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[eric_stasik]

Patents pose equal danger to all classes of software and in some cases the free and open source genre may have less to fear, the senior counsel of the Free Software Foundation says.

"Further, the equities and public harm would very rarely be in favour of the patent holder, because free software is a public good on which many individuals, businesses and government rely," he said.

Questions - Should the "equities and public harm" outweigh the rights of inventors? Does not the public suffer more harm when inventors rights are sacrificed to the commons?  

http://www.smh.com.au/news/Breaking/Patents-pose-equal-threat-to-all-software/2004/11/04/1099362275074.html?oneclick=true

[clarklawyer]

Fortunately, Stallman's premise is wrong making the question
of inventor's rights versus the public good moot.

But if he were correct that as a general rule, patents on
software harmed society more than helped, then IMO the Constitution
would not support awarding them.

An inventor's right to get and enforce a patent are always
subject to the sovereign's whim.

But I don't agree that in the general case software patents
harm the public.  Maybe in some individual cases there is a
net positive effect, but we should not throw away the system to
fix the minority of cases.

[eric_stasik]

Mr. Clark,

I should have noted in my post that the comments are from Dan Ravicher of the Public Patent Foundation, which I believe is connected to the OSDL.

From the USPTO's database:

Ravicher, Daniel
Public Patent Foundation
1375 Broadway, Suite 600
New York NY US 10018
212-545-5337
47015
Attorney

It is understandable that you would attribute them to Mr. Stallman.

What Mr. Ravicher seems to be suggesting is that the courts may be reluctant to enforce software patents against free and open source software - which in my opinion would amount to a biased application of patent law.

In other words, if the infringer is Microsoft then the courts would enforce the patent, but if the infringer is Red Hat the courts would not.

At best this is wishful thinking on his part; at worst it is deliberately misleading. As he is a registered patent attorney ignorance cannot be a legtimate excuse.

Regards,

eric stasik

[clarklawyer]

I noticed that the article referred to the FSF's attorney and
erroneously attributed the Ravicher's statement to Stallman.

Mr. Ravicher seems to be saying that an even application of the
law to open source is likely to have a different result.  I don't
agree with his analysis or his conclusion, but the fact that
the defendant matters is not a radical notion.  For example when
deciding whether to grant a preliminary injunction the court will
evaluate whether awarding money damages later would be
enough to make the plaintiff whole.  If the defendant has no
money, then that's going to weigh against the defendant.  A well
heeled defendant may face larger punitive liability than a poor one.
In any event, after reading the article I saw a couple of pretty
goofy statements of law.  Ordinarily I would assume that the
media misquoted or oversimplified.  But this wouldn't be the
first time an FSF lawyer presented what seems to me a poorly thought
out legal theory.

[JimIvey]

If you take out all the sentences premised on "would be," "could be," and "likely," all that's left is that some guy from FSF visited Austalia -- that's it.

For what it's worth, I'm fairly sympathetic to the free software croud.  After batting the issue around for a while, I think I understand what they're after and how they're approaching it.  However, I don't think free software (free as in speech, not as in beer -- as they're fond of saying) can peacefully coexist with patents.  And, I don't know how to reconcile the situation.

Regards.

[eric_stasik]

Mr. Ivey,

Don't fall for the rhetoric - it's not about free speech it's about free beer.

Professor Ronald J. Mann of the University of Texas Law School recently wrote:

“The problem, however, is that the open-source community does not exist in a vacuum. It exists in a world in which the commercial software industry is building up large portfolios of protected IP, portfolios that pose a serious threat to the open-source community…. The problem is that the open-source community has set itself outside of the cooperative IP framework of the mainstream software industry. Thus, its members have no patents of their own with which they might protect themselves in ... litigation. At the same time, it has developed its software with the same cavalier attitude to the possibility of patent infringement as commercial software firms exemplify. Those two habits cannot coexist in the long run."

Mann, Ronald J. 2004. “The Myth of the Software Patent Thicket” (unpublished draft circulated on the Internet)

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=510103#PaperDownload

The F/OSS solution is to abolish patents on software and create a technology "commons."  

The problem with this solution is twofold:

1) it is a denial of reality as software patents exist.  

2) it imposes on software the same outdated economic theories that failed so miserably when applied to tangible property.

There are ways in which F/OSS and software patents can co-exist, but this first requires a rejection of the anti-capitalistic solutions that so many F/OSS supporters advocate.

Look for my soon to be published book "Free Software, Free Culture, and Free Beer: The Struggle to Patent Computer Software and the Defense of Private Property Rights in the Digital Age" for a discussion of these issues.

I am writing the final chapters and I hope to be done by the end of the year.

Regards,

eric stasik

[JimIvey]

Don't fall for the rhetoric - it's not about free speech it's about free beer.

I'll have to respectfully disagree with that one.  Having been a software developer (now called a software engineer) and knowing many people in the industry, both in the commercial and OSS (open source software) spaces, I can say quite certainly that the OSS movement is about freedom in the speech sense.  Jeez, just read an OS license -- it reads more like a political manifest rather than an IP license.

From the end users perspective, it may be very much about free beer.  But the developer (to the extent you can lump them together in one description) thinks more or less like this:  

"If I want to spend my nights and weekends writing a better FTP server than currently exists and distribute it for free, why can't I?  Of course, I'll only do that if I can make sure that no company takes it, owns it, and controls its distribution for money [the "free as in speech" part].  I'll make it available for free [as in beer] so that the world will benefit from having a better FTP server.  As long as I do all the work myself and don't use the work of others, I should be able to do this."

That thought may seem a bit arrogant to think their work will make the world a better place, but I remember how it felt the first time I realized many people, hundreds (even thousands) of miles away were using my work.  It was a powerful feeling for a young person, even if my work only made a very small change in the lives of others as long as the change was a positive one.  It makes you want to do more work and have more people benefit from it.  (Incidentally, I get the same rush when I see a company list my work as some of their major assets.)

My understanding is that the biggest complaint the OSS community has with patents is the lack of an independent creation defense (on which the weekend code warriors like to rely).

As much as I make my living writing software patents (among other types), I have to admit that the OSS community has proved one major assumption of the patent system to be wrong -- that is that significant inducement is needed to convince people to bring good and valuable innovation to benefit the general public.  The OSS community is one huge and glaring exception to that assumption -- although I believe the assumption to be generally true.

So, I wouldn't impugn the motives of the OSS community without a fairly thorough investigation of why individuals in the community do what they do.  I'm not saying that "free beer" has no place in OSS, just that it's clearly wrong to suggest that there's no "free speech" in the motives of the OSS community.

I'll take a look at the book when it comes out.

Regards.

[clarklawyer]

Well said Mr. Ivey.

I agree with most of your remarks.  I remember having the same
feeling when I wrote programs and gave them to my buddies and
coworkers for free.  I also remember the first time I realized that I had likely
infringed a software patent with work done on my home computer.
Let me particularly agree with your statement that not all open
source developers being the same.  I remember reading and
participating in usenet flamewars betwen GPL advocates (who
actually have a manifesto in addition to their license) and
BSD advocates.  The GPL advocates were more of the type you describe.
The BSD advocates didn't cared if commercial interests
exploited their work as long as they were given credit for their
creations.

What they had in common was the desire to write program sometimes in
their basement and sometimes with their peers that they could
share.  It was a solution that worked well as long as software
patents were either non existent or an anomaly because for the
most part copyright allowed them to do what they wanted including
writing replacements for works that could not be shared.

I guess it's about the money to the extent that you cannot
write software in you basement and give it away if you have
to file for patents and pay royalties to others in order to
work in your garage.

I'm looking forward to Mr. Stasik's book too.

[eric_stasik]

Mr. Ivey, Mr. Clark,

Your comments reflect the challenge I have in front of me.

When IP attorneys find themselves agreeing that software patents are "bad," it will be an uphill struggle to convince software developers that they are not.

The essential difference between software patetnts, and say patents on radio circuits, is that very few individuals are building radio circuits in their garage. As software development requires nothing more than a PC and a lot of uninterrupted time, nearly anyone can do it.

This brings patent law into the realm of the individual whereas previously only corporations were affected/influenced by it. The tension therefore is not one of simply how to best promote innovation, but rather also how to preserve civil rights.

As a committed civil ilbertarian, it is  my paramont concern that a proper balance be found.

Independent creation - as is found in copyright - is not necessarily a solution because this only works where independent creation rarely occurs - as is the case in copyright.

Creating a fair use doctrine is neither a solution because as we have seen with P2P, fair use only invites widespread piracy. The spectre of multi-nationals suing individuals for copyright infringement is a pernicious affront to civil liberties, yet what are copyright owners to do?

These are complex issues. Winston Churchill said of Andrew Jackson that, "His simple mind, suspicious of his opponents, made him open to influence by more partisan and self-seeking politicians."

Because these are complex issues, far beyond the interests of most software developers, the legitimate concerns of the F/OSS crowd are being influenced by others, like the European Green Party and Richard Stallman, with an anti-capitalist "free beer" agenda.  This as Mr. Ivey observed is the reason that OSS licenses look more like political manifestos instead of commercial licenses.

Nor are my own views unbiased, but one cannot point to the success of F/OSS and ignore the success of Microsoft, or Google. Similarly, one cannot say that the success of the Internet is due to the lack of patents on TCP/IP, while ignoring the success of GSM - a heavily patented protocol with 1 billion users.

Presently the arguments against software patents ignore these commercial realitiies.

Moreover, something is terribly wrong when the F/OSS crowd sees Microsoft as a devil and IBM as a saviour. For software developers, this is a road that can only lead to exploitation. My late grandfather's AFL-CIO union book burns with outrage in my wallet at the prospect. I have little doubt that IBM, HP, and other coporate interests are using the F/OSS movement as US Steel tried to use the working men of my grandfather's generation.

A balance must be found between competing methods of development.  I am of the opinion that no software patents would be as damaging to innovation and worker's rights as the blanket imposition of them.

I do not pretend to know the answers. but I do think I understand the problem and that is the object of my book - to lay this out as clearly as possible so that other people more learned than myself can properly debate the issue and arrive at a balanced solution.

Regards,

eric stasik

[clarklawyer]

I did not say that software patents were bad, and I don't think that Mr. Ivey did either.

I agreed that software patents can have unfortunate consequences for free software authors.   I also disagreed with you about the motives of authors of free software.

While I sympathize with their plight, I did not suggest any solution to the problems facing free software proponents, and in particular I did not suggest that the solution was to get rid of software patents.

[JimIvey]

As Mr. Clark pointed out, I never intended to suggest that software patents are "bad."  The problem I have with such a characterization is that I don't believe patents can be effectively and meaningfully characterized as "software" patents.  I've done work for graphics software companies and graphics hardware companies and I don't approach either situation any differently than the other.  I see hardware and software as interchangeable.  Much of what you seen done in current graphics hardware used to all be done in software.  So, eliminating software patents would necessarily also eliminate a substantial chunk of electronic hardware patents.

I'm generally opposed to carving out inevitably arbitrary technology designations as exceptions to patent law.  As I've said in these forums before, patent law is complex enough without having an elaborate if-then-else tree with special side rules.

I also don't see any reasons to separate software from other inevitably arbitrary technology designations.  All of the arguments I've heard lobbied against software patents are applicable to all patents.  I see the current debate as just a prolonged debate about the public benefit of patents altogether.  And that debate will continue for some time.  But I find none of those arguments persuasive in carving out "software" as an exception to the rest of patent law.

All I said is that I understand the complaints of the OSS community and that I don't have a satisfactory solution.  I also mentioned that a fundamental assumption of patent policy has been effectively challenged and proved wrong by the OSS community.  I see no reason to limit the challenge to assumption to the software technical arts -- it could apply to non-software technologies as well.

Here's some food for thought.  Since we're in the tail end of the information revolution, and each revolution obliterates what went before (much like the industrial revolution obliterated aggriculture as the main employer), we may be seeing the end of capitalism (in the sense of needing huge amounts of capital to enjoy economies of scale and to compete successfully).  Instead, we may be witnessing the birth of a new era in which capital just isn't needed.  Look at Dell -- they produce your custom computer *after* you pay for it.  They pay for the parts up to 60 days later.  They don't need capital.  They're truly "on-demand."

In a world like that, you have to ask yourself if patents are still needed.  The assumption of patents is that people need to collect/spend tons of money to bring a new idea to market.  What if people don't need that anymore?  Are patents still justified?

I don't mean to suggest an answer.  The answer may very well be "yes", but I'm by no means certain of that.  You're seeing the first wave of struggle over that point right now with the OSS community.

As the ancient Chinese toast (for people you may not like much) says: "May you live in interesting times."

Regards.

[eric_stasik]

Mr. Clark, Mr. Ivey,

I did not intend to misrepresent your views by using the shorthand adjective "bad" when referring to software patents. (I note that I also used the quotation marks in my original comment to indicate that it was not intended to be taken literally.)

After reading both of your responses, however, I am more confused than before about what your views really are.

What I wanted to point out is that there are many people who want to abolish patents on software for political reasons and that it is these people who are dominating (and clouding) the debate over this issue.

Mr. Ivey, I disagree we are at the "tail-end" of the information age. We're not even at the end of the industrial age. To further quote Mr. Churchill: ”This is not the end, it is not even the beginning of the end, but it is the end of the beginning”.

While Dell may have solved the problem of inventory, capital is a far broader concept than shelves of hard disk drives. Dell's business model still requires enormous sums of money in order to accumulate even larger sums - which of course remains their raison d'être

In the most basic sense, capital is money; in the broadest sense it is property.  

Capitalism - property based economics - is not going anywhere.

Your comment that OSS community has proven wrong the fundamental assumption of patent policy seems to me completely without basis.

If anything OSS proves that proprietary software developers need greater protections from those who would create derivative works that undermine their business model and deprive them of their hard won capital.

Moreover Open Source is by and large an ephemeral development model resulting from the legacy of DOS based computers. Frankly once INTEL starts hardwiring Windows and IE into its microprocessors Linux and Mozilla are moribund.  

OSS has shown that there are many people willing to devote their time to software development, but I suspect that very few of these people would provide the resources - and capital - necessary to develop and market their own microprocessors on which to run OSS software. Software without hardware is nothing but good intentions.

The irony is that Linux only exists because Microsoft created a huge market for the microprocessors on which it runs.

The same may be said for "the internets" as a whole. Without the enormous base of PCs running Windows, TCP/IP, HTTP, and the WWW would still be obscure tools used only by government researchers.

While these statements may appear critical of F/OSS, I am by no means an opponent of the OSS model, but neither do I see it as something to supplant and overthrow property based (capitalistic) economies which remain the PRIMARY engine of innovation and progress and the best protectors of the rights and liberties of individuals.

Thus my belief that software patents - patents on intangible inventions - are the sine qua non of the information age.

As for Chinese curses, the Turkish "evil eye" I have hanging in my doorway is stronger medicine. (Knock on wood.)

Regards,

eric stasik

[Lwarcok]

Interesting points of view from all of you gentleman. .

As for me, I dont see the problem about software related patents, if  you are a single coder who happened to code some program that could improve someone's life and you want to to give it for free, that piece of code can be used as a jump start for another development that someone else (company or not) could make a profit and even file an application about it. Of course they can not file an appliaction absorving the already freely given piece of code, since that will be prior art, and a patent would (should) not be granted if such piece of code is included in the scope of the invention.

Now, if you happen to code some program that again makes life a bit more easy for every one else, and you DO want to earn some money out of it and you file a patent application in order to seek the exclusivity for using, selling, and so from that patent, you would (should) be glad that software related inventions can be patented.

(IMHO) I think the problem about Open Source and Software Patents is that (obviously) big software corporations DO have the resourses to file a patent appliaction for every 4 or 5 lines of code their personnel creates, while an independent coder does not have the same resourses for filing an application for every program he/she writes.

On the other hand, the bigger problem I DO think is that Patente Offices  (all over the world) are granting software related patents doe to the lack of knowledge about software it self, and the resourses to gather prior art information (I think its linkled with the lack if  knowledge, you can have all the information in the world available at the tip of your nose but if you dont know what you are looking for it might as well be as there is no information available at all).

One other mayor point that I see (not only related to software but as for any technology envolved) is that if  a specific patent does not allow you to use html code since its protected by a patent and you know that html code has been used long before the application was even filed, but the patent was granted due to the lack of knoledge of the examiner. You need to have a lot of resources (money, people, more money and more people) to demonstrate that such patent was wrongly granted.

I hope I didnt offended anyone with my point of view, although I whould love to hear what they think of it .

PS: tried to contact the forum admin so he can drop some other usernames and emails I used to reg into this forum but I got no response so far.

[eric_stasik]

Dear Mr. Warcok,

Your points are well-taken, but there is a differnce between "bad" software patents and the conclusion that all software patents are bad.

Over the last 40 years the number of patents granted annually by the USPTO has risen fourfold - and more than doubled in just the past decade. Currently there is a backlog of almost one half million pending applications, or more than 75 pending applications for every one of the USPTO’s nearly 6500 employees – of which less than half are examiners. In the software arts the problem is even worse.

With this sort of pressure, there will be mistakes. The USPTO is after all a government agency with all the limitations of a bureaucracy. It is unreasonable to expect that the USPTO, EPO, SIPO, or any other patent office will be 100% perfect all the time.

But the truth seems to be that the opponents of software patents want us to believe that the USPTO (EPO, SIPO, etc.) will never be competent to issue patents on software - and that all software patents are trivial - which is a denial of reality worthy of GOP voters.

For every "compton multimedia" patent there are hundreds of software patents properly and competently issued by the USPTO. The Unisys Lempel-Ziv-Welch (LZW) patent on data compression is one such example.

Along with Huffman coding, LZW is one of the world's seminal data compression techniques. It is by no means trivial, or obvious, and the patent issued by the USPTO was competently and correctly issued to its inventors.

Some programmers working for Compuserve decided to use LZW in the GIF image compression format. When Unisys began enforcing their patent against GIF infringers, the Open Source community was outraged. The GIF license was incompatible with the GNU-GPL. The LZW was one of the patents which caused Open Source programmers to begin their crusade against software patents. It was not a "bad" patent.

Patents and the GNU-GPL are incompatible. Unwilling to compromise on their "free beer" manifesto, the Open Source community decided that patents - and not their development model - would have to give.

In short, this is how we arrived at where we are today.

Everyone is against "bad" patents. There is no controversy that the USPTO, EPO, SIPO, etc. should not issue patents on applications which are not new, novel, and non-obvious. My basic argument is that if everyone would work to fix the problems at the USPTO, instead of criticizing and ridiculing them for the few mistakes which are made, we would all be better off.

Open Source is no doubt a useful development model, but not one that can - or will - supplant proprietary development.

It is the Open Source community that must find a way to co-exist with software patents. The rest of the world should not have to compromise in order to co-exist with Open Source.

And that, in a nutshell, is the argument I am will make in my (hopefully) forthcoming book.

Regards,

eric stasik

[JimIvey]

Mr. Ivey, I disagree we are at the "tail-end" of the information age. We're not even at the end of the industrial age. To further quote Mr. Churchill: ”This is not the end, it is not even the beginning of the end, but it is the end of the beginning”.

Just to be clear, that wasn't my personal opinion.  That's the opinion of some leading economists.  Each revolution has about 4-5 cycles of boom, bust, and dig-out.  I forget exactly what the specific cycles were for the Industrial Revolution, but they were identified and had happened a long time ago (one was the railroad, another was aviation, etc.) .

As for the Information Revolution, the economists named 4 such cycles, but I can only remember 3: electronics of the 1960s, personal computers of the early 1980s, and the Internet of the late 1990s.  In the last cycle, we've gone through boom and bust and are currently in dig-out -- according to these economists.  If I were an economist, I could remember the names of these people.  

Personally, I don't have a dog in this fight, but the economics forums I attended last year are more persuasive than the above comment.  Of course, Churchill was speaking during the latter stages of the industrial revolution and not about economic revolutions at all.

The irony is that Linux only exists because Microsoft created a huge market for the microprocessors on which it runs.

I wouldn't pat MSFT on the back too much for that.  First, MSFT wouldn't exist as a company if IBM hadn't chosen an open architecture for its PCs in the 1980s.  So I suppose Linus Torvalds will give MSFT its due respect when MSFT gives its due respect to IBM.

In addition, Linux isn't the only alternative to MSFT in the PC platform.  There are a number of home-baked OSs and at least FreeBSD Unix as an alternative.  I understand Sun is about to release its Solaris for the x86 platform as well.  Linux stands above these others on its merit, not merely on the coat-tails of MSFT.

Now, I'm going to have to let someone else get the last word in here.  This is getting too far off topic for the time I have.

Regards.