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- simpleboy, on 04/08/2008, -9/+141Here is the complete post (don't overload the servers of open source providers ;-) )
Red Hat Asks Federal Court To Limit Patents On Software
by Rob Tiller, Vice President and Assistant General Counsel, IP
Today, Red Hat took a public stand challenging the standards for patenting software. In the Biliski case that is now before the Federal Circuit Court of Appeals, this patent issue is ripe for consideration. In a friend of the court brief submitted to the Federal Circuit Court of Appeals in the Bilski case today, Red Hat describes the special problems that patents pose for open source and seeks modification of the standards for patentable subject matter that take open source into account. Here is a quick summary of our brief.
Open source software is one of the most dynamic, innovative sectors of the U.S. economy, but the U.S. patent system is a costly hindrance to open source innovation. We believe that although the patent system was created to foster innovation, it’s simply not an engine for innovation for open source. Software patents were barely recognized when open source began, and so the hope of obtaining a patent did not motivate the first developers. Those pioneers were generally opposed to software patents. The open, collaborative activity at the heart of open source is at odds with the patent system, which excludes the public from making, using or selling a patented invention. Open source developers seek to contribute code to the community – not to exclude others from using the code.
Today the patent system is, if anything, a hindrance to open source. Developers face the risk that the original code they have written in good faith could be deemed to infringe an existing software patent. It’s impossible to rule out this possibility, because there are now more than 200,000 software patents, and those patents cannot be efficiently searched. Software patents are difficult to interpret, even for experts in computer science and software engineering. Experts often disagree as to whether a particular patent claim covers a particular program. Thus , a risk of litigation exist for every open source project, and the potential cost of patent litigation runs into millions of dollars for a single case.
Given the litigation risk, some open source companies, including Red Hat, acquire patents for the sole purpose of asserting them defensively in the event they are faced with a future lawsuit. Red Hat also provides open source intellectual property protections through our Open Source Assurance Program that protects our customers and encourages them to deploy with confidence. Our strategy is a prudent one and mitigates the risk of patent lawsuits, but it would be unnecessary if the system itself were fixed.
Despite the hindrances of the patent system, open source continues to expand at an exponential rate. One can only imagine how that expansion would accelerate if the braking effect of the patent system were lifted.
In the Bilski case now pending in the Federal Circuit, the appeals court will address the issue of the boundaries of the subject matter that may be patented. The Supreme Court has repeatedly stated that abstract ideas and algorithms (which are the core building blocks of computer programs) are not patentable. Applying this principle consistently would greatly narrow the availability of software patents. As the Federal Circuit addresses the standard for patentable subject matter, we urge in our brief that it take account of the perverse effects of the patent system on open source and narrow the standard for patentability.
Our full brief will be posted online soon. Check back for the link.
This entry was posted by Rob Tiller, Vice President and Assistant General Counsel, IP on Monday, April 7th, 2008 at 2:22 pm and is filed under IP. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed. - z0mbie2099, on 04/08/2008, -3/+99Most software patents prevent the progress of technology as a whole.
- Kingoftherings, on 04/08/2008, -9/+87I agree, a lot of these software patents are stupid, namely MP3.
- crapmatic, on 04/08/2008, -1/+56Thank you, it's about time someone stood up to the stupidity. In my scientific field, there's an infamous company that managed to secure about a dozen patents for math algorithms, for instance taking an X/Y coordinate and simply plotting it on a computer screen. The US Patent Office is destroying competition and innovation by allowing anyone with a pack of attorneys and a big bank account to patent some of the stupidest *****. It needs to stop.
- DangerCollie, on 04/08/2008, -1/+47About freaking time. Software patents are from the devil.
- sirhomer, on 04/08/2008, -1/+38You are confusing patents with copyrights.
- mmcgrath, on 04/08/2008, -2/+35MP3 as a patent seems reasonable compared to some of the crap thats out there. Have you ever seen how many patents microsoft has on mouse cursors?
- akilleen, on 04/08/2008, -0/+29I remember when people used to say that Red Hat was the Microsoft of the Linux world. I think that, as far as corporations go, they are actually a pretty cool company. They really do a lot to support the open source community, and they will always have my respect for that.
- stubear, on 04/08/2008, -3/+29It's RedHat, I think they can take the hit.
- AnarkeIncarnate, on 04/08/2008, -0/+18There is a difference between reaming out a piece of steel, attaching other pieces to it, and creating something both novel and physical that has not been done before and the concept of making a software patent like "A shopping cart online". Many software patents are just real world concepts that have been poorly ported to "computers".
- TheRealToma, on 04/08/2008, -4/+22Dugg because I like the idea of a world without boundaries. Viva la revolution! :D
- Merendino, on 04/08/2008, -0/+17The law part was when he was talking about how 'abstract ideas' and 'algorithms' are not patentable but the courts allow them anyhow. Thats a law concept being used to fight the law.
Just FYI. - lamiaconfitor, on 04/08/2008, -2/+19no, you are.
- dsmx, on 04/08/2008, -1/+18I'm of the opinion that you should outlaw patenting software code, it is impossible for a company to look through every code ever written to see which has been patented. All it does is result in lengthy law suits that result in one side trying to prove that they copied and the other trying to prove they arrived at that code independently. With the end result being that neither side can prove either way.
- simpleboy, on 04/08/2008, -1/+15That doesn't matter. Though they have now become commercial but still they promote Linux. Also, their products (distribution?) are comparatively cheaper than proprietary OS. And we should be obliged to RedHat for being one of the first distribution that made people realize that there exist alternatives of Windows. I've a very high respect for RedHat.
- Youssif, on 04/08/2008, -0/+13Thank you Red Hat.
- Kamujin, on 04/08/2008, -0/+13These software patents are a complete joke. The worst part being that many of them don't even meet the "not obvious" standard.
As we become more technical and specialized, expecting non-experts to understand these things will continue to give bad results.
Sadly, the worst elements of our society will continue to feed upon these in-efficiencies in a parasitic manner. - vertexoflife, on 04/08/2008, -0/+12Patent =/= copyright, you can still make money off of something copyrighted.
- Megatog615, on 04/08/2008, -0/+12Heh.
- Arramol, on 04/08/2008, -0/+11They do like to use them for FUD, although they're not so good about following up on it. How many nebulous, unnamed patents did they claim Linux infringed again?
- LOLIGATOR, on 04/08/2008, -1/+10I really hope something comes out of this. Innovation is definitely being hindered by so called "software patents", which I can understand wanting to protect your intellectual property, but if the user of the patent is giving away the software they make for free, is anyone really getting hurt in the end? Of course! All of the big software companies, which is why I have the feeling this plea will get them no where. I have to agree with what cranium said; it might help if they bring this to the attention of the right branch of government. What are judges going to do? They can't change the law. Do they expect them to make it more flexible just for open source? BRING THIS TO CONGRESS'S ATTENTION, although most of those old farts don't know the difference between the internet and plumbing :
- Meekus, on 04/08/2008, -0/+9I wonder what the computer science expertise level is of these patent granters?
- hayzeus, on 04/08/2008, -0/+7"algortithms for mp3"
You have failed right there -- consider learning more about what is and is not patentable. Furthermore, the notion that a software patent actually allows you to recoup real R&D costs is generally laughable. And OSS has nor R&D costs? Are you retarded? What does the licensing model have to do with development costs? - lamiaconfitor, on 04/08/2008, -0/+6Their expertise is in defining "Novelty," a term I believe applies to sex toys.
- bsmang, on 04/08/2008, -1/+7Patenting software code is mostly like patenting horizontal brush strokes.
- Kral, on 04/08/2008, -2/+7My favorite insanely stupid patent that caused a mess: the Y2K Windowing patent. What year is 98? 1998? What year is 01? 2001? Implement that in software and you violated a patent.
The whole ***** patent system needs thrown away as it's nothing but a tool to suppress new competition by entrenched corporations that cross-license. That's obviously not healthy for the economy. The result of the system was the exact opposite of the intent. - cranium, on 04/08/2008, -4/+9I disagree with software patents, but it seems like if you're arguing before a court you should argue based on the law, not make an argument based on a "good idea". "Good idea" arguments should be made to congress. We're all better off if those two branches of government don't get confused about whose job is whose.
- lamiaconfitor, on 04/08/2008, -0/+5no, Dr Dre has a "COPYRIGHT" on "deez nuts"... jeez, another one.
- SlickNic, on 04/08/2008, -1/+6Got any links to back that up, I would love to read them.
- d03boy, on 04/08/2008, -0/+5Now relate quality of software and let's try this again
- bsmang, on 04/08/2008, -0/+5You forgot:
al11588- Fail - sirhomer, on 04/08/2008, -0/+5For reference, software patents are invalid in most of the much of the world. In the USA, it is virtually impossible to write modern software without violating someones patents. Everything from capturing events from mouse clicks to min/maxing windows are patented. So you never really know when you'll get sued if you develop software. Microsoft interestingly themselves lose billions per year in legal fees due to patent lawsuits.
- nylrym, on 04/08/2008, -0/+4Do you have any idea what you're talking about? It's copyright that protects your ability to get paid for code, not patent law.
- mmcgrath, on 04/08/2008, -0/+4Yeah that Vista is a real rock star.
- klco, on 04/08/2008, -1/+5Name 1 (besides Apple)
- Kingoftherings, on 04/08/2008, -1/+5Imagine going into a math class, but you can't discuss the Mandlebrot set because IBM has a patent on it.
- scyon, on 04/08/2008, -0/+4"Q: Who is the company that contributes the most software related jobs and the most software related revenue to the US economy?
A: Microsoft"
Please look up the broken window fallacy, it may illuminate why many of those jobs are more makework than anything else. - javaroast, on 04/08/2008, -0/+4Let's give a warm digg welcome to mdude85, the very first software patent fanboy. Welcome mdude!
- crunchyeyeball, on 04/08/2008, -0/+4> ...trying to prove they arrived at that code independently...
This is the whole problem with the patent system as it stands - it doesn't matter if you arrived at that code independently - all that matters is someone got it to the patent office before you.
Of course, in an ideal world the fact that you were able to come up with the code independently would suggest that the original idea was not innovative enough to warrant a patent being granted in the first place, but as we all know, the patent office seems all too happy to grant a patent on the most obvious of ideas. - klco, on 04/08/2008, -0/+3Actually I think the 'special consideration' you are talking about could also be termed 'not completely subverting the patent system to benefit a small group of wealthy individuals'
- frsrblch, on 04/08/2008, -0/+3A patent of this nature would be to math programs as a patent on breathing with lungs would be to humans (which would have been approved by somebody with as much knowledge of breathing as a fish, rather than, say, a mammal).
And how does somebody so down on their luck afford a patent in the first place? Those things ain't cheap. Plus, as a little guy, how are you going to be able to effectively afford to fight said big corporations? Those patents won't defend themselves.
Ever wonder why consoles these days don't have rumble capability anymore? Patents. - hayzeus, on 04/08/2008, -0/+3It's been a while, bit back in the day I worked in a patent law office. Usually the examiners had some experience in the field in which the patent applied -- but in general they are (were) primarily young lawyers or law students on their way to private IPL practice.
- Spuy767, on 04/09/2008, -0/+3THe patent on MP3 is decidedly un-ridiculous. It's a patent on an extremely specific algorithm for compressing audio. That said, the type of patents we want to get away from are, say, patenting the concept of compressing music. There's a gray area. I have a software patent on a particular method of displaying data on a thin client, it's not, in the case of Fraunhofer, a specific algorithm that I've patented, but it's not vague as ***** like some of the patents I've seen. The scope of patents that are being allowed is the problem. I shouldn't be able to patent the idea of displaying data from a server on a thin client, but I should be able to patent a novel way of doing that very thing.
- rocket777, on 04/08/2008, -0/+3I'm old enough to remember when software could not be patented. So, we're not talking about something that has existed forever. The innovation that resulted produced the computer software explosion. After all, what other industry advanced faster and further than has the entire field of computers. But this is slowing down as government gets its claws into the industry. Pretty soon we'll see the FSA (federal software administration) to keep out innovation in the same way that the FDA keeps new drugs off the market. Then software and computers will cost as much as prescription drugs, and prices will keep rising instead of falling.
- inactive, on 04/09/2008, -0/+3Actually, he makes really sensible points. If you think that he comments makes him look like a fanboy, I suspect you might be a bigger one than him (if at all he is). "Having respect for a company" is a concept which Microsofties have never understood.
- Myztry, on 04/08/2008, -1/+4Congress is subject (maybe even controlled) by financial lobbying for the benefit of the few. Open source is the non-financial representation of the masses. If anything is to be acheived for humanity as a whole in this area, then it will need to be via the Courts, or similar non-vested parties. Members of Congress like too much what the wealthy few have to offer.
- JQP123, on 04/08/2008, -1/+4Can you name one *major* university where software development is taught by the mathematics department? I don't know of one and for good reason --- the relationship between them is very minor.
Software development is most closely related to engineering and design. - javaroast, on 04/08/2008, -0/+31. Your frequent posts in this topic is fanboy type behavior. 2. It was a joke. 3. You've completely missed what this is all about in your whole dual standard argument. That isn't even what is happening there. This is a case which may throw out software patents all together. Not just for OSS but for everyone including "proprietary source companies."
- akiratheoni, on 04/09/2008, -0/+3A lot of open source developers do work for companies like IBM and such so they're not all just hobbyists. Open source doesn't mean just hobbyists and amateurs, it just means the source code is open. So companies like IBM and Red Hat can still have jobs for open source developers.
- protogenxl, on 04/08/2008, -0/+3I am Patenting the "Internet Troll Thought Process" so pay up or GTFO
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