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November 19, 2005

Patent Penguin Exposed

Some of those who care about open source are decrying the charade of touting patent protection for Linux via measly cast-off patent pledges from corporations like IBM. As Florian Mueller, founder of the NoSoftwarePatents campaign that successfully opposed a European patent bill earlier this year, ineloquently put it, "those announcements by the OIN and the OSDL grossly overstate the effectiveness of those partially ill-conceived approaches. By misleading people they don't put us any closer to a real solution, but even further away from one."

Mueller expressed wariness. "There's an awful lot of dishonesty in these all-too-obvious attempts to curry favor with the community and reassure customers. Some make it sound like these pools are a bulletproof vest for open source, but it's more like you have a coin in your pocket and hope that a bullet will be deflected by it. Too bad the coin isn't even in a place where someone would usually shoot you."

Mueller mentioned some of the IBM donated patents are irrelevant, worthless, and may not be renewed. Some pledges are hedges, with loopholes that allow an infringer to be sued. Patent pledges typically are specific, so offer no general protection.

Richard Stallman has likened these software patent pledges for open source to mines in a park: If there are 90,000 mines in the park instead of 100,000, it's still far from being a safe place to walk.

Mueller explained that strategically, the puny portfolio of patent pledges has no real counterclaim potential, so does not even act as a defensive weapon.

OSDL chief executive Stuart Cohen was delusional in stating earlier this week that the the threat facing Linux from software patent infringement has receded. Cohen said straight-faced that developers can use pledged patents to avert legal problems, as they will not be sued if they write code that infringed any of the patents within OSDL's Patent Commons.

What isn't being discussed is the issue of innovation by open source developers. Why haven't open source coders developed more of their own patentable technologies, a home-grown patent portfolio? Logically, open source, with its potential for collaboration, should be fertile ground to push technology forward. But if patents are against their religion, they suffer the irony of being software luddites, seeming copycats in denial of reality, with no genuine coin of the realm.

Here's early bird Patent Hawk on OIN and OSDL patent pledges.

Posted by Patent Hawk at November 19, 2005 3:59 PM | Patents In Business


Why haven't open source coders developed more of their own patentable technologies?

That's a ridiculous question. Why would they? And more importantly, how would they? If an open source developer (alone, or with a small team) devotes 1000s of man-hours, in their spare time, to their art because they love doing it, then give the result of that labor away FOR FREE, you expect them to also become lawyers and spend thousands of dollars taking out patents? I think you must have a very vested interest in this patent tax. This is insane.

I imagine that you also think painters should patent the concepts embodied in their artwork? Poets should patent the poetic devices in their poems? Fiction writers their plots? Can you imagine a world that operated this way? What an incredible dearth of works we would have! That every person who wanted to participate in works of creation needed to get multiple licenses from multiple holding companies that owned all the ideas?

You've gone off the deep end, my friend.

Posted by: StrikerMan at November 21, 2005 3:20 PM

As a hobbyist creation, Linux is a wonder. As a business product, it pales by comparison. The real problem is that businesses want to treat Linux as a business product, and the hobbyists want respect accorded as such, but don’t seem willing to accept the disciplines involved in creating & managing a software business. If open-source coders are just hobbyists tinkering away, then leave it at that. Once those hobbyists have their software bundled together and sold, it becomes a business. The game changes. If Linux is going to be a business, it needs to run like a business. In today’s world, successfully running a software business necessarily involves patents. If you don’t want to play the game, don’t. Just don’t confuse the two: innocently tinker, or be in business. As an erstwhile software developer, I know that the last 10% of creating a polished software product takes 90% of the time. Maybe that’s why Linux is unpolished - the people creating it are just puttering in their free time.

Posted by: Gary Odom at November 22, 2005 12:29 PM

I guess I need to remind you that email, the web browser, and the web server were all created by 'tinkerers', toiling away for the sake of hobby, science, and art. If our current patent environment had existed when they were created, it is likely that they *never would have* been created; the encumberment would simply have been too great, the cost too high. This is particularly true of the collection of technologies we call "the Internet" -- if left to business, we'd have a really lovely Compuserve of AOL closed network, and everything would still look pretty much like it did in 1989 (if you are CompuServe, of course, that sounds pretty nice. But for the rest of us, it sounds like major suckitude).

I'm sorry you have a chip on your shoulder against Linux and open source. But for the sake of humoring your obvious bias against those technologies, let's go ahead and ignore them. What about all your Windows shareware/freeware authors? What about winzip/pkzip? What about old winamp (gone but not forgotten)? I could go on and on. The question is, should we exclude these developers and these products just because they weren't thought up and funded inside of Microsoft, Apple, Sun, HP, IBM, etc.? Do you really feel that there is no place in the software ecosystem for the lone inventor? You are saying that every one of these guys should be spending the $5-20K (times the number of distinct inventions in a single program) for patent rights, and then amass the $1-2 million in a war chest that is needed for successful patent litigation (either offensively or defensively)? What you are defending is not only insane, its indefensible.

If we continue like this, software development *will* move offshore, just as it did for encryption software when we put a different type of government restriction (export control) on it domestically.

One more thing: you seem to imply that "innocent tinkerers" are immune from patent infringement. We both know they are not. There is no exclusion in US patent law for tinkering, academic research, or non-profit use. Even the most obscure of erstwhile software developers can be threatened with cease-and-desist letters from aggressive holders of dubious software patents. Such are sent every day. The number of products we now *don't have* because of patents is large.

I don't know what kind of readership you have here, but it must not be too large; otherwise you would have been already exposed to arguments that you seem to have no answer to, other than "I don't like Linux, therefore patent law is good!"

Posted by: StrikerMan at November 22, 2005 1:15 PM