LWN: Comments on "Software patents no bigger threat to Free Software than to proprietary software"

Who are you calling Bignose?

xoddam — Fri, 20 Aug 2004 06:38:52 +0000

Where are you two from, Nose City?

Software patents no bigger threat to Free Software

bignose — Thu, 12 Aug 2004 09:10:32 +0000

> If you write software as a private individual and make it available for
> other people to copy, I don't think you can be sued. You aren't infringing,
> because you aren't using the patented invention for gain.

Non sequitur. Just because other people are invited to freely share my code, doesn't mean I'm not making money off it.

Software patents no bigger threat to Free Software

ironhacker — Mon, 09 Aug 2004 17:37:32 +0000

>"Software patents may be more of a threat to proprietary software."

I agree, but not for the reason that you state. Proprietary software faces the biggest patent risk because companies that directly profit from the code have money worth taking. People with minimal assets are not very attractive targets. Only a few companies will spend money on this type of pursuit. If that is not enough, I can think of a number of ways for OSS people to make themselves even more difficult targets. Besides, once the code is out "in the wild", good luck putting the genie back into the bottle (e.g. P2P, DeCSS).

Suing the users of the code is not any better -- ask SCO how well they are doing with Daimler Chrysler and Autozone. Statistically, end users face a more plausible threat from a BSA audit than a patent infringment lawsuit.

When I was 18 years old, I was shopping for car insurance. The minimum legal coverage was $40,000. Naturally, the insurance agent wanted me to buy even MORE insurance, despite the fact that the rates for 18-year-old drivers were exhorbitant to begin with.

The sales pitch: "If you had an accident and the damages exceeded $40,000, wouldn't you want to protect yourself from liability?".

My response: "I don't own anything of value, so having the minimum legal coverage is the ultimate protection. Nobody will sue me because there is no reward for winning. "

patents are a bigger threat to free software because we can't pay royalties

stomfi — Sat, 07 Aug 2004 04:25:45 +0000

If I have a new macro idea, which includes all sorts of other common
general usage ideas, and patent the macro idea, does this mean that
predators can patent any part of it? And what happens if the idea is
common to any kind of communication and interaction, including vocal face
to face and written. Will we see patents on say the idea of pen pals?
The biggest problem I see is how to have a world wide patent on anything
as a monopolistic predator could take out patents in all the countries
that one hasn't marketed a product to yet.

Software patents no bigger threat to Free Software

JoeBuck — Fri, 06 Aug 2004 22:34:17 +0000

No, the distributor of a free program can still be sued for damages (lost sales for the proprietary program put out by the patent owner).

patents are a bigger threat to free software because we can't pay royalties

JoeBuck — Fri, 06 Aug 2004 22:32:47 +0000

That's true of the new breed of "business method" patents, which never should have been allowed, but it isn't true of most patents, which are specific enough that it's often possible to come up with an alternative approach that doesn't hit the claims.

patents are a bigger threat to free software because we can't pay royalties

riel — Fri, 06 Aug 2004 17:36:44 +0000

Of course I can always rewrite the code so that it no longer infringes <insert favourite patent>

That is not true at all. Patents lock down concepts, not implementation. If somebody holds a patent on using a patent on "Selling things over a network using a server, client and payment processor, or using a client and a server" (EP803105 and EP738446), then it is impossible for anybody to avoid infringing the patent by rewriting the code...

For more details, see http://webshop.ffii.org/

Of course, pretty much every software patent is about patenting a concept, not an implementation. Saying that patents should cover specific implementations doesn't apply either, since implementations are already protected by copyright. Really, there is no argument for software patents (unless you're a patent lawyer).

Software patents no bigger threat to Free Software

NRArnot — Fri, 06 Aug 2004 12:31:28 +0000

Software patents may be more of a threat to proprietary software.

If you write software as a private individual and make it available for other people to copy, I don't think you can be sued. You aren't infringing, because you aren't using the patented invention for gain. Indeed, unless I'm misinformed, you are quite entitled to build a patented contraption (even working from the patent itself) for personal education or to satisfy curiosity. It's profiting from it that's infringement.

And the people that take copies? Well, if they are using your work for profit then they are infringing. But it's a lot harder to stamp on a zillion small infringers than on one outfit selling proprietary, infringing software for their own gain!

Obligatory disclaimer - I am not a lawyer (and what little I know pertains to the UK, it may not generalise to other countries).

patents are a bigger threat to free software because we can't pay royalties

hppnq — Fri, 06 Aug 2004 10:06:34 +0000

Well, that's the broken patent system for you. ;-)

Of course I can always rewrite the code so that it no longer infringes <insert favourite patent>. If that means my software does no longer offer its intended functionality, too bad: apparently I have reinvented the wheel. For instance, a patent regarding a device to capture small rodents does not cover the purpose of the device, which is to capture rodents. If I can find a way to capture rodents without using a device, I'm okay. If, however, the whole concept of capturing small rodents is patented, I've got a problem, yes. I'd go for the slightly bigger rodents then. ;-)

The biggest problem is this, I think: I can still be forced to pay up even if everyone involved agrees I was not aware of any infringement, and even if I rewrite the offending code.

patents are a bigger threat to free software because we can't pay royalties

talahin — Fri, 06 Aug 2004 08:31:26 +0000

This is what most pro-patent people want you to think.

Most software patents are not about the implementation (the actual code) which is allready covered by copyright, but about the functionality (the idea). So no matter how much you rewrite the code, if the functionality is the same, you are still infringing the patent.

compare it with a description of 'a device to capture small rodents' or 'a device for cleaning surfaces with the help of a low pressure chamber'

Gerrard

patents are a bigger threat to free software because we can't pay royalties

hppnq — Fri, 06 Aug 2004 07:51:04 +0000

So they would have to rewrite the offending code.

It's been repeatedly pointed out ...

mgh — Fri, 06 Aug 2004 00:05:07 +0000

I agree that this would be an issue that needs to be considered; free registration would be one way of helping with this because all visitors would be registered. If you don't want to know; don't register.

With regards to cross-licensing, yes, some will have such agreements, some will not. What we would gain would be information; it would show the scale of the problem and I believe, also show that:

a) patents on software are a huge problem for all sw developers regardless of licensing model
b) using proprietry software will not mean immunity from prosecution
c) the playing field between the free type licenses and others is somewhat more level than is being implied.

Opinion: sometimes groupings of people consider themselves to be somewhat insular. They don't play by the established rules... so they don't need to play by the estabilshed rules. Not true, the sooner the OS community takes responsibility for this issus the quicker it will dealt with.

The real strength of the OSS community is not in the software, its in the method of creating excellent results collabratively ... I believe that the OSS model will scale to other areas with good benefit including this one. OSS is a by product of the net and cheap/free communication much as we are doing here.

It's been repeatedly pointed out ...

AnswerGuy — Thu, 05 Aug 2004 23:47:50 +0000

... that such a database is more of a detriment to free software developers because it may offer support to claims of *willful* violation of the patent and result in trebled damages.

As for listing proprietary software, we can't ever be sure that a company doesn't have a private cross-licensing agreement so such a database would be of no value to free software developers, users, or vendors.

Jim

patents are a bigger threat to free software because we can't pay royalties

stevenj — Thu, 05 Aug 2004 23:23:43 +0000

A proprietary-software company sued for patent infringement has the option of biting the bullet and paying the license/royalty fee requested by the patent owner. A free-software company probably won't have that option, especially if the software in question is GPLed, because the patent license is unlikely to allow distribution of the software under free/open-source terms.

Software patents no bigger threat to Free Software

mgh — Thu, 05 Aug 2004 22:53:51 +0000

Would it be worthwhile to create an open database that lists software patents and then cross-references them with all software; Free and Proprietry? Could be useful to help separate rumour from fact and highlight the true extend of PTO restriction of innovation.

There are no valid arguments to the fact that Free software uses patented "technology". The real questions are "how much" and "when will it bite". Since there seems to be no "Free Patent" community, there is no portfolio to cross license and so there is vulnerability, although redhat have made moves in this direction.

The business rules that surround patent offices seem to allow patenting any idea not already patented (prior art searches against existing patents only). Patent offices appear to be government supported monopolies in the registration of ideas.

Can we create an alternative to PTO to register ideas worldwide or do we have to join to win and agressively register ideas with PTOs as prior art?
Mark