as a new thing. It was whether they were going to be restrictive.

It's a public statement, so we can always point to it when we need an example of a software company that innovates, develops, and earns profits without suing its competitors.

A business model that even a Red Hat investor described to me as "parasitic" is obviously not a good reference that will convince policy-makers.

As you point out, we need business support. ...then when we get it, you complain.

I didn't say it's bad that if companies speak out against software patents although, as I said before, policy-makers won't feel that Red Hat's business model can work for the economy at large.

I pointed out that the way they did this isn't a serious initiative. The Supreme Court made it very clear that if you want to restrict the scope of patent-eligible subject matter, you have to talk to Congress, not to the judges. The USPTO doesn't make the law. It only applies the laws made by Congress and interpreted by the judges. Asking someone for the abolition of software patents who doesn't even have the authority to do so is a non-starter and therefore not a credible initiative.

If they wrote to all members of Congress that the Bilski ruling shows software patents won't go away without new restrictive legislation, then I'd doubt that it can succeed politically, but at least they'd be talking to the very institution that would have the authority to abolish software patents if it wanted.

You need a strong base of significant companies with R&D-centric business models (not mere monetizers) to ask lawmakers to act. Anything less will be unproductive at best, or counterproductive at worst. Or just a PR stunt, like in this case.

to post comments

Red Hat is great

Posted Sep 30, 2010 13:24 UTC (Thu) by coriordan (guest, #7544) [Link] (1 responses)

> I didn't say it had, or it didn't have, influence. I pointed out that they asked for "affirmance" and failed to get it.

But that's how these things work. You know this.

Neither party wants to be seen as criticising past rulings, so everyone positions themself as agreeing with the court by asking for "affirmance, with certain clarifications".

For example, Red Hat and IEEE-USA both called for affirmance, but one asked the court to clarify that software was never patentable, and the other asked for the opposite.

> Asking someone for the abolition of software patents who doesn't even have the authority to do so

You might be right that their "value" arguments will fall on deaf ears. That's why I focussed on finding direct implications in the text of the Bilski decision. RH took a different approach. I think mine was the right one :-) but I'm certainly happy that someone covered the other angle, just in case.

> Anything less will be unproductive at best, or counterproductive at worst.

I don't see the logic there. As I see it, at worst it will be unproductive, in which case their effectiveness only as low as the many who didn't submit any response - nothing to criticise.

Affirmance

Posted Sep 30, 2010 13:45 UTC (Thu) by FlorianMueller (guest, #32048) [Link]

For example, Red Hat and IEEE-USA both called for affirmance, but one asked the court to clarify that software was never patentable, and the other asked for the opposite.

Yes, two parties can ask for affirmance and still have desires and concerns about what else should or might happen.

I said that what Red Hat asked for (affirmance) wasn't enough to do away with software patents, but affirmance would have been a step in a restrictive direction. The IEEE obviously didn't want things to be any more restrictive, and Red Hat would have liked them to be even more restrictive. Since the Court, however, walked in the very opposite direction as that desired by Red Hat, it's fair to say Red Hat failed to get what it wanted. It wanted at least affirmance, ideally something more restrictive; there was no affirmance but instead a clearly less restrictive line.

As I see it, at worst it will be unproductive, in which case their effectiveness only as low as the many who didn't submit any response - nothing to criticise.

You quoted only the "Anything less" sentence. But "less" is always relative to something, so here's my statement again: "You need a strong base of significant companies with R&D-centric business models (not mere monetizers) to ask lawmakers to act. Anything less will be unproductive at best, or counterproductive at worst. Or just a PR stunt, like in this case." So "anything less" related to the whole thing, including what kinds of companies you need and what they should do. By "counterproductive" I mean the impression it can make in the political arena, not in terms of what the USPTO will establish as guidelines. In terms of the USPTO's guidelines, it will just be "unproductive". I looked at it in terms of what would have to happen to bring about change.