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Red Hat States Its Case Against Software Patents

Posted in Europe, GNU/Linux, Law, Microsoft, Patents, Red Hat at 6:08 am by Dr. Roy Schestowitz

“The European Patent Office is an executive organisation, it deals especially with patent applicants, as such, its view of the world may be biased. As an executive organisation, its interpretative powers are very limited. The European Patent Convention excludes computer programs, it is outside the EPO’s power to change this.”

Ante Wessels

MS and GE (Microsoft and General Electric) have jointly filed their case in favour of software patents in Europe (de facto banning of Free software) and FFII has made their mockery available as HTML, but what we also have is the submission from Red Hat, which only Glyn Moody appears to have analysed. As he put it:

My reasoning was that this was an extremely technical consideration of the issue of software patents, and that the people pondering the matter would not be interested in vague philosophical waffle about why software patents were a bad thing. They would be looking for keenly-argued, legalistic comments of the kind I was manifestly unable to provide.

Instead, I thought it better to leave this one to those better able to obtain some heavy legal advice on what should be written, and how.

Steve Stites, a regular at LinuxToday, writes:

I think that a more appropriate title for the article would be “Red Hat speaks for us all on software patents”.

Thank you, Red Hat.

Red Hat presents the Open Source argument against software patents very well. I would also like to see a commercial software company such as Microsoft present the commercial argument against software patents. Software patents are less than a zero sum game among the commercial software companies. They create a net drag on the commercial software industry. Microsoft has the largest loses of any company in the software patent wars and they are the logical commercial candidate to lobby for the abolition of software patents.

Despite some uncertainty, Red Hat makes it clear that it is against software patents. So now is the right time for Red Hat to stop filing for some. Hypocrisy is not a good advocacy tool.

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  1. Dale B. Halling said,

    May 7, 2009 at 1:00 pm


    The arguments against software patents have a fundamental flaw. As any electrical engineer knows, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits.

    Roy Schestowitz Reply:

    Explain this to kids with a compiler in a classroom.

    There is only scarcity when you introduce something physical. As even Microsoft agrees, there needs to be a device.

    Dale B. Halling Reply:

    A computer is a physical item, the software runs on a computer. Therefore a computer running software is a physical tangible item – it consumes energy gives off heat. It’s processing power and memory are limited and therefore scarce.

    Roy Schestowitz Reply:

    Therefore a computer running…

    Correct. Unlike software. I am not talking about storage devices that hold program code.

  2. saulgoode said,

    May 7, 2009 at 3:16 pm


    Should a computer simulation/model of a patented machine be considered to infringe on that patent?

    Should your answer be “yes”, you are saying that software makes or uses the invention’s technology. This would permit software to be patentable, but then it should be required “real world” prior art be taken into account when granting software patents — a software implementation of a real world machine or process would not be distinct with regard to patents from that machine or process.

    Should your answer be “no”, you are effectively saying that software should not be patentable. Even if a patent were granted on a software “invention”, a program which “simulates” that software technology should not be infringing. If a software model of a machine isn’t infringing then why should a software model of a software model be infringing?

    Dale B. Halling Reply:

    Should a computer simulation/model of a patented machine be considered to infringe on that patent?

    It depends on the what the invention is. For instance, a computer simulation of a part for an airplane would not likely infringe the claims of a patent on the part for an airplane. A computer simulation of spreadsheet, would almost certainly infringe the claims of a patent for a spreadsheet. You have to understand the role of the claims in a patent to answer you question.

    As to you second question, should it be required “real world” prior art be taken into account when granting software patents? Absolutely. This is true of all patents and “real world” prior art is considered in all areas of technology. The one problem with software is that the patent office discouraged patents on software for several decades. As a result, there internal database of knowledge about patents is not as rich as in other areas of technology. The solution however is not to ban patents on software, but to encourage patents on software.

    Roy Schestowitz Reply:

    Going by this logic, we might as well just acquire monopolies on the use of particular words from the English dictionary too, such as the word “Android”, which Google et al are now sued for (almost $100,000,000 in claims).

    More monopolies are more fences, they are not innovation enablers.

    Lawyers like to repeat the opposite claim until it becomes inherently true in the minds of gullible people. They don’t like scope. More patents are more revenue (to lawyers). The same goes for the EPO, which is now ‘patenting’ pigs (so to speak) and supersedes/circumvents the judgment of an impartial entity like the parliament.

    This indoctrination is what such lobbying events are for.

  3. saulgoode said,

    May 7, 2009 at 6:05 pm


    A computer simulation of spreadsheet, would almost certainly infringe the claims of a patent for a spreadsheet.

    But if real world prior art is admitted, surely spreadsheets would have been precedented by human computers such as those employed by Gaspard de Prony over two centuries ago.

    The one problem with software is that the patent office discouraged patents on software for several decades. As a result, there internal database of knowledge about patents is not as rich as in other areas of technology. The solution however is not to ban patents on software, but to encourage patents on software.

    The problem isn’t the patent office’s lack of knowledge about patents, it is their inability to recognize that “innovations” such as using lookup tables for video conversion are no different than the log and trig tables generated by de Prony’s human spreadsheets 200+ years ago. Doing something that has already been done does not become inventive just because it is done with a digital computer.

    And for what it’s worth, there is no precedent in U.S. case law that would suggest a computer simulation of a patented technology infringes on those patents. Therein lies the solution I would propose: formalize the adoption of a Fair Use for patents which would permit software modeling of patented technology — no exception to be made if the technology being modeled is itself software.

    Roy Schestowitz Reply:

    Two classes of patents have become notorious for this reason; the first is the “using a machine” patents, the second is the “over the Internet/network” patents.

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