Software patents and FreeBSD

[Bryan Maynard]

On Saturday 09 July 2005 04:19 pm, David Kelly wrote:
> On Jul 8, 2005, at 11:23 PM, R. Tyler Ballance wrote:
> > Doesn't the fact that the patent office is unable to check for
> > prior art make software patents inherently evil? There is almost no
> > plausible way, given the nature of the internet, to check for prior
> > art in software. Especially if companies are trying to patent
> > computing concepts, like email, or a web server, etc.

> The fact that its implemented in software doesn't change anything.
> There is no way any patent claim can cover all possible prior art,
> nobody ever claimed it could. A patent is not an absolute grant of
> license from the government, but a registration of claim of
> invention. That on initial investigation the government agrees that
> its likely one invented the claimed and a patent is issued. Then one
> must defend their patent against claimed infringement and in doing so
> puts the patent at risk. If the infringer demonstrates prior art then
> the patent becomes unenforceable.

Your points are good and valid - and look perfectly fine on paper. However, 
what you are not taking into consideration is: money. The legal teams present 
at companies like Mircosoft and Adobe would make it impossible for 
individuals - who usually truely "innovate" by making changes to "ideas", 
"concepts", and/or "products" already in use. The reason for putting 
innovate, ideas, concepts, and products is because these things are neither 
tangible not referenceable: who created the web server? Who created Object 
Oriented Programming? Kodak seems to think they did. They sued Sun - with 
that as their claim (Kodak claims to have invented the concept of: "two 
machines communicating in an Object Oriented way"). These stories <a 
href="http://www.geek.com/news/geeknews/2004Oct/gee20041007027286.htm">1</a> ::<a 
href="http://news.com.com/Kodak+sues+Sun+over+aspects+of+Java/2100-1001_3-836322.html?tag=nl">2</a> :: 
<a 
href="http://www.zdnet.co.uk/talkback/?PROCESS=show&ID=20029249&AT=39169459-39020682t-21000005c"> 
show one example of how a perfectly legal and, seemingly benign, patent could 
possibly destroy innovation not initiated or gaurded by a mega-corporation. 
There is no way most software companies could come up with $92 million to 
settle a patent infringement case.

As anyone who has been involved in court will tell you, money walks. Layers 
can prove almost anything if they are paid enough - jury or no. This is where 
to reall threat from software patends comes from as I see it.

> A patent grants the right to sue for 20 years in exchange for public
> disclosure as to the details of the invention. In exchange for that
> exclusivity after 20 years the disclosed claims of the invention is
> public domain and remains an easy reference of prior art. If one
> believes "software patents" are a problem then the solution is to
> amass a searchable library of documented prior art to nip the not-new-
> invention patent applications in the bud. Search a bit online, there
> are several projects doing exactly that.

> Software is nothing new to the patent process, its simply a different
> angle. There have always been those who claim patents are bad, that
> "everything has already been invented." On the other hand the only
> countries who grow their economies with innovation have strong patent
> laws. Nothing of significance is invented in the absence of patent
> protection.

Indeed you are correct; software is nothing new to the patent process. 
Something you miss is how the patents that have been granted to software have 
destroyed innovation for that product.

"The U.S. Patent and Trademark Office historically has been reluctant to grant 
patents on inventions relating to computer software. In the 1970s, the P.T.O. 
avoided granting any patent if the invention utilized a calculation made by a 
computer. Their rationale was that patents could only be granted to 
processes, machines, articles of manufacture, and compositions of matter."

--taken from: http://www.bitlaw.com/software-patent/history.html

I am an Open Source prject owner. My project can be found at 
http://reallm .com . Personally, the problem I have with software patents is 
that they may potentially take tools I need out of my toolbox - and make it 
impossible to complete my project. The reason for this is that if a certain 
tool (<a href="www.springframework.org">Spring</a>) needs to be patented,  
Ican no longer modify - or possibly even use - that tool. This is why 
licensing exists for software. <a 
href="http://www.gnu.org/philosophy/license-list.html">Licensing</a> protects 
the creator of an intellectual property against that property being used 
either without concent or in an unauthorized manner. That is all software is 
- an intellectual property. If you enter "<a 
href="http://www.google.com/search?q=define%3A+software&start=0&start=0&ie=utf-8&oe=utf-8&client=firefox-a&rls=org.mozilla:en-US:official">define: 
software</a>" into Google or search for "< a 
href="http://en.wikipedia.org/wiki/Software">software</a>" at wikipedia.org 
you'll find that software has no physical presense whatsoever. Software, by 
definition, is an abstract concept.

If patents are applied to software, at what level of astraction do we stop 
allowing patents? As Kodak has, so elequently, show - you can obtain a patent 
for: "two machines communicating in an Object Oriented way". This means that 
it is not only possible, but plausible and adventageous to patent the for 
loop and other computational constructs. Within a year all consrtucts of 
computing could, very realisticly, be patented.

> --
> David Kelly N4HHE, dkelly at HiWAAY.net
> ========================================================================
> Whom computers would destroy, they must first drive mad.

Before I close, I would like to return to my point on software licensing.

One question: Why are movies not patented? Why are "types" of movies not 
patented? I am not talking about patenting "action" movies or "love" stories 
(although that would be possible using the logic of those who currently 
support software patents). I am talking about the patenting of documentable, 
movie formulas: 

1.a) Boy meets girl
1.b) Boy falls in love with girl
1.c) Boy losses girl
1.d) Boy gets girl back
1.e) Boy and girl live happily ever after

2.a) Evil genius hates world
2.b) Evil genius makes plan to "make world pay/understand/suffer"
2.c) Evil genius begins preparations to implement plan
2.d) World power/commitee/government discovers Evil genius's plan
2.e) World power/commitee/government employes Hero to "save the 
day/world/daughter"
2.f) Hero (and possible sidekick/comic relief) embarks on mission
2.g) Evil genius cathces Hero (and possible sidekick/comic relief)
2.h) Evil genius prepares Hero (and possible sidekick/comic relief) for 
turture and death
2.i) Evil genius informs Hero (and possible sidekick/comic relief) of plans 
since there is nothing the Hero (and possible sidekick/comic relief) can do 
to stop him/her
2.j) Hero escapes
2.j.i) Sidekick/comic relief dies dramatically
2.j.ii) Sidekick/comic relief narrowlly escapes death, saved by Hero
2.k) Hero (and possible sidekick/comic relief - if saved) use information 
gathered from Evil genius's "monologue" to defeat Evil genius and save 
world/country/day
2.l) Hero is hansomly rewarded
2.l.i) Sidekick/comic relief - if saved - is hansomly rewarded also
2.l.ii) Sidekick/comic relief - if saved - is not rewarded (comic relief)
2.l.iii) Sidekick/comic relief - if notsaved - is fondly remembered by Hero
2.l.iv) Sidekick/comic relief - if not saved - is fondly remember by Hero and 
world/commitee/government/town/family

Additional stipulation: patent holder reserves the right to insert 
male/female/animal at any point - for the purpose of increasing dramatic 
tension.

That was a rather lengthy example, but very plausible is film makers and story 
tellres were allowed to patent their art. All the nasty, tangled, confusing 
questions surrounding software patents apply to movies as well: What about 
previous art? Where would patentability end - script pacing, story arch, 
catch-phrases, specific word arrangement, lighting configuration, camera 
anges, fade/wipe techniques. . . ?

This is the exact reason that licensing was forst applied to film and 
televsion: allow artists maximum creative versatility while preserving 
specific instances of creator recongnition and defining specific and 
enforcable usage rights and restrictions. Licensing terms gaurantee IP 
creators and holders any and all desired rights to their creations.

Patents take the concept of licensing one step further. For items that have 
specific physical designs, requirments, and implementations patents work very 
well: they provide the same level of protection and freedom that licensing 
grants to IPs.

Many industries have this concept: use the right tool for the job. The 
converse is also a well-known idiom: When all you have is a hammer, everthing 
looks like a nail. This brings the issues of software patents info perfect 
focus: What is the proper tool for the job? There are a great variety of 
software licenses availible - thereallm is licensed under the <a 
href="www.opensource.org/licenses/cpl1.0.php"><acronym title="Common Public 
License">CPL</acronym></a> version 1.0. There are several benefits to 
licensing software:

1) The license can be changed at any time
    This means that, for a future version of thereallm, the license could be 
switched to the GPL, BSD, or any other license as needed.

2) The license itself ccan change and adapt
    The creator/maintainer of the CPL can change the license as they see fit 
at any time.

Both of these things work very well for software since software is always 
changing and growing. By contrast, patents provide these benefits:

1) Patents are immutable
    Once granted, a patent stays the same and provides the same protection for 
the life of the patent.

2) Patents, and their terms, are created and maintained by the Government
    This means that patents are always the same and all patent related 
questions and issues can be taken to a single source.

These benefits actually would provide no service for software. If, for 
example, a patented routine or software package was changed in a certain way 
the patent governing that routine or software would no longer be valid and 
another patent would need to be obtained. This brings up another issue with 
patents: they cost money. Licenses are free to develop, distribute, and 
enforce. Patents, however, require a great deal of financial resources to 
develop, distribute, and enforce (as tthe Kodak-Sun case proved).

Again, this brings us back to the issue of using the proper tool for the given 
job. Patents are, indeed, not evil. They provide much-needed services in many 
sectors. However, they are simply not the proper tool for enforcing ownership 
of IPs. Licenses fit this need perfectly - for the reasons listed above.

Thank you for your time. This is a lengthy comment on an important issue. If 
needed, you are wlcome to contact me at bryan.maynard at reallm.com . Again, 
thank you for your time - and I thank the other contributors to this topic 
for their opinions, insite, and dedication.

Bryan
-- 
Open Source: by the people, for the people.