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Red Hat Asks Federal Court To Limit Patents On Software

press.redhat.com — Today, Red Hat took a public stand challenging the standards for patenting software.

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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.
    • stubear, on 04/08/2008, -3/+29It's RedHat, I think they can take the hit.
      • 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.
        • se1zure, on 04/08/2008, -5/+2wow fanboy at it's finest
          • diggmaddy, 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.
        • init100, on 04/09/2008, -0/+1Me too. They believe in FOSS, and it is evident from their actions. They do not only adhere to the letter of the licenses, but also to their intent. They buy proprietary software companies and open up their products. They supply source RPMs to their enterprise Linux distribution ready to be rebuilt by anyone to the entire world even though they are only required to supply the source to their customers. They work against the patentability of software. Etc, etc.
      • zanderw00t, on 04/09/2008, -1/+1Not if they're using Redhat servers.
    • 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.
    • kaelyiesta, on 04/08/2008, -0/+1A thought from a non legal perspective:

      "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."

      Could we not append a new form of patent to our current system that is designed for this need? Open source devs could apply for this so called defensive patent which would only prevent litigation, but not allow them to prohibit others from using whatever it is they patented. Instead of a game of "its mine because I made it and no one else can claim exclusive ownership of it", it becomes "its ours because we made it and no one can exclusive ownership of it". I don't know ***** about our patent system, but it seems so easy to just modify the old form of our current patent and add it to our existing forms.

      This would allow both proprietary and open source devs to be safe in their livelihood.
      • init100, on 04/09/2008, -0/+1You can achieve almost the same effect by publication of your "invention", at least in theory.
  • Kingoftherings, on 04/08/2008, -9/+87I agree, a lot of these software patents are stupid, namely MP3.
    • 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?
      • dkoon, on 04/08/2008, -20/+1Most likely they are getting those to protect themselves, I don't remember Microsoft ever really sued anyone for their patents.
        • 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?
        • whitenerdy92, on 04/08/2008, -0/+1Haha sarcasm right?
      • 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.
    • 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.
    • Me1000, on 04/08/2008, -1/+3I tried to digg up your comment, but then I get an error telling me that I need to reload the page and that the digg was not saved. So I happily reload the page, then I try to digg the comment up again, and IT GIVES ME THE SAME ***** ERROR!

      THEN I GET THE SAME ***** ERROR AGAIN WHEN I TRY TO SUBMIT THIS COMMENT!

      :-)
  • DiggLive, on 04/08/2008, -47/+5I'm not against software patents outright, but I do believe they shouldn't apply to non-profit. If I make a new technology, I should at least get paid for my work if Microsoft or Google uses that work. It's like letting a local small business coffee shop use your song for free, but making Starbucks pay for the right to use it.
  • z0mbie2099, on 04/08/2008, -3/+99Most software patents prevent the progress of technology as a whole.
    • mdude85, on 04/08/2008, -6/+1What about other types of patents?
      • 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
  • 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.
    • 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.
    • 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.
    • init100, on 04/09/2008, -0/+1In the civil law system, the courts purely interpret the written laws. In the common law system, courts sometimes decide on matters not specified (or specified vaguely) in the law, and effectively writes case law, which is then used as a basis in future cases. Or did I get it wrong?
  • stubear, on 04/08/2008, -25/+2Perhaps Open Source companies need to find a new business model, hmmm? Why should they get special consideration concerning patents? I'll grant that there are some stupid software patents granted (amazon.com 1-click anyone?) but there are others, such as algorithms for MP3 that are wholly warranted. Patents foster innovation by allowing companies to recoup R&D costs. OSS innovations such as Apache and TCP were done at a time when the internet economy didn't exist. What have they done recently that wasn't the result of making closed technology open? There are no OSS R&D costs to recoup so of course they don't like the idea of patents keeping them from implementing ideas they didn't spend time developing.
    • mdude85, on 04/08/2008, -15/+0I agree; there shouldn't be a double standard applied to software patents with regard to open source vs. proprietary source companies...especially when a hefty number of proprietary source companies are innnovating at speeds greater than their open source counterparts.
      • klco, on 04/08/2008, -1/+5Name 1 (besides Apple)
        • mdude85, on 04/08/2008, -5/+0Adobe
          • mdude85, on 04/08/2008, -5/+0LOL -- to whoever Dugg my comment down, let's see The GIMP approach even a fraction of the functionality of Adobe Photoshop. Everyone who doesn't have their blinders on knows that Adobe is a major innovator in multimedia software and that open source products just cannot compete in this market. If you want to talk about web browsers, then be my guest and I'll be happy to concede that Firefox is clearly superior to the best versions of IE and Safari.
          • hayzeus, on 04/08/2008, -0/+1While I'll grant your Photoshop versus Gimp point, 'Adobe' is not exactly a hefty number. Note also they themselves are open-sourcing a number of key pieces of IP (PS not among them, alas).
            You might also want to consider actually reading the article before posting. There is no double standard for OSS.
          • mdude85, on 04/08/2008, -0/+0"'Adobe' is not exactly a hefty number."

            The guy asked me to name one, so I did. I could name a dozen.
        • mdude85, on 04/08/2008, -4/+0EA
      • lamiaconfitor, on 04/08/2008, -0/+1because they PAY PEOPLE. therefore you PAY TONS OF MONEY. some people like the option, and if that option exists, it is not a bad thing. I have absolutely no reason why you think it would be a good thing if an open source code comes along, and some random company takes that code to the patent office to get credit for it. is that the way you would want your intellectual property treated if you shared it with others in good faith? Or, maybe you are a sith lord, who knows.
        • mdude85, on 04/08/2008, -3/+1Huh? I never said it is a good idea for proprietary source companies to steal code from open source companies. I said that open source and proprietary source companies should be held at the same standard when they invent a software. There's no reason to punish proprietary source companies to make them accountable for their actions just because they make money from their invention.
      • javaroast, on 04/08/2008, -0/+4Let's give a warm digg welcome to mdude85, the very first software patent fanboy. Welcome mdude!
        • mdude85, on 04/08/2008, -6/+0Are you high? I am not a software patent fanboy. I said that open source companies need to be held accountable at the same standard as proprietary source companies. If you are an open source fanboy lacking foresight, you might construe this to mean that software patents are a good thing. Any person with all his marbles knows these two things have nothing to do with each other.
          • 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."
        • mdude85, on 04/08/2008, -2/+0"1. 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."

          It would seem as if knowledge and personal and professional experience in the area of patent law are mistaken for fanboy-type behavior. LOL. Don't give me that "it was a joke" crap. Your responses are bordering on ridiculous.

          This is NOT a case which will throw out software patents altogether. To assume that is to neglect the many precedents and statutory allowances that helped build the rules and regulations governing software patents.

          Stubear was wondering why OSS companies should be given special rights to develop software compared to proprietary source companies (I don't know why you decided to put that in quotes, as if you think it's ironic for some reason). I wholly agree with him. There is no reason OSS companies should get special rights OR should have the software/business methods patent system thrown out altogether on account that their softwares are not profit machines per se.
          • javaroast, on 04/08/2008, -0/+2Personal and professional LMAO!!! Try trollish and misguided. This is a case where business methods/software patents are being reevaluated. It's got NOTHING to do with giving OSS companies special rights... that's not the way the law works. The court is likely to end up reconsidering State Street Bank & Trust Co. v. Signature Financial Group Inc. which started business method patents. If they did reconsider that, it would allow tossing out business method patents and possibly, just possibly software patents as well. And this specific case is really not the end of the road. The Supreme Court would likely have to agree to take the case before anything would happen to business patents. Seems like your point is to troll against open source, but in doing so you miss entirely what this case is about. Read the case filings you'll see. It's making the claim that the patent is a abstract solution to a mathematical problem that should not be allowed to be covered by a patent.
        • mdude85, on 04/08/2008, -1/+2Thanks for clarifying State Street for me, LOL. I'm not trying to troll against open source. I'm on an open source browser as we speak. Although I despise that POS GIMP, I gave it a chance. I understand entirely what this case is about. I understand fully the arguments both within Courts and the Patent Office in re statutory bar on software patents. Trust me on that.

          But please realize, and I'll only repeat this one more time: Just because I agree with Stubear that open source companies should not fight to lift the statutory reqs of so-called software patents only to improve their standing against proprietary source, does NOT mean that I am trying to fight open source. And it also does not mean that I am somehow addressing case law, which I'm not. I'm commenting on the nuances of the issue.

          In fact, I never, ever took the opinion that a software patent is a good idea. If you think I did, I pray you find it for me and repeat it below. I am trying to fight for the equal and fair compromise between OSS and so-called "closed source" (I never liked the verbage "closed source" because it implies that no one can see it or improve upon it, which is false). If you lift the statutory reqs of software patents, you may have won a victory for OSS, but in the long run, there will be quite a few negative consequences for proprietary source systems owned by companies who have invested in what some might consider the fair protection of their IP. EVEN if the logic behind establishing a software patent is flawed in the first place.
          • hayzeus, on 04/08/2008, -0/+1No -- you've improved the situation for everybody, INCLUDING proprietary software vendors, and ultimately consumers. The issue has nothing to do with OSS (well, only tangentially), save that an OSS vendor is filing a brief in this particular case. And I dugg you up.
      • hayzeus, on 04/08/2008, -0/+2There is no double standard implied -- RTFA for ***** sake.
        • mdude85, on 04/08/2008, -2/+0I never said the article implied a double standard. I was responding and agreeing to Stubear's suggestion that there is a double standard not relating to the article. Instead of telling me to RTFA, perhaps you need to read the sequence of thread responses before digging down my comments in some sort of strange blind rage.
          • hayzeus, on 04/08/2008, -0/+2"I agree; there shouldn't be a double standard applied to software patents with regard to open source vs. proprietary source companies". Nobody implied that a double standard SHOULD exist, save you and Stubear. It's not like your postings magically go away, you know...
            Software and business method patents are primarily a windfall for IP lawyers -- having been in the software dev business for 20 years and having my name on a couple of these, I can pretty much assure you that that they are largely meaningless from a business standpoint, save as:
            1) a pre-emptive, but not terribly effective move against litigation,
            2) an imaginary asset to bring to the table during a potential acquisition.
            Otherwise useless, save to feed the parasites. And I'm not digging you down, by the way.
    • vertexoflife, on 04/08/2008, -0/+12Patent =/= copyright, you can still make money off of something copyrighted.
      • whiteeagle131, on 04/08/2008, -0/+1You were trying to say Patent != copyright, or maybe Patent copyright ;)

        /kidding
    • 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?
    • 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'
    • Myztry, on 04/08/2008, -1/+3*****. Competition fosters research and development. The simple ability to present a new or improved product as markets naturally saturate fosters development. Copyright prevents verbatim copying in an industry where something as simple as 'first to market' reaps massive rewards.
      Patents do nothing except establish a fiscal heirachy under the fake concept that ideas can't be idependantly developed in parrallell. Ideas don't even need to be invented. All too often they are just purchased by companies who have done little or no research, or development.
    • lamiaconfitor, on 04/08/2008, -2/+1right, why wont open source communities just rape people like a respectable company? /sarcasm
      • JQP123, on 04/08/2008, -2/+1Have you seen what Red Hat charges for a Linux support contract?
        • lamiaconfitor, on 04/09/2008, -0/+1they arent standing up for Red hats rights, they are standing up for OPEN SOURCE.
    • nylrym, on 04/08/2008, -0/+1Wrong! Software has previously been unpatentable as a matter of law. Mathematical Algorithms (e.g. all software, just ask any Computer Scientist or Information Theorist) were explicitly exempted from patentability. Only specific devices of which software is a 'component' are supposed to be patentable. The point being that programs are not devices. Treating them like they are is just silly. For instance - the algorithm for MP3. By the written patent laws, that's arguably unpatentable because it's an algorithm - a set of mathematical steps. Patents are meant to protect inventions, not ideas.
      • mdude85, on 04/08/2008, -0/+1The interpretation of State Street v Signature Financial and also Arrythmia 958 Fed 2nd, as it stands currently is that an invention which encompasses ideas or mathematical constructs must be proven to be useful or possess some level of "real world" value or outcome. (a.k.a. asserted use). Sooo, this means that a patent can protect a software invention if the software invention is truly an invention as defined by Patent Office (or Courts).
    • sporad1c, on 04/08/2008, -0/+1Open Source and the entire concept of sharing is quite possibly the best part of the internet. So ***** off for not supporting it.
  • DangerCollie, on 04/08/2008, -1/+47About freaking time. Software patents are from the devil.
  • 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.
    • 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.
      • mdude85, on 04/08/2008, -6/+1That's not how patents work. You can discuss the Mandelbrot set.
    • Blitzenn, on 04/08/2008, -7/+1??? Think of it in a different light. You don't have a lot of money nor access to it. Without patents, your invention, code whatever, would just be subverted by someone with more money than you. You could not ever do anything to stop the rich guy from stealing your business because he simply can and will. That is exactly what the patents are out there to do. To give you a set period of time to make a go of your business without someone else stepping all over you simply because they have more cash. It levels the playing field between the haves and have nots. Removing the ability to create a patent will only empower corps to get richer and individuals to get poorer. Simple economics.
      • 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.
      • init100, on 04/09/2008, -0/+1"It levels the playing field between the haves and have nots."

        Given the costs of patent applications and especially the costs of patent litigation, I'd say that this isn't really true. You need to have a lot of money (in the hundreds of thousands of dollars) to pursue an infringement suit. If you haven't got the money, you can just watch the big corporations ignore your patent and use your invention anyway.
  • wukillabee, on 04/08/2008, -10/+3IMA PATENT DEEZ NUTS!
    • lamiaconfitor, on 04/08/2008, -0/+5no, Dr Dre has a "COPYRIGHT" on "deez nuts"... jeez, another one.
  • Meekus, on 04/08/2008, -0/+9I wonder what the computer science expertise level is of these patent granters?
    • lamiaconfitor, on 04/08/2008, -0/+6Their expertise is in defining "Novelty," a term I believe applies to sex toys.
    • 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.
    • mdude85, on 04/08/2008, -4/+1Everyone who examines patents for the Patent Office has at least a bachelor's degree in science, math or engineering. People who examine patent applications for so-called software patents tend to be people with bachelor's or advanced degrees in computer science or computer engineering. Lawyers do NOT examine patent applications, they litigate them.
  • 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.
    • Jexie, on 04/08/2008, -0/+1I think it definitely results in very lengthy lawsuits but look at SCO vs. IBM. IBM has proven their case and absolutely decimated SCO in the process. Something is going to come out of lawyers and experts pouring over millions of lines of code, but the lengthy legal process is a great way for the big guys to squish the much less funded little guys. Though I am glad to see IBM squish SCO like that so maybe it wasn't the greatest example....
    • 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.
      • mdude85, on 04/08/2008, -2/+0Actually, the Patent Office gets a large fee from every application filed, but gets a relatively small fee from applications that are granted a patent. Granting patents willy-nilly is not in the interest of the Patent Office, for a variety of reasons. Anyone who litigates patent applications will know that an application is rejected several times before finally being granted a patent, if at all.
        • Jexie, on 04/08/2008, -0/+1When I read that it just makes me think the patent system is actually even more useless than what people are accusing it of being. So now most of the process is to generate more revenue for the patent office? Wonderful.
      • Talled20, on 04/08/2008, -3/+0That is the most idiotic statement I have ever read. By that logic there would be no patents.

        Consider this: Company A develops invention A and files a patent.
        Company B develops invention B two years later with the same features of invention A and files a patent.

        In this case the patent office would reject invetion B under 35 USC 102 showing that invention A fully discloses all the claimed features of invention B. This happens quite often. Using your logic, neiter invention A or B should be patented since two different people independantly came up with the same idea.

        All that is required to obtain a patent is to come up with something that no one has done before, i.e. it is novel and unobvious. And you have to file an application before someone else with the same idea files an application, this is not always true (see below). An idea DOES NOT have to be innovative to obtain a patent.

        Second, the PTO is a first to invent system. So if 2 people come up with the same idea and both file patent application, the person who came up with the invention first will get the patent, even if they filed after the other person. This is called an interference, where the involved parties get to prove when they actually came up with the invention.

        LEARN about the system before you go spouting off about problems that don't even exist!!!
        • init100, on 04/09/2008, -0/+1"Second, the PTO is a first to invent system."

          If Microsoft and others get it their way, it will soon be a first to file system.
    • bieber, on 04/08/2008, -0/+1You don't patent code, you patent ideas.
      • eclecticdave, on 04/14/2008, -0/+0Actually, no you don't. You patent a *concrete implementation of an idea*, together with a bunch of "claims" originally designed only to allow you express what other implementations should be considered too similar to yours to be independently patentable.

        e.g you patent a door-bolt mounted horizontally, sliding left to right, you "claim" that your application also covers door-bolts mounted vertically, sliding up and down. You can't (or shouldn't be able to) patent the *entire concept* of "stopping a door from opening using a piece of metal, wood or other material". Yet there exist today software patents that are just as broad as this.
  • 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.
    • cougar618, on 04/08/2008, -4/+2Eh, RedHat is a pretty cool guy, stands up for Linux and doesn't afraid of anything.
  • 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 :
    • mdude85, on 04/08/2008, -2/+0Actually, reading case law, you'd be surprised at the aptitude at which the Courts are able to apply the law in re complex mathematical, engineering or computer science constructs. Supreme Court justices are very smart. You don't need an advanced degree in computer science to be able to make a determination on precedent.
    • JQP123, on 04/08/2008, -1/+2"... although most of those old farts don't know the difference between the internet and plumbing :"

      And all the young farts only know the internet and software --- they think they have it all figured out but really don't know the difference between economics and plumbing. It's hard to say which is worse.
      • sirhomer, on 04/08/2008, -0/+1The economics of the yesterday are not the same as today. Software and computers have the ability to remove the purpose for an economy and most forms of human labor. What we are talking about is bigger then capitalism or national governmental bodies.
        • JQP123, on 04/08/2008, -0/+1And I thought that sort of rhetoric died with the "dot com" bust of nearly a decade ago.
          • sirhomer, on 04/08/2008, -0/+1I don't know why you think it's some sort of rhetoric. It's reality. Today less then 1% of the population works to feeds 100% of it. In reality, farming is done with machines and automatons. So is manufacturing. It is all driven by software. When software gets better, the need for humans and human labor is diminished.
          • JQP123, on 04/09/2008, -0/+1We now have around 20 million illegal immigrants in the US. Are they all here to do software?

            This same sort of rhetoric was used in the late 90's ("the old economics don't apply anymore") in order to obtain venture capital funding for internet startups. The bust that followed in 2000-2001 pretty much proved that the economics really hadn't changed at all.
          • sirhomer, on 04/09/2008, -0/+1"The bust that followed in 2000-2001 pretty much proved that the economics really hadn't changed at all."

            That is nonsense. The "bust" effected all industries, not just technology. And we see that the Internet as a commerical entity is still alive and well, and continues to grow. And software is one of the biggest industries in the world. Venture capitalists are still funding tons and tons of Internet startups.

            And that has nothing to do with anything I was talking about. Formal automata theory can prove that humans are automata. Automata similar to humans can be created to accomplish all forms of human labor. This is way way above the simple notions of primitive technology and economic and legal ideas.
          • JQP123, on 04/10/2008, -0/+1"Venture capitalists are still funding tons and tons of Internet startups."

            Yes, the difference is that since "the dot com bust", they've been basing their funding decisions on the "old economics" --- the kind that supposedly no longer applies.
          • sirhomer, on 04/10/2008, -0/+1@JQP123

            I don't think Twitter, YouTube, MetaCafe, Songbird's developer and other companies with literally no business plan are good examples. Yet they didn't seem to have problems getting venture capitalist funds (or in the case of YouTube, a company that was losing at least $1 million dollars per month, being bought by Google for $1.5 billion dollars). Or lets not forget Steve Ballmer of Microsoft vowing to purchase "20 Internet startups per year", and bidding on Yahoo for $40+ billion dollars (which is another example of a computer with a blurry business plan and financial record).

            Where are these "old economics"? Is shrink wrapped software the future? Is a business plan more valuable then an idea? I don't think so.
  • DontGiveADamn, on 04/08/2008, -1/+3Let's level the playing field, all companies should release their source code so we can see if there was any patent violations. By the way I'm patenting these words and if any of you use them I will sue you ass off.
    • Ravatar, on 04/08/2008, -0/+1Don't you mean copyright them?
    • protogenxl, on 04/08/2008, -0/+3I am Patenting the "Internet Troll Thought Process" so pay up or GTFO
  • JQP123, on 04/08/2008, -9/+2The first line of the article: "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."

    Q: Who earned the most money from Open Source software and services last year?
    A: IBM

    Q: Who is the largest holder of software patents in the world?
    A: IBM

    Q: Who is the 2nd largest holder of software patents?
    A: Microsoft

    Q: Who is the company that contributes the most software related jobs and the most software related revenue to the US economy?
    A: Microsoft


    A quick review suggests that software patents don't seem to be hurting the economy too much at all.
    • d03boy, on 04/08/2008, -0/+5Now relate quality of software and let's try this again
      • JQP123, on 04/08/2008, -3/+1I'm sure IBM would argue that it is related --- see the first and second questions.

        Red Hat is the one who chose to frame the argument in economic terms rather than quality.
        • mdude85, on 04/08/2008, -0/+0For IBM, it is related. In the market that IBM operates, software companies developing products lacking in quality are quickly filtered out. In these markets, IBM doesn't have to pander to fickle consumers as the Microsoft Windows Group or Apple do. Industries who operate on IBM software need the best software they can get, and price is usually not an object.
      • mdude85, on 04/08/2008, -0/+1Can't speak for Microsoft, but IBM makes some pretty amazing software in realms that won't even be explored by the open source community for the next 5-10 years. Imagine an open source group developing 24-7-365 mission-critical data management for a company of 150,000 employees operating on hundreds of server groups simultaneously in 40 countries. IBM makes that kind of software, and it's not marketed to consumers so you never hear about it.
        • localzuk, on 04/08/2008, -0/+1I'm pretty sure Sun and Redhat make similar systems. However, the thing is, a small company wouldn't be able to build a system with similar concepts in it due to the software patents held by IBM. Therefore, competition is being stifled and so is innovation, as a system that does something similar but has extras can't be built by anyone except IBM.
        • JQP123, on 04/08/2008, -0/+1"Therefore, competition is being stifled and so is innovation..."

          If IBM couldn't stop others from simply copying their work, they may not have spent the time and money developing it in the first place. Companies would still be waiting for Open Source to get around to it ... maybe, if they feel like it. So where's the innovation in that?
          • localzuk, on 04/08/2008, -0/+1Huh? Copying verbatim is one thing, but preventing people from making a system that does the same thing - which is what a patent does, is a completely different thing. If a person can't make competing products, what reason to innovate is there?
          • JQP123, on 04/09/2008, -0/+1"If a person can't make competing products, what reason to innovate is there?"

            "Innovation" is not about creating a competing product with the same functionality. This is called "cloning" and is *exactly* what a patent is designed to prevent.
        • mdude85, on 04/08/2008, -1/+0"Therefore, competition is being stifled and so is innovation, as a system that does something similar but has extras can't be built by anyone except IBM..."

          Well, a system that does something similar but has extras would be an example of a patentable system. I'm not for or against software patents, and there are a lot of reasons software patents stifle innovation. But one reason that software patents do NOT stifle innovation is that patents (even a good number of patent applications not yet granted patents) are available in the public realm. This means that the software and the methods for making and using it are available for others to see. Imagine if IBM was able to hide away every aspect of its software from ever being revealed. THAT would be stifling innovation. The patent contract is protection of your invention in trade that the invention be public knowledge. People often forget that part about patents.
          • localzuk, on 04/08/2008, -0/+1So an independant group of programmers wish to create a system, but part of the system is covered by a software patent. They then have to negotiate with IBM in order to build a system which competes with IBM. Can you guess whether or not they will succeed in getting a license?
          • mdude85, on 04/09/2008, -0/+0"So an independant group of programmers wish to create a system, but part of the system is covered by a software patent. They then have to negotiate with IBM in order to build a system which competes with IBM. Can you guess whether or not they will succeed in getting a license?"

            Well, yes and no. Because IBM has a software patent, the means to make and build that software is publically available. If the independent group of developers wants to build upon the IBM patent by improving it, that's perfectly fine -- encouraged, actually. In fact, that independent group is then able to file a patent application for their software, even if it incorporates (references) the IBM patent. Obtaining the license to the source code is another matter entirely not under the umbrella of the patent system. IBM may or may not license that software, but even if it does and the independent group files a new patent, IBM's existing patents are not voided.

            Like I said earlier, the patent system as a whole is set up to foster innovation, although, in the software realm, things become muddied because it's difficult (impossible) to improve upon a mathematical abstraction.
    • sirhomer, on 04/08/2008, -3/+2Where are you getting this idea that IBM is the largest holder of software patents? It is true that they are largest holder of patents in general, but I don't think you can make the assumption that these patents have much to do with software.
    • Megatog615, on 04/08/2008, -0/+1Lots of IBM's patents are used in defense of Open Source. Hence the name "defensive patent." This is one of the main reasons why the patent system, at least for software, needs to go. It now serves no use to anyone other than to bully others.
    • 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.
  • dualboy24, on 04/08/2008, -5/+3Software Patents help keep Creative in business. Apples paying them more annually than they are making on product sales.
    • SlickNic, on 04/08/2008, -1/+6Got any links to back that up, I would love to read them.
      • dualboy24, on 04/10/2008, -0/+1http://images.americas.creative.com/docs/fy07.pdf
        Thats Creative's Fiscal Year 2007 from http://www.creative.com/corporate/investor/reports ...
        Let me quote page 2 "Net income for fiscal 2007 was $28 million, compared to a net loss of $118 million in fiscal 2006. Net income for fiscal 2007 included a $100 million paid-up license from Apple for its use of the ZEN Patent in its products"
        • dualboy24, on 04/10/2008, -0/+1Wow 3 diggs up since posting this. I hope I can get into the positive, but I suppose that this stories too old for people to care anymore, I should have posted their 2007 fiscal info first, stupid me for thinking people were not too lazy to do a simple google query or a basic search before voting... I suppose thats why the worlds so messed up, people vote without doing research.
  • 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.
  • al11588, on 04/08/2008, -13/+0Redhat Linux- Fail
    Ubuntu-Fail
    OSX- BIGGGGGGGGGGGG Time Fail

    Windows -FTW
  • Youssif, on 04/08/2008, -0/+13Thank you Red Hat.
  • protogenxl, on 04/08/2008, -0/+2"35 U.S.C. 101: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."

    I guess it is the word "process" that makes software patents legal.
    • bieber, on 04/08/2008, -0/+2Nope, it's even more ***** than that. You can't actually patent a software process in the US, rather, you patent "A stock computer loaded with software to...", which the patent office has decided constitutes a new type of machine :/
  • Blitzenn, on 04/08/2008, -7/+1And how is anyone supposed to make money off software under that tact? Open Source is great as long as there are people getting paid to code out there too. As soon as there is no way to earn a dollar on code anymore, there won't be any decent code anymore. You are relying completely on someone to write this stuff in their spare time for free for you, what do you expect? Personally I think the 'Shareware' philosophy is much better.
    • 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.
    • srg13, on 04/10/2008, -0/+1He's right - how will those 'intellectual property firms' be able to make money off other people's hard work if they're not allowed to be patent trolls anymore?
  • bsmang, on 04/08/2008, -1/+7Patenting software code is mostly like patenting horizontal brush strokes.
    • Quenlin, on 04/08/2008, -2/+3I patented cheesy remarks, you owe me 5c.
  • anshuman, on 04/08/2008, -1/+1wise Redhat :) Thanks.
  • serif69, on 04/08/2008, -8/+2I fail to see the validity of this argument. Software is product just like anything else. But instead of being made from physical materials, it is made from code. There is no difference between a patent for the way a steam engine works and a patent for the way a search engine works. Arguing that copyright protects coders is naive. Suppose you spent 100 hours writing code for a particular piece of software that is of your own design, and you publish the software. Now suppose that a competitor of yours spends 100 hours writing different code that mimics your design, and he publishes his software. Even if you copyrighted your code, it doesn't matter, because your idea has been stolen and built using a different method, and is therefore not infringing upon your copyright. Had you patented your idea instead of copyrighting the code, you would have legal ownership of the idea.
    I will grant that many software patents are ridiculous, and should have been disallowed under the "non-obvious" rule, but that should be taken up on a case-by-case basis. To plead a case that you missed your opportunity to patent something because you were being generous shows that you lack foresight, and will fall on deaf ears in a capitalist economy. Patents are there to protect people who file them, not people who didn't care to.
    • fokov, on 04/08/2008, -0/+1I agree that the main point that the first OS developers didn't file for patents isn't a reason that the system should be destroyed. One thing that most of the communists don't like is that software is a product/property like any other and should be protected as such. What would the benefit of corporation A spending 1 million dollars to develop a piece of software, just to allow their competitor to spend 100k to copy it? The system is in place to force corporation B to pay A for its time and money invested in the product thus creating the desire and protection for innovation, if and when they prove there is a violation. I also agree with the abstract clause, however, anything and everything can be "abstract" The problem is that BS patents were given out and now people are paying for those mistakes.
  • 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.
  • jessehadden, on 04/08/2008, -2/+3In academia, software development is considered a branch of mathematics. Why do Congress & the courts repeatedly fail to see it as such?
    • 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.
  • Quenlin, on 04/08/2008, -2/+1That's the problem, I could patent countless methods of setting a variable, and sue everyone.
  • whitenerdy92, on 04/08/2008, -2/+1Truthfully, there should still be some patents, because without patents, the world as we know it would crumble to the ground. I fear (I can't believe I'm saying this) that Microsoft may fall, and if this happens too soon, then we've got a world without Windows. Everything runs on Windows. We'd be screwed. Digg me down if you must, but you know I'm right!
    • Temujin12, on 04/09/2008, -0/+0Dugg down. And no, you're wrong. People will generally user whatever works. MS just happens to work and to be what people are familiar with. If that no longer holds true, people will move to whatever works.

  • NedSlider, on 04/08/2008, -0/+2dugg in support of Red Hat taking a stand. Just a bit of common sense is all that needs to be applied.
  • rollerboy, on 04/08/2008, -1/+1Software developers that understand laws?.... These people are super human.
  • michelsonmorley, on 04/08/2008, -0/+2On the bright side if they lose, I can start patenting ideas. I think I'll start with Newton's equations, Maxwell's equations, and then relativity equations.
    • srg13, on 04/10/2008, -0/+1I've got dibs on addition - I can see it now: "Method and process for adding two or more numbers"
  • Herolint, on 04/08/2008, -0/+1I think the ironic thing about all this is that open source software is providing the exact kind of thing that patents were instituted to promote, yet patents are standing it the way of progress.
  • Khast, on 04/08/2008, -1/+1Personally, I say, if you want to patent software, the source code must be patented, rather than the function.

    GUI, Mouse Pointer, Scroll Bars should not be allowed to be patented, whereas the actual code to create them should be.

    Innovation could come from that, as it would force different methods of thinking.

    Also I think there should be a minimum amount of code required for a patent. And absolutely no generic blanket patents which cover any possible way of making "networking" "multiplayer" ect.
    • se1zure, on 04/09/2008, -1/+1the look and unique functions of these items should be allowed to be patented. I always find it interesting how apple created a new look to the dock for leopard, and in days it was copied by so many linux themes it was ridiculous. Apple hired and payed designers, and linux users basically stole their ideas without investing a dime. I think this is a case where apple should be payed royalties. Sure, linux should be allowed to have a dock, but straight up mimicking the exact look and functionality of one people are supposed to pay for is theft imo.
    • ditoa, on 04/09/2008, -0/+1You don't patent source code, you copyright it and that is fine. If somebody wants to write a mouse daemon that makes the cursor change color when you highlight the confirm button they can do so and copyright the code and license it how they want to. However they should not be able to patent changing the mouse cursor for such a reason. Such things would stop anybody being able to write software without having to license the IP from the patent owner. Just a simple administration application could violate hundreds of patents and make it impossible to develop. This will lead to a situation where only the top two or three companies will be able to buy the license from the patent owner (or buy the patent) and will have a strangle hold of the IT world progressing. The fact that anybody can develop applications is what makes the IT world progress. A kid or an old woman or anybody can take GCC and start writting applications. If only a few companies could produce software computers would be worth much less to us than they are today.
  • se1zure, on 04/09/2008, -1/+2i'm all for free software, but wouldn't closed source software generally better for the economey, because it is usually made by hired professionals, meaning it creates more jobs, vs those who write open source software for fun or as a hobby or for donations (I am obviously not referencing redhat his, which is one of the few exeptions.)
    • 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.
    • ditoa, on 04/09/2008, -0/+1This isn't so much about free software (although it has huge implications for free and open source software). It is about helping to stop something that could destroy the IT world. Software patents do not work in their current state, and personally I believe it is not possible to create a system which will work. The IT world moves far to quickly. Something you design today can change so quickly in our globally connected world. Patents for physical things such as cars work differently as you cannot prototype and test as rapidly as you can with software. If you design something in software and attempt to patent it that means nobody else can do what you are attempting to patent while it is in the process of being patented. Getting a patent can take years. If it is then rejected that can be years of something being delayed. It just doesn't scale to software. Big businesses want it to work but it doesn't and if they push for it they will end up getting shafted in the long run.
  • SubjectiveC, on 04/09/2008, -0/+1This wouldn't happen if people like Einstein still worked at the patent office. But nooo, he had to go on and win a Nobel prize, change the world, and give away the field of physics to geniuses who would have otherwise happily done their jobs patenting stuff.

    /jk
  • Observer001, on 04/09/2008, -0/+1I love seeing freedom of information issues discussed. May this get ten thousand diggs.
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