LWN: Comments on "LinuxCon: Keeping open source open"

LinuxCon: Keeping open source open

Wol — Sun, 04 Oct 2009 00:01:26 +0000

The rest of the world is fine with "first to file". It also works on the basis of "any disclosure before filing is prior art".

So if somebody else patents something I'm already doing, and I've made no secret of what I'm doing, their patent is dead. "Your patent is dated 1st October. Here's an article describing my process dated 30th September. Please Mr Judge, Prior Art, I can't be violating his patent. Summary judgement, please".

And that really would be that.

Cheers,
Wol

Patent numbers?

codepope — Wed, 30 Sep 2009 11:32:13 +0000

Sure, if I can publicise myself, Patently Opaque contains all 22 patents listed and comments from AST

LinuxCon: Keeping open source open

epa — Mon, 28 Sep 2009 14:34:32 +0000

Yes, Microsoft filed a suit against TomTom. What I have heard is that TomTom first threatened Microsoft with a lawsuit for infringing on some software patents that TomTom held, and then Microsoft's suit against TomTom was a response to that threat. (The first stage in a patent shakedown is often to formally 'notify' the other party that they are infringing; that way, if they don't settle immediately they will be liable for triple damages for knowing infringement.)

That might be how it happened, or it might not be. But the article doesn't tell you one way or the other. It just tells you which of the two cases was first to court, which isn't very informative.

LinuxCon: Keeping open source open

MattPerry — Mon, 28 Sep 2009 14:03:24 +0000

It says clearly in the first sentence that TomTom's filed a countersuit. A countersuit is a one that is filed in response to an initial suit. By definition that means that Microsoft sued first.

LinuxCon: Keeping open source open

epa — Mon, 28 Sep 2009 10:55:56 +0000

That Reuters article <http://www.reuters.com/article/technologyNews/idUSTRE52J1...> does not say one way or the other whether Microsoft threatened TomTom first, or whether TomTom started by threatening Microsoft with a software patent suit.

It just says 'The two companies had failed to reach a patent-licensing agreement after more than a year of talks.'

I would be interested to see some source that unambiguously states that Microsoft was the aggressor in this case, or on the other hand, one that unambiguously states that Microsoft sued only after being notified of software patent infringement by TomTom.

LinuxCon: Keeping open source open

dlang — Sun, 27 Sep 2009 23:28:00 +0000

the real fix for that problem is to consider multiple applications for the same invention to be proof that that invention isn't unobvious enough to those skilled in the field and deny all such applications.

LinuxCon: Keeping open source open

MattPerry — Sun, 27 Sep 2009 23:05:23 +0000

First to file would be truly terrible. Imagine being sued for infringing on a patent for technology you've invented just because someone else got to the patent office first.

LinuxCon: Keeping open source open

MattPerry — Sun, 27 Sep 2009 22:59:57 +0000

> I had thought that the suit against TomTom was a defensive suit, because
> TomTom first threatened Microsoft with a software patent lawsuit. The
> source is this Slashdot comment which admittedly is not the most reliable
> news source.

The parent comment to the one you linked to says otherwise and actually cites a source. Note that the comment you linked to provides nothing to back up their claim.

LinuxCon: Keeping open source open

kleptog — Sun, 27 Sep 2009 14:03:23 +0000

Indeed, I was wondering how they were going to deal with that. Someone could just go to that site, copy every idea and submit a patent application claiming they did it first.

I thought there was some progress is getting the US onto a first to file system, but apparently it hasn't gone anywhere.

LinuxCon: Keeping open source open

lysse — Sat, 26 Sep 2009 21:19:44 +0000

> You can't fairly claim to be the only one making sarcastic comments

I didn't even claim to be making sarcastic comments. I didn't reply to your mention of sarcasm.

I am amused at the concept of your passing judgement on a thread you have demonstrated an incapacity to even follow. Amused enough to have gone back, temporarily, on my previous decision to ignore you.

And it's not even a long thread! *sigh*

LinuxCon: Keeping open source open

felixfix — Sat, 26 Sep 2009 05:38:40 +0000

Oh please. This thread has gone way off topic. LWN is not the place for political discussions. You can't fairly claim to be the only one making sarcastic comments when you don't even recognize it yourself.

LinuxCon: Keeping open source open

lysse — Sat, 26 Sep 2009 04:40:13 +0000

Wow. My point just went right over your head, didn't it?

LinuxCon: Keeping open source open

felixfix — Fri, 25 Sep 2009 13:41:35 +0000

Your sarcasm is a welcome relief. I am glad someone here injected some levity into this way off-topic thread.

LinuxCon: Keeping open source open

giraffedata — Fri, 25 Sep 2009 08:33:23 +0000

sometimes -- often -- lobbyists like to write laws so that they can get special advantages or privileges from those laws.

You have to go further than that, because a lobbyist can only draft the law. For it to take effect, he has not only to get someone else to sponsor it, but often hundreds of other people to vote for it. So you have to be way more cynical and propose that all the legislators somehow get special benefits -- bribes, I guess -- at the expense of society. And assuming you don't believe you and your friends are so immoral, you have to believe that legislators are cut from a different cloth from the rest of us, and if legislators are elected, that requires even more cynicism because it means the evil bastards somehow fool millions of people, generation after generation, into not recognizing them for the thieves that they are.

Imaginary market

man_ls — Fri, 25 Sep 2009 06:33:35 +0000

Not a very convincing argument IMHO. Imaginary markets are all around us: from stock markets to securities to currency exchanges to brands to actual, down-to-Earth patents. All existing only because they are enforced by our governments. If we were to do away with them we would be left with gold, coffee and real estate markets -- and even then most of the raw material that changes hands nowadays is never seen either by the buyer or the seller.

Better center on the consequences (perceived and actual) of this particular imaginary market.

LinuxCon: Keeping open source open

nix — Fri, 25 Sep 2009 06:29:49 +0000

Ah, the innocence. It's so sweet.

(Hint: sometimes -- often -- lobbyists like to write laws so that they can
get special advantages or privileges from those laws. That's pretty much
where the word privilege originated.)

LinuxCon: Keeping open source open

giraffedata — Fri, 25 Sep 2009 00:03:26 +0000

I believe government officials usually pass laws for social good, following their honest opinion of what is best for society. Narrow minded people who have a different opinion like to ascribe the difference to evilness on the other guy's part.

I also believe that what the highest bidder wants is usually for the social good. That's because the highest bidder got the money for the bid from society, which gave it to the bidder voluntarily in exchange for what the bidder gives them.

Lobbyists do write legislation, which is then signed by legislators, and there's nothing suspicious about that. It doesn't imply the legislator sponsored the legislation for any reason other than that he personally believes every word of it is best for society. It does mean that the cost of creating legislation is being borne by the segments of society that benefit from it the most.

Imaginary market

rwmj — Thu, 24 Sep 2009 21:49:33 +0000

It's just worth noting that this is an entirely imaginary market, in imaginary property, enforced because our [Western] governments enforce it.

It's not real, and by voting against it, we can get rid of it entirely... It will disappear in a puff of imaginary smoke.

Rich.

No angle on the European situation?

rahulsundaram — Thu, 24 Sep 2009 19:32:42 +0000

It's more than just the kernel. OIN has a list of software

http://www.openinventionnetwork.com/pat_linuxdefpop.html

LinuxCon: Keeping open source open

felixfix — Thu, 24 Sep 2009 17:19:04 +0000

It is easy and lazy to cherry pick single examples, or to assume "social good" and "highest bidder" are mutually exclusive.

LinuxCon: Keeping open source open

NAR — Thu, 24 Sep 2009 16:54:47 +0000

I seem to remember that about a decade ago the Hungarian Parliament discussed an act about telecommunication (I believe it was the LXV. act from 1997). Totally different parties happened to submit the same text, which also seemed to come from various telecommunication companies. This act seems to fit the laws passed in keen pursuit of "highest bidder". By the way, this act is mostly about the interworking of the communication (e.g. mobile telephone) networks.

On the other hand the XXV. act from 1920 was clearly made for the "social good". It essentially created an upper limit for the number or Jewish students at various universities.

I'm a lot more suspicious of people who're "working for the social good" than those those who're simply selfish.

LinuxCon: Keeping open source open

jhhaller — Thu, 24 Sep 2009 15:57:24 +0000

TomTom and Microsoft are likely to conflict over Sync by Microsoft in Ford vehicles. Since TomTom predates Sync, TomTom likely has earlier and broader patents. That doesn't say who started the dispute first, but where interests collided.

LinuxCon: Keeping open source open

epa — Thu, 24 Sep 2009 15:33:00 +0000

I didn't see anything in that Groklaw article saying that Microsoft's lawsuit wasn't in response to a patent threat from TomTom. (Not that it is Groklaw's job to refute every random theory floating around, but I don't see how the article you linked to is relevant here.)

You are most likely right about TomTom as a company; I knew they had fought Garmin in court but it appears that was defensive (see here for example).

LinuxCon: Keeping open source open

wookey — Thu, 24 Sep 2009 14:39:46 +0000

That coment is the only thing I've seen suggesting that Tomtom fired first. I find it very hard to believe (having contracted once for TomTom a few years ago and found them a very sound outfit, with really good technical people still at board level). Groklaw seems more likely to be right than random slashdot comments:
http://web.archive.org/web/20191122003333/http://www.groklaw.net/article.php?story=20090320000835463

No angle on the European situation?

ber — Thu, 24 Sep 2009 12:33:33 +0000

What about software-patents in other parts of the world? What about the possible effects on GNU/Linux? The US-situation seems to be a heavy disadvantage especially for people there.

Helping to invalidate patents is helping the pro-patent lobby in my view. One main argument for patent is that they would be harmless if it wasn't for the bad, trivial patents. This holds on to the idea that just evaluation of patent applications needs fixing - not the system itself.

BTW: It would be really interesting to make the distinction between Linux (the famous kernel) and operating systems based on it and their components. Does OIN also protect the other Free Software components within a operating system, e.g. the C-library or is it only about the kernel?

LinuxCon: Keeping open source open

epa — Thu, 24 Sep 2009 10:48:38 +0000

I had thought that the suit against TomTom was a defensive suit, because TomTom first threatened Microsoft with a software patent lawsuit. The source is this Slashdot comment which admittedly is not the most reliable news source. But it would have been better for the article to address this, whether confirming or denying it.

In my opinion, countersuing someone who sues (or threatens to sue) over a software patent is quite a different matter from aggressively using swpats against another company which has not fired first. Which of the two cases describes the TomTom VFAT settlement?

LinuxCon: Keeping open source open

k3ninho — Thu, 24 Sep 2009 08:27:17 +0000

>Defensive publications are another strategy that companies can take to protect their ideas without patenting them. OIN is advocating the use of defensive publication to create prior art, so that, in the best case, patents will not be granted covering those ideas. Instead of the "negative right" that is created with a patent, defensive publication creates something that everyone can use, but no one can patent. OIN's lawyers will review defensive publication submissions for free, making any necessary changes and then adding them to the IP.com database which is used for prior art searches by the PTO.

You still need to lobby for change in U.S. Patent Law on this: despite the defensive publication there is still a year-long grace period in which another party may have come up with the thing before applying for a patent for the method you've made publicly available.

Take it from here

man_ls — Thu, 24 Sep 2009 06:28:15 +0000

You can always start with "lobbying".

LinuxCon: Keeping open source open

felixfix — Thu, 24 Sep 2009 05:08:34 +0000

Have you *seen* some of the laws passed in keen pursuit of "highest bidder"...?

LinuxCon: Keeping open source open

lysse — Thu, 24 Sep 2009 04:02:47 +0000

So, there's no way then.

LinuxCon: Keeping open source open

lysse — Thu, 24 Sep 2009 04:01:14 +0000

Have you *seen* some of the laws passed in keen pursuit of "social good"...?

LinuxCon: Keeping open source open

pabs — Thu, 24 Sep 2009 02:54:59 +0000

Same as always. Lobbying, civil disobedience, armed resistance, terrorism, civil war or starting society from scratch after a global disaster like nuclear war/meteor impact.

LinuxCon: Keeping open source open

seanMcGrath — Thu, 24 Sep 2009 02:23:15 +0000

It is a political problem. Until law makers serve the social good instead of
highest bidder, bad laws will continue to be passed.

LinuxCon: Keeping open source open

lysse — Thu, 24 Sep 2009 01:08:25 +0000

One thought which occurs to me more and more strongly as time goes by: Given that all of these things - patents, onerous copyright laws, the DMCA, intrusions into people's privacy, etc - are considerably more difficult to roll back than they are to introduce, especially once enough people have enough invested... are we approaching a point at which humanity has backed itself into so many corners that it can't legally do anything at all? And if so, how do we extricate ourselves from under the weight of law, without sacrificing the rule of law?

The problem with OIN

JoeBuck — Thu, 24 Sep 2009 01:06:04 +0000

Most of the principal OIN members are big believers in software patents, have strong software patent portfolios, and want to extend patents everywhere (Red Hat's an exception). They have an interest in protecting Linux, but they also have an interest in growing their software patent positions.

Patent numbers?

brouhaha — Thu, 24 Sep 2009 00:33:40 +0000

Are the actual patent numbers available anywhere? It would be nice to see the details of what is covered.

LinuxCon: Keeping open source open

ncm — Wed, 23 Sep 2009 16:55:11 +0000

This is enlightening, another reminder of why we subscribe to LWN. Until now MS's behavior in connection with these patents was a mystery, but now it all makes sense: yes, it really was an attack. We have strategic thinkers acting strategically on our behalf, and it feels good. Next time MS attacks, though, I suppose they will be less ham-handed about it.