07.03.08

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News Roundup: When Software Patents Backfire

Posted in Apple, Europe, GNU/Linux, IBM, Microsoft, Patents, SUN at 5:44 am by Dr. Roy Schestowitz

Trend Micro Eats Crow

We have been writing quite a lot about Trend Micro in the recent past [1, 2] due to their exemplary attack on Free open source software. Whether it was deliberate or not to make this a legal challenge against a community of users and developers is a separate matter.

To demonstrate how pointless software patents really are, behold what Barracuda Networks, the scapegoat which is being sued in this case, does as means of retaliation and defense:

Barracuda Networks Countersues Trend Micro

There’s some news on the Trend Micro v.Barracuda Networks case. That is the one where Trend Micro sued Barracuda over ClamAV and brought a complaint to the International Trade Commission. Barracuda has just filed a countersuit in California, alleging patent infringement by Trend Micro. They say it’s a defensive use of three patents they bought from IBM. Barracuda asks for money damages and an injunction on further sales of infringing Trend Micro products.

As proof of the self-defeating purpose of software patents, consider this ‘loaning’ of algorithms.

Drako is reluctant to discuss details, but the patents were purchased from IBM some time in the last six months — in other words, after Trend Micro filed against Barracuda. “I approached IBM asking for help in defense of the open source community, and they directed me to the individual who sells their patents,” Drako says.

It’s a zero-sum war, so while engage in this war in the first place? Everyone implements abstracts ideas all the time. The only sin is seeking to own them when there is no device or exact implementation (copyrights) involved. It’s greed. It’s appalling.

More details about this latest development come from Don Marti.

Microsoft Employee Denounces Software Patents?

Even an outspoken Microsoft employee is against software patents on the face of it (depending on one’s interpretation).

Yes, Jobs and Apple were the first to produce a mass market graphical user operating system, and Gates sure seemed to borrow concepts from that effort. That, somehow, is viewed as bad, even as Jobs “borrowing” of XEROX concepts for his graphical user interface is viewed as good. As someone who is no fan of software patents (approbrium for which seems selectively applied among those who wished a sinkhole had spontaneously opened beneath Redmond sometime in the past 20 years), my personal opinion is that Jobs was as right to borrow from XEROX as Gates was to borrow from Jobs. Ideas are like a pyramid, and pharoah Jobs may have supplied a few stones during its construction, but he built on stacks placed by others before him.

Sun and Patents

The other day we wrote about MySQL's founders opposing software patents. But what about Sun, which now owns MySQL? Watch this one carefully.

Three years ago come August, O’Reilly’s Nat Torkington, interviewing Sun’s Jonathan Schwartz, pressed the CEO on the issues of patents generally and DTrace patents specifically.

Torkington’s question? “So if the Linux kernel were to implement DTrace, Sun wouldn’t employ the patents against them?”

Schwartz’ answer? “Knock yourself out.”

That was 2005. Fast forward to 2008. As one of the DTrace engineers has noted, Paul Fox is taking Schwartz up on that challenge.

[...]

One answer, at least, we have. While many would probably argue that a DTrace port to Linux would be disastrous for Solaris and OpenSolaris – that DTrace was one the reasons the CDDL license was originally selected for the latter project, in face – the engineers that built it appear to be standing ready to help, should anyone be inclined to ask.

As Groklaw recently suggested, trusting Sun is still a bit of a stretch. Sun is neither a friend nor a fan of Linux, against which it competes. Free software as a whole is another story.

Europe’s Back Door Seen as Less Effective

We’ve expressed some concerns (and cited others) about the use of political manipulation and loopholes to change European patent law. Microsoft's pressure groups are involved and they want to legalise software patents one nation/continent at a time (they’ve already got Australia and Japan). At least one of the back doors (there are several) seems to be blocked at the moment.

As France takes the helm of the European Union this week, the officials charged with shaping the country’s contribution to EU-wide innovation policy are busy lowering expectations.

[...]

It’s not the absence of the treaty itself that is so disruptive to long-term initiatives such as Union-wide research projects and reaching agreement on a Community Patent. Most if not all issues that France hoped to push forward during its six months in charge don’t strictly need the new treaty in order to materialise.

The problem is that the house of cards that is EU-wide political unity has been blown down. Forget reaching agreement on a Community Patent, which would require unanimity from all member states, warn many Brussels pundits.

Peer-to-Patent Update

On the other side of this pond, there are those who experiment with the idea of open-sourcing — or ‘crowdsourcing’ — the whole process (mentioned before in [1, 2, 3, 4, 5, 6]). Here is a report about “encouraging results”.

Congratulations to the organizers of Peer-to-Patent, which is carrying off one of the most audacious experiments in Internet activism in our day. A lot of ink has been spilled about Barack Obama’s application of social networking techniques to presidential campaigning (and to Ron Paul’s successful fund-raising before that) but Peer-to-Patent makes those achievements seem entirely run-of-the-mill.

The premise behind Peer-to-Patent, which many observers called impractical, was that thousands of experts in technical fields would flock to the site to read patent applications (if you’ve ever read one, you’d hike the stakes against success several notches right there) and would find prior art that would lead to rejection or restrictions on patent claims.

Software patents are dumb. They needn’t be permitted. But those who want a government-imposed monopoly for their computer program will use any excuse available — and sometimes incentive/bribe — to ‘massage’ the system to their benefit. Without response to this threat, the system will be reshaped to facilitate those who thrive in abuse of it.

This debate is very relevant to this Web site because Novell is trying to capitalise on its patent portfolio and use it to ‘punish’ all other GNU/Linux vendors. It wants to acquire a Linux monopoly using software patents and deals that make them relevant.

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