03.25.08
Software Patents and FOSS Revisited
ERROR #000000F6: incompatible with freedom
The cost of Free software may still depend on the ability to keep software patents away. But companies such as Sun Microsystems cannot resist talking about software patents, having been granted quite a few of them. It’s a case of obligation to their investors. or so they would openly argue and have you believe.
We recently mentioned Simon Phipps’ powwow with Michael Tiemann about software patents and Open Source. Don Marti summarises:
Simon Phipps proposes a hard problem: expanding the definition of ‘open source’ to include patents.
The easy part is dealing with any patents that are actually licensable by the person or company who is licensing the code. To get to a new “definition” you could say that copyright licenses that don’t also grant a patent license must be accompanied by a patent license grant.
The correspondence there mentioned the term “patents” very loosely. A couple of days ago we were reminded by a reader that it is crucial to make the clear distinction between patents and software patents. To quote:
“…could you correct the reference to ‘patents’ to say instead ‘software patents’ in the cases where it fits?
That is of utmost importance and I wish we could get Slashdot to tag its articles accordingly as well.
People have been trained for decades to get the warm and fuzzies for ‘patents’ which are touted as the ultimate metric for productivity in the private sector. Going against ‘patents’ has that barrier to overcome.
However, as we all know everything, even the rules of economy and physics, are completely different 
for software.
So headway can be made iff (if and only if) the debate is properly framed. That requires that new concepts be given new names.”
To get an idea of how software patents are treated around the world, consider this new comprehensive text. To get an idea of the harms, just watch the news. On the face of it, a new AJAX patent threat is looming and it could affect the entire Web, regardless of whether you’re a programmer of not. We gave recent examples of this, showing that everyone would suffer from software patents and be sensitive to lawsuits.
In supporting documentation it is claimed that pretty much the whole of the web uses this method to operate AJAX-based applications. Google, Yahoo, Microsoft, Apple and eBay are identified as among those whose products “potentially” infringe on the patent.
The software patent problem is further complicated by scale, as demonstrated in this short article from CNET.
Under the law, the public is deemed to have constructive notice that something is patented if that something has a patent number on it. The idea behind the law apparently is that if one sees a patent number, one has the ability to look that patent up, read it, and maybe even understand what it says. For the corrugated sleeve, it was simple enough for me–albeit a little geeky–to take a look at the ’473 patent and understand how the sleeve works to make the heat from my latte more bearable.
But many times, the patents behind products marked with patent numbers are not as easily understandable. For example, the notice on Adobe Reader v. 8.1.2 lists over 60 different patents. I’m pretty sure that most of those patents are far more complex than the ’473 patent. But, assuming the numbers are properly listed, the law says that I and the rest of the public are on notice of whatever it is those patents cover.
Breadth and scale aside, trolling is probably the most severe problem. Remember the patent troll Acacia [1, 2, 3, 4, 5, 6, 7, 8, 9]? It’s keeping very busy, having just made some more money yesterday (probably after threats of litigation).
Diagnostic Systems Corp., a subsidiary of Acacia Research Corp. (NASDAQ: ACTG), has entered into a license agreement with SAS Institute Inc. covering a portfolio of patents that apply to rule-based monitoring.
The subsidiary has also entered into a license agreement with BMC Software Inc. (NYSE: BMC), covering a portfolio of patents that apply to rule-based monitoring. This resolves a dispute that was pending in the District Court for the Central District of California.
The patent number is not listed, but go ahead and figure what “rule-based monitoring” actually means. Watch what Bill Gates said before Microsoft became a monopolist (and claimed that Linux, its #1 threat, infringes on its software patents):
“If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today… some large company will patent some obvious thing… take as much of our profits as they want.”
–Bill Gates
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