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Australia Open Source Patents Software News

Software Patents Good For Open Source? 150

Posted by Unknown Lamer
from the they-say-it-like-it's-a-bad-thing dept.
schliz writes "The Australian software patent system could be used by open source developers to ensure their inventions remain available to the community, a conference organized by intellectual property authority IP Australia heard this week According to Australian inventor Ric Richardson, whose company came out on top of a multi-million dollar settlement with Microsoft in March, a world without software patents would be 'open slather for anybody who can just go faster than the next person.' Software developer Ben Sturmfels, whose 2010 anti-software-patent petition won the support of open source community members such as Jonathan Oxer, Andrew Tridgell, and software freedom activist Richard Stallman, disagreed."
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Software Patents Good For Open Source?

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  • by Anonymous Coward

    "Jonathan Oxer, Andrew Tridgell, and software freedom activist Richard Stallman, disagreed." *Click link, ctrl-f stallman, oxer, tridgell*, no matches found. Stop wasting my time with links that are inappropriate to the sentence they claim to be linking about.

    • "Jonathan Oxer, Andrew Tridgell, and software freedom activist Richard Stallman, disagreed." *Click link, ctrl-f stallman, oxer, tridgell*, no matches found. Stop wasting my time with links that are inappropriate to the sentence they claim to be linking about.

      I think that this bit from the summary:

      "Software developer Ben Sturmfels, whose 2010 anti-software-patent petition won the support of open source community members such as Jonathan Oxer, Andrew Tridgell, and software freedom activist Richard Stallman, disagreed"

      was trying to say that Ben Sturmfels disagrees, and that back in 2010 Jonathan Oxerm, Andrew Tridgell and Richard Stallman agreed with Ben Sturmfels about something else. A sort of 'appeal to authority by association'.

  • In theory... (Score:5, Insightful)

    by Junta (36770) on Saturday May 19, 2012 @06:04PM (#40053745)

    In theory I could see how the argument could work, but in practice, the patent system is both prohibitively expensive and incredibly slow. The cost and delay renders it mostly only usable by big players. Exacerbated by big companies having gigantic, practically unknowable portfolios at their disposal (many companies have a practice of making employees try to patent anything they can think of, regardless of plans to actually implement them, leaving a company with gobs of patents no one even really knows about....

    • by Anonymous Coward

      Yes, the article says to get in the mud with the bullies. Surely you'll get dirty, probably beaten.

      • Not only that, but open-source gets to use the 'cheap' route for patents, namely that of "prior art". Code it, push it to github or wherever, and done.

        Or is the idea that you want to prevent others from using the technique you used in the code elsewhere [ie, make it kind-of-open-source]? If so, open source really can't match the deep pockets of any of the significant companies that you probably want to sue, and that leaves just the little fish [the 1 - 50 employee firms that, you know, gives most people j

    • Re:In theory... (Score:5, Insightful)

      by PPH (736903) on Saturday May 19, 2012 @07:00PM (#40054013)

      And copyrights mess with this in that they protect the actual work and establish the underlying idea as being prior art (from that point on) and thus no longer patentable.

      Patents, aside from being slow and expensive, create a kind of virtual property that the big players* can buy, sell, and otherwise securitize. And that game has been fixed for quite a while, making it cost prohibitive for the little guy to do anything more than sell his property into the system to those who can afford to trade it.

      * The big players resemble Goldman Sachs more than Boeing or Caterpillar. They don't actually create value anymore so much as trade title to value that is 'within the system'. That is, ideas for which negotiable paper has been generated by the patent office.

    • by rolfwind (528248)

      Add in the "First to File" that IIRC the USPTO adopted a while back over the traditional first to invent (a wholly bureacratic self convenience in order to simplify their own lives and no one else who is actually a productive member of society), and I think it's actually a net negative.

      • "First to file" doesn't mean what you think it does. "First to file" is only a system of determining who gets a patent in the situation that multiple people file patents on the same idea. It doesn't invalidate prior art or anything else that already exists in the "first to invent" system.

        • by Alex Belits (437) *

          Except prior art is always ignored unless brought up in some massive lawsuit, and "patent MAD" prevents such lawsuits from happening.

          • Re:In theory... (Score:5, Insightful)

            by TheRaven64 (641858) on Sunday May 20, 2012 @06:19AM (#40056039) Journal

            If two people file a patent almost the same time, with first-to-invent, you have a long drawn-out court battle over who invented it. With first-to-file, the second filing will typically include evidence that it was invented before the first disclosure and therefore invalidate the first, so no one gets the patent.

            This is as it should be for things that are sufficiently obvious that two people invent them almost simultaneously: remember that the point of patents is not to reward you for being clever, it's to provide an incentive for disclosing your invention. If someone else would disclose it a week later anyway, or all interested people know it already, then there is no reason to provide the incentive.

            • by Alex Belits (437) *

              And if one person published something, then five years later someone else patented it, the latter will still be able to successfully threaten the former (and whoever else used his work) because it would take a huge, costly lawsuit to prove that prior art is actually prior art. There is no "complain to USPTO, get patent invalidated" process, everything has to go through the courts, no matter how obvious.

              • Yes there is, as long as it happens before the patent is granted. Preliminary patents are published and prior art is solicited. This typically takes up to 3 years. You can use the preliminary patent in court but, in a first to file system, the fact that the infringement happened before the preliminary patent was granted will get the case summarily dismissed. If the prior art is provided to the patent office before the final patent is granted, then the final patent will not be granted and, if there is en
                • by rmstar (114746)

                  Yes there is, as long as it happens before the patent is granted. Preliminary patents are published and prior art is solicited. This typically takes up to 3 years.

                  Which means that you have to keep reading patents so that you know that you have to do something to get a patent dismissed. It also means that if you do not do that, you may be sued, and may have to hire an attorney, burn money, etc, etc, for nothing in particular. That is an unnecessary and expensive burden on the innovator, and yet another prett

                • by Alex Belits (437) *

                  No one in his right mind will voluntarily sift through all idiocy that comes to USPTO and watch for everything that tries to lay claim on his (or known to him) work that was published long ago, and never went anywhere near patents. It's usually not until the patent is granted and its proud owner is sending threatening letters, that anyone can become aware of the mistake that patent examiners made, and even then the people who are being threatened may have no way to convince the originator of the prior art t

            • by EzInKy (115248)

              If two people invent the same thing at the same time why doesn't the USPTO just consider the thing obvious and not worthy of patent protection?

    • Re:In theory... (Score:5, Interesting)

      by ghostdoc (1235612) on Sunday May 20, 2012 @02:14AM (#40055527)

      The problem, as usual, is not with the technicals, but with the business.

      Software Patents solve a business need; that of investors to feel reassured that the thing they're investing in is worth the investment they're making.

      An investor usually has no technical chops, so cannot determine if a software startup is doing something clever, innovative or hard-to-replicate. They're buying a stake in some Intellectual Property, and need to know that the property they're buying is 'real'. The first question asked of a software startup is 'what's your protection strategy for your IP?', because if there's no protection there's nothing 'real' that they can invest in. Patents are currently a good answer to this question.

      This view is changing, slowly. Lean Startup http://theleanstartup.com/ [theleanstartup.com] (amongst others) is beginning to get people used to the concept that execution is more important than ideas, that IP is not a static thing that remains constant and can be owned like a piece of land. A business's IP should be changing the whole time, old ideas and executions discarded behind it as they become irrelevant in a changing market, new executions being constantly tested against the current market.
      With this worldview, investors invest in people, not ideas, and the whole patent system becomes irrelevant.

      Of course, as long as there's a valid business model for patent trolling then there'll be a set of businesses using that model to make money. But it becomes more and more visibly broken and hopefully we can get the politicians to see that.

      • Re: (Score:2, Interesting)

        by unixisc (2429386)

        +5 insightful!

        The idea of not having any software patents is attractive, since if one is an inventor/developer and one comes up w/ an idea on his/her own, it's ridiculous that one should be penalized if someone else had patented a similar idea. Until one gets to see the person who first patented a similar idea.

        As you point out, if software patents did not exist, investors would feel less comfortable financing the person who comes up w/ the idea, since before long, any number of other people will come u

        • by Znork (31774)

          As most software incorporates many functions, any of which may or may not be patented, patents are a net liability for any startup. Even if they may have one or two, chances are high that their idea cannot be usefully brought to market without infringing on tens to hundreds of other patents.

          As an investor I'd worry a lot about any of the owners of any of those patents deciding to end my investment.

          It would be possible to build a non-confrontational system that accomplishes what some want the patent system t

          • by ghostdoc (1235612)

            As most software incorporates many functions, any of which may or may not be patented, patents are a net liability for any startup. Even if they may have one or two, chances are high that their idea cannot be usefully brought to market without infringing on tens to hundreds of other patents.

            Remember that a patent just enables you to have a courtcase. It doesn't enforce itself. You can infringe on as many patents as you like while you're poor, you only ever have to worry about them when you've got enough money to be sued.

            Which is why the original idea in TFA is a bit crap, as most FOSS projects don't have the kind of money or organisation that can be sued for large lumps of cash, so they can effectively infringe whatever they like.

            And it's also why patents are useless for protecting small compa

      • I't s not the business people driving this, it's the lawyers. The lawyers are acting as a parasitic business on computer programming, siphoning off time and resources which would have otherwise gone into advancing software and money which would have otherwise gone to developers startups and consumers.

        If you go to any of these conferences or read op eds and especially blogs you'l see it's lawyers who are attempting to defend software patents, going to conferences and it's lawyers who are employed in the

  • I am not sure what an 'open slather' is, but it wasn't that long ago in the US that there were NO software patents. Is this what the software market was like back then? Was there more or less innovation compared to now? I am interested if anyone knows of a useful comparison, especially after the ridiculous Microsoft v. Motorola case
    • a world without software patents would be 'open slather for anybody who can just go faster than the next person.'

      I am not sure what an 'open slather' is, but it wasn't that long ago in the US that there were NO software patents. Is this what the software market was like back then? Was there more or less innovation compared to now? I am interested if anyone knows of a useful comparison, especially after the ridiculous Microsoft v. Motorola case

      As if madness ruled everywhere outside the US where there are NO software patents.

  • by dryriver (1010635) on Saturday May 19, 2012 @06:14PM (#40053801)
    ...that large multinationals tend to "Mine the Harbour" when they patent things. What does that mean? It means that Big-Capital dont't patent "One Particular Approach to the Problem". They typically patent THE BEST & MOST EFFICIENT APPROACH TO SOLVING A PARTICULAR PROBLEM + THE 3 - 6 MOST LOGICAL WORKAROUNDS TO THE METHOD. So when you try to find a way around a particular "PATENTED BEST METHOD", you wind up slamming into a minefield of "PATENTED LOGICAL WORKAROUNDS TO THE BEST METHOD", which the patent owner doesn't even put to any use. Those patents are intended to MINE THE HARBOUR, so nobody else's ship can get in or out of the harbour without running into a PATENT MINE. ------ There are often workarounds to even those Patents. But finding them can involve a lot of costly R&D + time consuming TRIAL AND ERROR. And even then, your PATENT-CLEARING WORKAROUND TO PATENTED WORKAROUNDS may be a very unelegant, complex, slow or unreliable method. --------- If it's Hardware you are developing, your hardware may wind up costing 2 - 3 times what Sony, Nokia et cetera pay for their method. If its software you are developing, it may take 18 months instead of 8 months to deliver you software to market. ---------- Either way, "Mining the Harbour" typically causes you to jump through extra R&D hoops, spend extra money, take extra time, deliver to market slow/late, and deliver with a much slimmer potential profit-margin because of your increased cost. -------- Your solution, as a result, may stand no chance of competing with the solutions of the "PATENT-PREDATOR BIG BOYS", and may not be worth delivering to market in the first place. ------ In this case, healthy competition in the market fails, because there is NO GOOD/EFFICIENT ALTERNATIVE APPROACH to what the BIG BOYS have "mined" with pre-emptive patents.
    • For example?
      • by citizenr (871508)
      • by hairyfeet (841228)

        A good one would be MPEG-LA because their patents are so vast and cover damned near every step in the process that it would be extremely unlikely one could make a decent encoder or decoder without running into the mines.

        One also has to consider that the present as well as the future is gonna be based around portable devices and there is only so many ways to do things without wasting more power. After all what good would be finding a way around the H.26x patents if your method that avoids the patents cause

    • by dkf (304284)

      Did someone patent using paragraphs and you decided to work around that by TYPING WORDS IN CAPS? It won't work...

  • by gl4ss (559668) on Saturday May 19, 2012 @06:20PM (#40053835) Homepage Journal

    if you want to ensure it's free - why the fuck just not release it?

    just release the damn thing. it's prior art after that.

    if you assemble a patent portfolio and assign them to an "open source" company, that company might be bought and the patents used to force forks to die. that's the only thing the patents could be used apart from using them in suits against commercial competitors(just purely offensive or for defensive if getting sued by said commercial competitor).

    the business week article in one of the linked articles is dead btw. some guy who netted 300+ mil from having a patent thinks sw patents are good? news?

  • by Bob9113 (14996) on Saturday May 19, 2012 @06:25PM (#40053851) Homepage

    a world without software patents would be 'open slather for anybody who can just go faster than the next person.'

    Well, yes -- that is pretty much the essential nature of "Open." Anyone who has the skill, time, and energy can build whatever they want, even if it is based on someone else's work. It has its ups and downs, but saying the software world would be more Open if it were more restrictive is an internally inconsistent statement. It is logically self-contradictory.

    There are those who believe that using the system against itself is better than changing the system. Some believe the GPL is better than would be the elimination of software copyright. I actually fall into this camp (though I do believe in reducing the strength and duration of patent and copyright). But it would not be more Open. Open has some shortcomings, and that may lead a rational person to believe that absolute Open-ness is less efficient than some degree of Closed-ness. But that does not mean you can redefine Open to mean partially Closed. Just say you believe in a balance between Open and Closed. It's OK to believe in shades of gray.

    Not every question demands an absolutist answer, but rational discourse does rely on words like Open having a clear and unequivocal meaning in a given context. Dilute your hard-core ideology, not the terminology you use to describe it.

  • Missing freedom (Score:2, Interesting)

    by gmuslera (3436) *

    The problem with patents is that it at the core cuts one human freedom, the freedom to think, and open source is all about freedom. Given one problem, you won't be able to solve it in the ways you think if those paths are being taken by patents all around the field. If i want to go to the second floor, i could build stairs, or an elevator, climb, and a few more options, if all those solutions (or close/similar enough) are patented, you can't solve that problem, no matter how you indepently got that solution

  • by Hentes (2461350) on Saturday May 19, 2012 @06:54PM (#40053979)

    Here is the point made:

    “If a group of open source collaborators can secure a patent, it can choose to grant a royalty-free licence to the open source community to use it just as open source software is licensed,” Bates noted.

    “This secures the invention for public use immediately. In other words, it blocks the ability for another party to patent that invention and prevents that other party from exploiting it for commercial gain.

    “Secondly, it secures the open source community the right to continue using the patented invention subject to the terms of the patent licence.

    “Thirdly, open source patented innovations reside on patent databases and thus form part of the same public record, which makes the public record more comprehensive and useful to the community at large.”

    None of these techniques benefit open source, they only try to limit the damage done by software patents, fighting fire with fire.

    • It also ignores one of the fundamental aspects of patents - that is a patent holder of licensee DOESN'T necessarily have the right to practice his invention because it may merely be an improvement on another invention which is patented by another party.

      Definition: A patent is a contract between the inventor and the government in which the government grants the patent owner the right to prevent others from practicing his invention in exchange for a full and public disclosure of the best way to practice the i

    • by mgiuca (1040724)

      Well put. I just want to add that while the first two are just fighting fire with fire, the third point is actually a public benefit of patents.

      The stupidity of that third argument is that it is a public benefit of patents for virtually all endeavours except open source. Open source is already open by definition. There is absolutely no additional public benefit to having an invention described in a deliberately confusing, twisted and generic legalese document, when you already have the complete working sour

  • Not a story (Score:3, Interesting)

    by kegon (766647) on Saturday May 19, 2012 @06:57PM (#40053995)

    The core of the summary is this:

    Patent attorney Michael Bates of 1Place agreed that developers could use the patent system to ensure their inventions remained open source. “If a group of open source collaborators can secure a patent, it can choose to grant a royalty-free licence to the open source community to use it just as open source software is licensed,” Bates noted.

    What a joke! Let me guess, Bates wants people to pay him to check patent applications for OSS. Prior art invalidates a patent. Simply publishing or releasing your software open source makes it prior art therefore preventing someone from claiming an "inventive step" - the usual requirement for a patent. Save your money.

  • This patent nosense is making lawyers get a lot of money as parasites of software development. We developers must work in improving AI to make the lawyers each time less necessary, so any CEO, CFO can use the expert system and minimize the need of lawyers. Same for patents. With clear and strict rules (also aimed at using only patents only when extremely necessary), less litigation would be needed.
  • by rollingcalf (605357) on Saturday May 19, 2012 @06:59PM (#40054003)

    ... "for anybody who can just go faster than the next person" would be a good thing for software.

  • by Anonymous Coward on Saturday May 19, 2012 @07:07PM (#40054047)

    All the arguments so far on the benefits of software patents come from the rich.
    A man who was award millions of dollars from patents says they are good. Government that makes millions of dollars from patents say they are good!
    How does a small , non rich, developer do this, or small open source project get patent protection.
    It cost 1000's upon 1000's of dollars just to put in applications. (Not including the legal mumbojumbo and hoops you need to jump through.)
    Then when you've blown 80% of your development budget on government fees, the Apple, Oracle or Microsoft types come along and steal your idea anyway, and now you need millions of dollars to fight them in court. (In the mean time they throw their patents at you, ie you used a "software button" or "bouncing icon" etc, so they claim millions of dollars in damages from your $2 company)
    Software patent are killing many open source projects and smaller development, limiting innovation in general.
    No one can write even the simplest of program without breaching someones so-called patent.
    Software should be protected under copyright law, in that the code itself, and the graphics are protected. If someone rewrites software to do exactly the same thing but without using any of the original code then that should be good.
    Patents should be only for mechanical physical devices, and even then should only be for a couple of years to give the inventor time to utilise. If they don't then bad luck, its open for all!
    In reality small developers have to simply ignore the patent system and hope they aren't targeted by Apple and co if they happen to create something profitable or too popular!

    • Having used up all my karma points yesterday, I can only second this. With one clarification: even for mechanical physical devices contemporary patent system is a scam designed to protect rich crooks / big corps, protect them from competition of small inventors and rip small inventors off their work. Newest "achievments" in patenting-everything-under-the-sun field seem for me even to be designed to block progress, so estabilished big fat corporation would do nothing (except of "cost cutting" a.k.a. external

  • by WombleGoneBad (2591287) on Saturday May 19, 2012 @07:32PM (#40054149)
    It is as if someone is trying to create the impression there is an ongoing 'debate' about about the pros and cons of software patents. There is no debate. Software patents are harmful nonsense. and this is the general consensus amoung people who write software (supposedly the people that these patents 'protect'). I'm sure you could scrape up some guy who swears blind that smoking cured his sinus problems but that doesn't mean an article 'Smoking - good for your health?' should hit the front page.
  • Even if it were possible to keep track of all software patents the difficulty of writing any program without infringing some patents becomes exponentially harder the more patents there are. Large corporations might still think they can win in this "game", not by not infringing patents but by suing other companies, but even this is becoming a more and more pointless, tyring and expensive strategy. Basically, it just keeps companies from innovating and ties up their resources.

    And then, of course, there are ot

    • Why does increasing the number of patents make it exponentially harder to avoid infringement?

      It's think it was linear at worst, and perhaps sublinear as because the more you work to avoid patents, the more efficient at it you would become.

      • Checking is not the big problem - even if its makes it impossible for small firms to write computer programs since the minimum number of patent checker to be able to follow the patents applied to will be too much too handle for a small 1-man firm. Sadly programs like Minecraft that was initially written by 1 person will probably never see the day of light if everyone would do what you suggest.

        The bigger problem are code.
        Because then you have to rewrite the program to go from A to B. Without patents you can

  • Moralization (Score:5, Insightful)

    by eulernet (1132389) on Saturday May 19, 2012 @08:54PM (#40054513)

    Sure, software patents are good for open source, like HIV is good for fidelity.

    What sickens me is that people still try to sell their poor ideas with moralization.
    Using categories like "good/bad" or "nice/evil" is the typical way it's used.
    This way, if you disagree with my opinion, you are "bad/evil", while I'm "nice/good".

    BTW, I think that software patents are a huge waste, both of time and money.
    All this energy is spent on trying to defend ideas, but ideas are unlimited and patents are limited.
    Instead of trying to protect your ideas, try to find new ideas !

  • by sturmy (1869828) on Saturday May 19, 2012 @09:57PM (#40054737) Homepage
    I (Ben Sturmfels) am saying is that software patents are bad for the whole software industry and the Australian public. Software patents inhibit innovation for *both* proprietary software and free software/open source businesses. Getting rid of software patents is something the entire software industry should be working towards.
  • later in his talk, he explained how War Is Peace, Freedom is Slavery, and Ignorance is Strength.

  • ...Isn't fraud good for business?

    • Fraud extortion murder kidnapping nepotism bribery are all good for business.. Why can't people understand that's what good for business is good for society????
      • If it weren't true, then no one would do it. Look at Mexico. Look at Somolia. Now those are countries where everything has been cleared and businesses can operate with total freedom, and those are the cleanest, safest most technologically advanced countries with the two largest economies in the world.

        If businesses want something, in this case software patents, then let them have it . Nothing is worse than non-business people trying to dictate what business should and shouldn't have.

  • by dbIII (701233) on Saturday May 19, 2012 @11:29PM (#40055071)
    Keep the software patent disease contained within the USA and preferably eliminate it there at some point. The only advantage software patents give over normal copyright is as an extra weapon for those with large legal departments against those that don't. That skews the playing field towards those that are already well established and stifles innovation - which is exactly the opposite of what patents are supposed to do.
  • by ABoerma (941672) on Sunday May 20, 2012 @01:52AM (#40055465)

    "Any headline which ends in a question mark can be answered by the word 'no'"

  • We just need to be patient, and keep publishing good code.

    It takes decades to teach Government new tricks. At this point, it is barely aware that software exists. But, it is learning. It just takes time and lots of informed input.

    Judge Alsup (the current judge in Oracle vs Google) is an example for our future. Once Government is seeded with individuals that understand software, we will finally see changes that make sense.

    It is inevitable that eventually the Patent Office will acknowledge Free and Open Source Software (FOSS) as a partner. Both have the same general objective: To Advance Art and Science. Patents are an ancient tool. Patents are a poor tool for software. Patents are optimised for the physical world. FOSS is a modern tool that is optimised to properly handle societies need to advance the art and science of Software.

    In the field of software, FOSS is a superior solution. FOSS provides all the goals of patents without the enormous costs of patents. FOSS provides: Publication; Implementation; and Motivation. FOSS creates stable and enduring infrastructure. All cheap and self organising. And without a crippling burden on the legal system.

    The end-game is certain. Eventually Patents will not constrain FOSS. Probably we will see a statement along the lines of: FOSS has an automatic license to all patents. Therefore FOSS can not be sued for patent infringement. The only bit of uncertainty is the time-frame. It could be decades. It could be centuries.

    The future for proprietary software is less simple. Proprietary software appears to be in need of patents. Proprietary software doesn't Publish. Society can't inspect Proprietary implementations. Society can't learn from and extend Proprietary software. And, any Proprietary software infrastructure can vanish in the blink of a vendor's eye. There are good reasons to keep Proprietary Software shackled to the Patent Office.

    Miles

  • I love the way software patents advocates present dystopian hypotheticals as a form of argument when we already KNOW what the world looks like without software patents.

    It's a world of Turing Machines (1936) and von Neumann architecture (1945), machine language and assembly language (1951), compilers (1952) and loops and switch and if / then statements and LISP (1958) and packet switching (1960s).

    It's a world with operating systems and databases and word processors and spreadsheets and browsers a

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