Leading items

News from the SCO front

The SCO Group, a little while back, filed a motion asking for a delay in the trial of its suit against IBM. According to SCO, IBM's foot-dragging had slowed things to the point that SCO could not get its act together in time. IBM has now responded; the full filing can be read in PDF format. It is not particularly surprising that IBM opposes this delay.

In fact, IBM has taken this filing as an opportunity to stiffen its language against SCO in general:

Since this suit began in March, 2003, SCO has publicly touted its evidence of IBM's alleged misconduct, but has resisted disclosing the supposed evidence to IBM. In fact, SCO's Chief Executive Darl McBride commented in an interview that SCO was 'fine to go to court just on what we have before discovery.' ... In contrast to its public assertions, SCO's conduct during discovery reflects a remarkable pattern of delay and obfuscation.

It's not clear when the judge will rule on this motion.

A hearing will be held on June 9 on SCO's suit against DaimlerChrysler, with a focus on Daimler's motion for a summary dismissal of the case. As reported in Groklaw, this case appears to have drawn a no-nonsense judge who will try to see things through to a resolution in relatively short order.

The Free Software Foundation received a subpoena from SCO last year; they have now posted the subpoena on their site with some related discussion. It will surprise few to see that the subpoena is impossibly broad; the FSF has no intention of fulfilling it in its entirety. Being the FSF, they cannot stop with just the subpoena, however:

In addition to answering and/or disputing the subpoena, we must also educate the community about why it is that Linux was attacked and GNU was not. For more than a decade, FSF has urged projects to build a process whereby the legal assembly of the software is as sound as the software development itself. Many Free Software developers saw the copyright assignment process used for most GNU components as a nuisance, but we arduously designed and redesigned the process to remove the onerousness. Now the SCO fiasco has shown the community the resilience and complete certainty that a good legal assembly process can create.

The FSF is right to emphasize the importance of ensuring that stolen code is not merged into free software projects; there is no doubt that more care is called for in that regard. Claiming that the FSF's copyright assignment policies headed off a legal attack from the SCO Group seems a little strong, however. It seems just as likely that SCO was repelled by the FSF's small bank balance. IBM, too, has strong rules covering its code contributions; armies of lawyers are involved. Those rules did not keep SCO from suing IBM, however.

Expect some fun around June 2, when SCO will announce its second quarter results. One can only assume that said results will not be of a kind that will revive the company's stock price, which fell below its one-year low this last week. It will be interesting to see what the company comes up with as a way of distracting attention from these matters.

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Australia considers a free trade agreement

The United States and Australia recently negotiated a trade agreement which, like many US-driven agreements these days, requires Australia to follow America's lead on numerous intellectual property issues. In particular, the agreement forces the adoption of software patents and DMCA-like copyright laws. Needless to say, free software advocates have been concerned about this agreement; they have also been doing something about it.

On May 17, The Australian Senate Select Committee on the Free Trade Agreement between Australia and the US heard testimony on the effects that the agreement would have. The transcript is available as a 700KB PDF file. Included therein are several pages of testimony from kernel hacker Rusty Russell, representing Linux Australia.

Open source is particularly important to Australia because we are good at it. We develop it, we distribute it, and our expertise gives Australian business a competitive advantage over international competitors--not just IT business but all businesses that use IT. The Boston Consulting Group in a survey a few years ago found that eight per cent of open source developers are in Australia--hugely disproportionate to our population. We are in a prime position to take advantage of the growth opportunities provided by these projects especially the benefits of better, more open infrastructure that open source provides. On the other hand, the cost of chilling competition in this area will affect us greatly now and we will lament the loss of our lead in years to come.

Unfortunately, there is no picture of Rusty in his suit and tie.

Many other witnesses appeared, including representatives of Electronic Frontiers Australia, and the Australian Digital Alliance. Whether this testimony will have an effect on the eventual ratification of this treaty is to be seen; the fact that these issues were heard in this forum is a good start, however. (Thanks to Michael Neuling for the transcript pointer).

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European software patents get closer

Toward the end, it appeared that the European Council might not approve software patents after all. Representatives of the German and Italian governments had expressed reservations, and an objection from Luxembourg forced a discussion on what was supposed to be a fast-track vote. But, on May 18, the Council voted in favor of a patent directive which strips out the European Parliament's changes, and which thus legitimizes software patents in Europe.

Believe it or not, this lengthy process is still not complete, however. The directive must return to the Parliament one last time for final approval; this vote is likely to happen sometime in the (northern hemisphere) autumn. If the Parliament rejects the Council's draft, then some sort of compromise will be hammered out. Thus, it is not time for anti-patent activists to rest, even though they are likely to be tired and discouraged. Software patents in Europe are not yet a done deal, but heading them off will require efforts to educate members of Parliament in all EU member countries.

It is also worth remembering that elections to the Parliament are happening in June. Voter turnout in European Parliament elections tends to be low, so those who do vote have a relatively strong voice. If you are able to vote in these elections, you may want to consider learning the candidates' positions on software patents and voting accordingly. There is yet time to make a difference on this issue.

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Stupid patent tricks

May 19, 2004

By Pamela Jones, Editor of Groklaw

If you read about Microsoft's patent number 6,727,830, "Time based hardware button for application launch," issued on April 27, 2004, you're probably thinking that now you've heard everything. A patent on double-clicking and on holding down an application button? How can the Patent Office issue such a patent, since you can probably think of several instances of prior art off the top of your head?

Here is the abstract, explaining the patent:

A method and system are provided for extending the functionality of application buttons on a limited resource computing device. Alternative application functions are launched based on the length of time an application button is pressed. A default function for an application is launched if the button is pressed for a short, i.e., normal, period of time. An alternative function of the application is launched if the button is pressed for a long, (e.g., at least one second), period of time. Still another function can be launched if the application button is pressed multiple times within a short period of time, e.g., double click.

It drones on a while longer, but although they expend a great many words, what they have patented is simply this:

You have a device with a button. If you press the button quickly, you get different behavior than if you hold the button down. Electric typewriters have worked that way for decades, and portable CD players for many years.
Press the button twice in a short period, and you get different behavior. This, of course, is the "double click."

Linux systems are full of software which implements the claimed behavior. Double-clicking is found everywhere. The "hold the button for different behavior" can be found in places like the CD player. The patent specifies a "limited resource" computing device, so they are talking about PDA-type systems. The simple fact is that all computing devices are "limited resource," however.

I asked my right-hand man on Groklaw, Dr Stupid, if he could think of any prior art and he had no trouble in about 10 minutes coming up with these possibilities:

The general concept of short press and long press doing different things is not new at all - many embedded devices use it. What the patent is about is a particular use of this concept for launching programs on a device. That is, clicking once on the icon launches the program with one command line parameter, and a double-click a different command line parameter. Or a hold down is yet another.

The very old FVWM window manager for Linux has a 'maximize' button which works like this:

Click-and-hold: stretches the window vertically.
Single Click: stretches the window but does not cover the taskbar or button bar.
Double Click: stretches the window to cover the entire screen.

So you have normal action, hold-it-down action, and double-click action. It's still shipped with SuSE and most distributions to this day, I believe...

To me, it fails the 'not obvious' test. Another one that I wonder if it might be relevant is here:

'If you wish, you can distinguish single, double, and triple clicks. A double click means clicking a mouse button twice in approximately the same place. The first click generates an ordinary click event. The second click, if it comes soon enough, generates a double-click event instead....'

Microsoft listed 8 prior art documents, each slightly different from theirs. But then you find a long list of what they asserted was unique to this patent. But, without analyzing this one in great depth, certainly we can agree there are patents issued that should not be issued, and the real question is: why does the Patent Office issue them? And why do companies want them?

The answer to the first question is simple: they are understaffed and there is a general policy that you do your best and later the courts can determine if the patent was valid or not.

Why do companies want them? I asked that question of patent attorney Dan Ravicher, head of PubPat, the organization that is dedicated to going after patents that were wrongly issued, and also asked about this specific patent, and here is what he told me:

When I read those claims, I was like, sure, nice try. I doubt Microsoft would ever assert this patent. But, there is still value in building up a portfolio because many valuations are based purely on the objective factor of how many patents or how many claims one has, despite the fact that a wide swath of them are useless. The valuation experts aren't that sophisticated, yet.

A patent, in other words, is an intangible, and you look good to valuation experts if you have a big pile of them.

Does that mean there is no danger? Should something be done? He told me that until Microsoft begins to assert the patent, which so far it seems not to have done, the best thing is just to monitor it. "If Microsoft begins to assert this patent specifically, then we'll review the situation and make a decision about how best to protect the public," he says.

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