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The Meaning of “Open Source”: Patented by Microsoft


Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog, Inc.
Principal Lecturer, PLI Patent Bar Review Course
Posted: January 9, 2011 @ 11:01 pm

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It is impossible to search for technology related news online anymore without being inundated with the days wave of open source news stories that are seemingly proliferating faster than a human engineered bacterium, which by the way is patentable subject matter in the United States. In any event, “open source” has become the new “cyberspace” or “technological age” or even “telecommunications.” All of these terms are certainly understood by every reader, but part of the beauty of the term is that it can mean all things to all people, without ever really conveying a standardized meaning that everyone can agree with; much like the term “compassionate conservative,” which was so frequently used by the Bush Administration. What is a “compassionate conservative”? I really have no idea, but it sounds like a good thing and something to aspire to! After all, how could being a compassionate anything be bad?

So what does “open source” mean? The term is nebulous at best and confusing at worst.  The term, however, has undeniably become associated with the easy to understand but always misleading term – “free.” Certainly everyone knows the meaning of “free,” a term so universally understood that men (who are from Mars) and women (who are from Venus) both accept the term as meaning the very same thing. Even children understand the meaning of “free,” which leads to a plurality of interesting ironies.

When discussing the metaphysical nature of the term “free” with children adults will almost to a person attempt to educate by explaining that nothing in life is truly free, which based on my experience is about as definite a truth as are death and taxes. Nevertheless, these same caring, rational-thinking adults who explain that nothing in life is every truly free all of the sudden, when confronted with the possibility of obtaining open source software, rationally conclude that functioning, useful software should be free, or at least freely available, whatever that means.  As far as I can tell, the meaning of the term “free” as it is associated with open source and software more generally relates to the desire of those writing code to be able to ignore the underlying intellectual property rights of others.  Something of a copy-cat anarchy.

A number of years ago IBM announced that it was going to open up hundreds of its patents to open source developers. Sun Microsystems followed suit, opening up over a thousand of its patents. Others, like lemmings, opened up their patents as well. Nevertheless, some in the open source industry, which still sounds like an oxymoron to me, were upset by the fact that more patents were not donated to the public. The primary argument seemed to be that these patents were obviously worthless anyway, so why not just donate them all? A slightly different strain of a similar argument finds free software advocates complaining that the patents opened to the public were of little value and do not represent the opening of core technologies.

Apparently the free software community has never heard of or simply doesn’t understand the meaning of the phrase “never look a gift horse in the mouth.”  But then again, is this really about software or it is about something deeper?  It is my personal belief that most free software advocates will never be happy until everything is open source and nothing is patented, which I suspect is the ultimate goal of many in the movement; the destruction of the patent system as a whole.

I just cannot see the wisdom involved when companies open their proprietary assets to the open source movement. Perhaps the goal is to gain market acceptance, which is a rational only mentioned in passing by those who are opening up patents. But let’s work through this one, shall we? Give away rights to obtain market share — isn’t that a little like losing money on every sale but making it up on volume?

Lying under the surface of the open source debate is little or no discussion about whether open source is a good thing. Perhaps we should rewind this debate and start at the beginning and ask whether open source is the path that we want to take. Why MUST everyone have an open source strategy? What is wrong with a proprietary strategy? It seems that embracing an open source strategy wasn’t the wisest thing for Sun, who has seen revenues plunge.

Of course there is a real Mexican standoff between propriety software and open source software. Open source projects may actually infringe upon software patents held by Microsoft and other proprietary companies. Similarly, many proprietary software products and services may infringe upon the patents held by the open source community. What!?!?! Open sourcers holding patents? Yes, they do, and lots of them. Of course they claim never to have any interest in using them offensively, but open source believers remain uneasy nonetheless. As an aside, if open source companies preach about the evils of software patents and tell you that you shouldn’t have them then why would they have them? If they are good for some open source companies, even if just for defensive purposes, shouldn’t they be good for everyone?

As the open source movement grows Microsoft, which is always the 800 pound gorilla in the room, may consider bringing patent infringement suits.  It seems that is the worry of at least one open source group who claims that it is particularly troubling that Microsoft, along with a group of tech companies that includes Apple, is seeking to purchase the Novell patent portfolio. According to the Open Source Initiative, the Microsoft coalition seeking to purchase the Novell patent portfolio has “no incentive to support open source as a competitive alternative to proprietary software.” See OSI Position Statement.

Apparently, Novell was committed to open source and that makes it acceptable to the OSI that they owned patents, but the fact that patents might be used for a competitive advantage by a patent owner, and used to stop infringers from infringing is troubling. So troubling that they are urging the German government to investigate.  See Open source campaigners urge investigation of Novell patent sale and Novell’s Microsoft patent sale referred to regulators.  So it seems that the position of the OSI is that those who are anti-software patent and committed to open source are the only ones who can own patents without necessitating an investigation by the government.  Breathtakingly self-serving if you ask me.

In any event, wouldn’t it be ironic if the movement developed at least in part to prevent monopolization of the software industry in Redmond wound up being responsible for handing Microsoft rights to every program ever created? Perhaps it is Microsoft that is behind the open source movement. Who knows, but several things seem abundantly clear, namely that nothing in life is every truly free, and the true meaning of the term “open source” may be “patented by Microsoft.”

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Posted in: Anti-patent Nonsense, Companies We Follow, Gene Quinn, IP News, IPWatchdog.com Articles, Microsoft, Open Source, Software

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

26 comments
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  1. Of course Open Source is quite explicitly not the same thing as free software, which is why people like Richard Stallman, a proponent of free software, opposes open source. The Open Source Initiative was a market-friendly attempt by various profit-driven companies to capitalize on the success of various free and open software initiatives that had created such things as Linux, Apache, Mozilla Firefox, and other prevalent, robust, and useful pieces of software that were becoming more widely used and respected. Simply put, by Opening up the Source code to users, who could modify the code within the terms of the license (they rejected Stallman’s GPL license, and opted for a license that allowed commercial exploitation of open source products) software developers could (theoretically) achieve a few efficiencies. One was that, like the early consortium of automobile manufacturers who in the early 20th century created a large patent pool so they could share within their ranks their standards and products, they would reduce the costs and risks of potential litigation (like the 9 year battle between Selden and Ford over the internal combustion engine), and achieve greater consumer confidence with greater interoperability of parts. Another benefit is that the community of users could take part in the development process, as it had with Linux and Firefox, creating better, more stable products in the process. Open Source products would also be sold, and are, achieving profits by selling software packages at various tiered levels (for instance), through advertising placement, or with service plans, or with other value-added benefits that enticed consumers to pay some money for something they perceive as valuable, rather than relying on government-sponsored monopolies to set artificial price points. The founders of the OSI were not opposed, generally, to patents, and makers of open source software are often also patent holders, and have long been so, even as auto manufacturers who joined the early Association of Licensed Automobile Manufacturers patent pool agreed to cross-licensing of their patents to avoid patent suits and their costs, successfully curtailing that expense since 1915, even while encouraging innovation in the automobile industry. The OSI was an attempt to achieve these sorts of results in software, not to make software “free” as you claim.

  2. >I just cannot see the wisdom involved when companies open their proprietary assets
    >to the open source movement.

    I think you need a different mindset.

    It depends how you value the “proprietary assets” and what you see as being your proprietary assets.

    The bottom line is that software is ceasing to be a valuable asset, support services can generate as much revenue as software. The whole open source movement works on the principle that money should be made from making open source software, but rather than from reselling the same work time and time again in a profiteering manner it should be made by providing something of value in exchange, typically support services or improvements to the software.

    If a company makes 60% of its revenue form support and 40% from licensing, then there is profit to be made by expanding their customer base through removing licensing cost if that will grow it’s support revenue significantly. The key issue here would be that once established in this position, the company would become unassailable.

    Small software companies get crushed by big ones, their IP assets (stolen) bought for next to nothing and there is no point in trying to compete in a commercial world against megaliths who are renown for dirty tricks.

    There are now quite a few large companies that are big enough to be safe from being robbed by the mega companies and who may end up being crushed in long drawn out sales battle, it is about market share, and open source can deliver this in spades. One day we will see a company go open source at the right time, pre-empt the end of licensing get into the support business and make it easy for their software to be taken into the cloud, become virtual, run on platforms never before envisaged and to actually address customers needs rather than marketing requirements, that company will sacrifice a small amount of profit for a few years in exchange for avoiding decline and achieving virtual immortality.

  3. One common misconception that I see over and over again, including within this article: Free software refers to the *license* (the alternative is proprietary software), while Open Source refers to the *development model* (and this alternative is closed-source software).

    Software can be under a Free license but still be Closed Source (wouldn’t remain closed for long tho), or can be developed as Open Source but still remain proprietary in licensing (as the software for which Microsoft often advocates).

  4. Bruce-

    You say: “The key issue here would be that once established in this position, the company would become unassailable.”

    I don’t disagree that there can be value in expanding a market base, but I do disagree with your above comment, at least if I am understanding it properly. It seems to me that in the software business there are always others out there who will provide service for less, so if you give the software away for free and then make money on support you can realistically only be certain that you will make support money for the duration of the initial contract. At the end of the initial contract the company will look for others, and one way for new actors to get into the market is to offer a lower price. I also never underestimate the ability of a manager to do the wrong thing when it comes to IT. Saving a few bucks and moving to a new supplier of software and support is not always the best financial decision, but the manager can show initial savings and then the cost overruns or lack of productivity due to down time is on someone else’s department or spreadsheet.

    -Gene

  5. Lefty-

    Where you make your mistake is when you say that software can be developed as open source and still remain proprietary. That is actually not correct and strikes at the very heart of the problem. In many (if not most) open source regimes those who take code for their use have to allow others to come along and take any and all of the code they themselves have created as add-ons to that which they originally took. When by your taking action you allow other community members to take what you create you have conclusively defeated a proprietary model. In a proprietary model you create and can prevent others from taking what you created. At its core that is the exact opposite of open source. So you really cannot have an open source development model that continues a proprietary licensing regime. What you can do, however, is exercise proprietary rights against those who are not a part of the community, but that is a far cry from any realistic proprietary rights.

    -Gene

  6. @Gene
    “The term is nebulous at best and confusing at worst. ”
    It’s actually quite well defined, and was defined even before the term ‘open source’ was in usage. Whether or not some licenses are FOSS or not is debated, but in most cases (by actual license usage), it’s quite clear. It has gained some usage outside of software, where the principles sometimes may not be easy to apply.

    “Certainly everyone knows the meaning of “free,” a term so universally understood that men (who are from Mars) and women (who are from Venus) both accept the term as meaning the very same thing.”
    In the English language, free can mean both gratis and libre, so that’s not quite true. Free speech is quite different from free beer.

    “I just cannot see the wisdom involved when companies open their proprietary assets to the open source movement.”
    Again, I ask you to study up on loss leaders, which have been around for a long time, and are probably as common as your local gas station. If money can be made from sources other than selling licenses, than it may prove a more viable business method.

    “As an aside, if open source companies preach about the evils of software patents and tell you that you shouldn’t have them then why would they have them? If they are good for some open source companies, even if just for defensive purposes, shouldn’t they be good for everyone?”
    This is quite simple. If Red Hat could write US patent policy, they would make software not patentable. They don’t see software patents as good, but when they exist, it’s better for the FOSS community to have enough to protect FOSS.

    “So it seems that the position of the OSI is that those who are anti-software patent and committed to open source are the only ones who can own patents without necessitating an investigation by the government. Breathtakingly self-serving if you ask me.”
    In this case, the problem is that a large portion of patents (and thus patent power) is shifting from the biggest threat in many arenas to a large company with a poor track record with competition law to the large company itself. One company having the ability to legally threaten all serious competition away through non-competitive means is not really well liked by most economists. So, opposing a major shift of power in favor of a company that had is widely labeled a monopolist already is entirely self serving?

    “That is actually not correct and strikes at the very heart of the problem. In many (if not most) open source regimes those who take code for their use have to allow others to come along and take any and all of the code they themselves have created as add-ons to that which they originally took.”
    What you are describing is copyleft. However, not all FOSS licenses are copyleft. Apple has a proprietary operating system build largely upon FOSS, and their business would be described as proprietary.

    @David
    “Of course Open Source is quite explicitly not the same thing as free software, which is why people like Richard Stallman, a proponent of free software, opposes open source”
    He doesn’t oppose Open Source, he just doesn’t claim to be part of that movement.

    “Simply put, by Opening up the Source code to users, who could modify the code within the terms of the license (they rejected Stallman’s GPL license, and opted for a license that allowed commercial exploitation of open source products)”
    The OSI did not reject the GPL, and both the OSI and the FSF consider licenses that do not allow commercial exploitation to be non-FOSS.

    “The founders of the OSI were not opposed, generally, to patents”
    Perhaps not to patents in general, but the actual founders of OSI are at least not fans of the current system.

  7. @Bobby:

    Please read Stallman’s article “Why Open Source Misses the Point of Free Software” and note he does oppose Open Source, in its current iteration.

    GPL is an acceptable OSI-certified license, but the repository of OSI licenses include a growing number that have more explicit permissions to profit by selling tokens.

    Agreed, they distrusted proprietary methods as the solemeans of distributing software, but companies that joined the OSI did not all suddenly give up their patents.

  8. He doesn’t oppose open source, which would be seeing what they do as bad. He sees what they do as not good enough because they don’t push the freedom element.

    Both the OSI and FSF have extensive lists of licenses (which mostly overlap), and both lists contain licenses that carry fewer restrictions than the GPL. However, the GPL and LGPL are both listed on the “License that are popular and widely used or with strong communities” list and saying that the OSI or the open source movement as a whole ‘rejected’ the GPL is plainly untrue.

    I think the best way to describe the difference between the free software and open source movements is that free software sees things mostly in ethical terms (as in freedom has an intrinsic value) while open source sees things more as a practical matter (as in this bazaar-style development model works well)

  9. Bobby-

    Why does it not surprise me that you are on the wrong side of the open source issues as well?

    The fact that you think “open source” has a well defined meaning demonstrates that you either really are not familiar with the industry or that you are willing to extremely oversimplify the matter. The reality, whether you choose to acknowledge it or not, is that the term “open source” does not have a singular definition. If you are going to engage in an open source regime you had better read each and every word of the license you are agreeing to because they are not at all uniform. They do all, however, claim to be “open source.” So I am right, once again. Using a single term to refer to many different licensing regimes causes ambiguity and uncertainty.

    In terms of me studying up on loss leaders, get real. When dealing with service loss leaders are a sure way to go out of business. If you lose money on every transaction you simply cannot make it up on volume, that is simple, true and unassailable. You want to pretend that you can give software away for free and then sell service and somehow lock users into your services. What do you do when they leave you and go with someone cheaper? What do you do when the person they go with who is cheaper is using the software you created? If they are a part of the “open source” regime that you are then they can simply use the code you created without making any payment to you.

    Open source is a great way for folks to start in the business because they can copy what others have created for free (i.e., without a royalty payment or fear of litigation). The trouble becomes that others can copy what you create for free as well. All that happens is a march to zero where everyone competes on the same code based on price. If you think open source is a great model you should take a look at the revenues for Sun. Talk about killing a business!

  10. @Bobby:

    Here’s a quote from Stallman regarding Linus Torvalds:

    “In terms of ideas, free software and open source are as different as could
    be.

    The term “open source” was promoted in 1998 by people that did not want to
    say “free” or “freedom.”

    Supporters of open source (which I am not) promote a “development model” in
    which users participate in development, claiming that this typically makes
    software “better”

    The fact that Torvalds says “open source” instead of “free software” shows
    where he is coming from. I wrote the GNU GPL to defend freedom for all users
    of all versions of a program. I developed version 3 to do that job better
    and protect against new threats.

    Torvalds says he rejects this goal; that’s probably why he doesn’t
    appreciate GPL version 3. I respect his right to express his views, even
    though I think they are foolish. However, if you don’t want to lose your
    freedom, you had better not follow him. ”

    So, since he says he is not a supporter of open source, I assume he is an opponent.

    I agree, the term “rejected” was too strong, but they did seek to move toward embracing commercialization of non-proprietary systems, and away the ethical arguments for free software. They wanted to make money, compete with MS and others, and provide robust alternatives, which they have.

    As for me, I’m in favor of any alternative forms of commercializing products outside of the IP-Industrial Complex, and consistent with free markets.

  11. “If you are going to engage in an open source regime you had better read each and every word of the license you are agreeing to because they are not at all uniform.”
    That doesn’t mean it doesn’t have a clearly defined definition. That means that the definition is relatively broad compared to a specific license. Think dog as opposed to St. Bernard or Chihuahua. With the ‘compassionate conservative’ example, the problem lies in not having a set method for differentiating a compassionate conservative with a normal conservative. Was Bush one, was Reagan one, was Bush Sr. one? You are going to get a radically different yes or no when you ask that question to different people. However, if you ask whether the the Linux is open source, you will get yes, yes, yes.
    If your only concern is to contribute and make and distribute FOSS yourself or to have a greater ability to avoid vendor lock-in, just knowing that it is FOSS may be enough to make a decision, even if you haven’t read the specific license. Being familiar with the license is definitely useful in many situations, and if you wish to mix proprietary software or use patents against others using a derivative product, then knowing the specifics is certainly important.

    “If you lose money on every transaction you simply cannot make it up on volume, that is simple, true and unassailable.”
    That is true, but nobody said that you should lose money on every transaction. Service at a loss probably usually isn’t a good idea (the only exception I can think of is an attempt to bankrupt a smaller competitor, which probably doesn’t bode well with competition law anyway), but your competitors generally want to make a profit as well, so they will probably not be able to sell service at a loss for a long time and remain in business.

    “What do you do when they leave you and go with someone cheaper?”
    You compete or you die, like in businesses where IP doesn’t play a large role. You either do it cheaper, do it better, or find some other way to get an important value to your customers that makes your business model remain viable, or you get out of business.

    “All that happens is a march to zero where everyone competes on the same code based on price. If you think open source is a great model you should take a look at the revenues for Sun. Talk about killing a business!”
    At least part of the decline of Sun was due to decline of SPARC and the bursting of the dot-com bubble. Red Hat, on the other hand, has been doing quite well for a while, and their business is actually far more purely FOSS than Sun was. Of course, even the best business model may not last forever, and businesses going away happens even in healthy markets.

    @David
    “So, since he says he is not a supporter of open source, I assume he is an opponent.”
    That would be an incorrect assumption. Not supporting is a neutral action and does not imply opposition. Stallman is very particular about many things and is reluctant to endorse anything that he has any apprehensions towards.

  12. Bobby-

    In taking issue with my correct observation that open source has no singular meaning thanks to the disparate terms of the various licensing regimes you say: “That doesn’t mean it doesn’t have a clearly defined definition. That means that the definition is relatively broad compared to a specific license. Think dog as opposed to St. Bernard or Chihuahua.”

    Allow me to observe that you prove my point. There is a vast difference between a St. Bernard and a Chihuahua, and there is just about that same different between the open source regimes. Thus, claiming there is a singular or readily accepted definition of “open source” is absurd.

    In response to me asking what you do when someone else offers your code cheaper, because after all they can cut and paste your code since it is “open” and not proprietary, you say: “You compete or you die, like in businesses where IP doesn’t play a large role. You either do it cheaper, do it better, or find some other way to get an important value to your customers that makes your business model remain viable, or you get out of business.”

    It would just be easier to have proprietary software so you don’t have to bid against yourself, which is exactly what you are doing when your competitor copies your open source code and offers it for less than you.

    -Gene

  13. “There is a vast difference between a St. Bernard and a Chihuahua, and there is just about that same different between the open source regimes. Thus, claiming there is a singular or readily accepted definition of “open source” is absurd.”
    Are you saying that ‘dog’ also lacks a singular, readily accepted definition as well? There is for all practical purposes a singular, readily accepted definition of open source. Where your concern lies is not that it lacks a clear definition. The problem is that the clear definition by itself is not always specific or precise enough for your purposes or your clients’ purposes.

    “It would just be easier to have proprietary software so you don’t have to bid against yourself, which is exactly what you are doing when your competitor copies your open source code and offers it for less than you.”
    That is true, but there may be other benefits that you won’t get with proprietary code. For example, you may get code contributions from customers that don’t want to maintain their own fork, resulting in a better product. You may be able to convince customers to use your product specifically because by using a FOSS product, they are less subject to vendor lock-in.

  14. Bobby-

    You finally get it. Thank goodness! The generally accepted definition of “open source” is not specific or precise. So at best that makes the term a generalized approximation that dies not in and of itself convey meaning. You and others throw the term around as if it has a particular meaning, which it does not, as you have aptly admitted. I doubt you meant to prove my point, but thank you.

    -Gene

  15. Gene,

    This isn’t something that I can answer here, or not at least without loosing my mind. While Word Press has a fairly good comment editing module, it’s no where near as good as the main post editing module. So give me a bit of time, and I’ll put together an answer.

    Wayne

  16. You had a point, but I don’t think you expressed it well, and you appear to not be grasping that problem has multiple dimensions to it at least somewhat akin to the difference between accuracy and precision in measuring systems. There is a definition for open source. It is mostly objective, with some fringe licenses being in a gray area. It does convey a meaning. However, for some circumstances, that meaning by itself is not precise enough to convey all of the information desired.

    For an end user or an organization using software internally, just knowing that something is ‘open source’ very well may be all they need to know, because the restrictions to FOSS licenses all have to do with redistribution. For them, the level of precision is adequate. However, if a company intends to use FOSS in combination with their own derivative proprietary software and patents, then just knowing that it’s ‘open source’ likely leaves a lot of important questions unanswered. They have to know what clauses the license has towards derivative works and patents and decide if they find the terms acceptable.

    Whether the term is adequately precise or not depends on the context. In contexts where it isn’t precise enough, I generally try to specify which kinds of licenses, or at the very least use qualifiers like ‘some’ or ‘most’, although not everyone does.

  17. Gene,

    Here’s my response.

    Wayne

  18. Ever since Intellectual Ventures finally started suing, I no longer believe the claims of any entity that it is obtaining patents for “defensive purposes only.” That applies not only to NPEs and large corporations, but also to the open-sourcers. Ultimately I suspect the open-sourcers may find patents to be too useful a tool to NOT use them in litigation … though they’ll probably come up with some kind of “morally-justifiable” rationalization for eventually entering the fray of patent litigation.
    http://www.generalpatent.com/media/videos/patent-suits

  19. Misleading is the presumption that the word ‘free’ is universally understood. Merriam Webster lists no less than 15 definitions for the word. The Oxford English dictionary lists 13. To assume that the term is universally understood and thereby besmirch open source for using the term inequitably is a straw man argument.

    Gene must look through patents all day long and must surely believe that programmers do patent searches in order to find solutions to technical problems. This is the only logic I can imagine to support his notion that open source developers are ‘copy-cat anarchists’.

    Nevertheless, people will flock to and benefit from Open Source software and never bat an eye. An example of that is this website, brought to you in part by Open Source:

    Apache/1.3.41 Apache License, Version 2.0 (An OSI approved open source software license)
    mod_log_bytes/1.2 ibid.
    mod_bwlimited/1.4 ibid.
    mod_auth_passthrough/1.8 Ibid.
    mod_ssl/2.8.31 BSD license (An OSI approved open source software license)
    OpenSSL/0.9.8b ibid.
    Wordpress GNU General Public License version 2 (or later), (An OSI approved open source software license). This is very evident by looking at the bottom of this webpage.

    The fact is Gene uses Open Source software ALL THE TIME for himself but has invested interest, as a patent attorney, to defame it on behalf of an ideology that says that ideas can be patented.

    BTW, I’m posting my comments here under the Creative Commons license to everyone. So, knock yourself out.

  20. Dave Loper-

    First, in order to comment on IPWatchdog.com you need to remain factual and honest. Spreading lies will get you banned.

    Second, ideas cannot be patented. I have never said they can be patented. Perhaps you should read this:
    http://ipwatchdog.com/2010/11/23/protecting-ideas-can-you-patent-an-idea/id=13495/

    Of course, what you are trying to say is that software is an idea. That is an erroneous statement of fact and an erroneous statement of law.

    Third, I have not defamed anyone, and I have not defamed “open source.” Further, I will point out that it is legally impossible to defame a nebulous concept without a definition.

    Fourth, I have not mislead anyone about anything. Go ahead and pretend there is not a commonly understood meaning of the word “free.” That is the type of argument typically reserved for lawyers who don’t have the facts or the law on their side, and akin to when President Clinton mused that the answer to the question depended on the meaning of the word “is.”

    Finally, I don’t expect programmers to do patent searches all day long. However, NEWSFLASH… programmers are not special, they are not exempt from the laws simply because they don’t like them. So programmers that don’t search to see if they are infringing before they launch a product are going to ultimately get what they deserve.

    Crying like a baby that it is too hard to work in the business world and adhere to the set of rules that every one innovator and business has to is unbecoming, but sadly typical for those who prefer to copy rather than innovate. Grow up.

    -Gene

  21. Dave Loper-

    One final thing. Why is it at all disingenuous for me to use open source software? It is given away free. So you are complaining that I use it even though I use it legally, unlike what most programmers do when they illegally copy code.

    You need a reality check in a big way. LOL.

    -Gene

  22. Actually Gene, I’m going to agree with Dave here. Software is about ideas. I’ve never, ever, looked in the patent database when programming, and never would. Let’s look at the reasons why:

    1) It’s not time effective. The search algorithm that the USPTO uses is bloody useless. Google’s search algorithm isn’t much better. Time spent search is better spent working.

    2) You won’t find solutions. The software patents that I have read don’t have solutions. Take the patents that Oracle is trying to use against Google in the current lawsuit, The information in them is insufficient to build the claimed invention.

    3) The software patents that you do find are so damned obvious that they shouldn’t have been issued. Take the patents Oracle is trying to use against Google in the current lawsuit again. They describe technologies that were in use years before the patents were applied for. In some cases decades.

    Now it’s possible I’ve got an unfair advantage. I’ve worked as a programmer, as well as working in a position where I had to read a lot of patents, to determine if the technology was worth buying. To someone who hasn’t seen the sort of SHIT (pardon my swearing, but that’s the only way I can describe it) that the USPTO issues patents for, well, patents might seem important.

    And yes, there are people out there who get ripped off by people stealing their ideas. Seen that happen too.

    Don’t have any good answers. I just know that the USPTO isn’t a good answer, at least in it’s current incarnation. Whether Kappos can turn it into something useful, well, that remains to be seen.

    Wayne aka The Mad Hatter

  23. Wayne-

    I disagree with you about software being about ideas, although I do know where you are coming from given our previous goes at it. I think you sum the problem well at point 2, where you say: “You won’t find solutions. The software patents that I have read don’t have solutions.” And that is the problem. Many older software patents are nothing more than the recitation of wishes without any explanation as to how to accomplish the goal. Those days are gone though. The problem is with inadequate disclosure, not with whether software is or should be patentable. Clearly under the laws in place in the US there is no reason software shouldn’t be patentable. I would say that there is really no legitimate reason under any set of laws why software shouldn’t be patentable. There are numerous, tremendously valuable software innovations and the fact that they are accomplished by a machine reading binary code doesn’t change the fact that they are innovations and deserving of patent protection.

    There is a huge difference between saying something is patentable (or patent eligible) and saying a patent should issue. Software should be patent eligible and should be patented if and only if the other patentability requirements are satisfied. I will take issue to some extent about you saying they are obvious. In some cases that is probably true, but remember these things remain pending for 5 to 10 years, so was it obvious when filed? That is the question, and when some of the most notorious software patents are litigated or reexamined they stand up because there is no prior art that shows the invention to lack novelty or to be obvious prior to the critical date (i.e., filing date or date of invention).

    The real trouble is with disclosure and that is why today many patent attorneys incorrectly opine that software is not patentable. Once upon a time you could throw anything on the page and write up a method. You can’t do that any more, you really need to describe what is happening — the entire system at work.

    -Gene

  24. Clearly under the laws in place in the US there is no reason software shouldn’t be patentable. I would say that there is really no legitimate reason under any set of laws why software shouldn’t be patentable. There are numerous, tremendously valuable software innovations and the fact that they are accomplished by a machine reading binary code doesn’t change the fact that they are innovations and deserving of patent protection.

    There is a huge difference between saying something is patentable (or patent eligible) and saying a patent should issue. Software should be patent eligible and should be patented if and only if the other patentability requirements are satisfied. I will take issue to some extent about you saying they are obvious. In some cases that is probably true, but remember these things remain pending for 5 to 10 years, so was it obvious when filed? That is the question, and when some of the most notorious software patents are litigated or reexamined they stand up because there is no prior art that shows the invention to lack novelty or to be obvious prior to the critical date (i.e., filing date or date of invention).

    This is where I really annoy people. I agree with you – there is no substantive difference between software hardware and software legally. For that matter, trying to come up with any definition to divide the two can cause violent arguments. In the real world software and hardware are quickly merging into a single mass, just as humanity is now starting to merge with machinery. We are ‘Borging’ ourselves.

    As to those patents – the dates I checked were the filing dates, so yes, the technologies existed well before the patent application was applied for. This is common across hardware and software patents. It’s a trivial exercise to take any issued patent, and find a preexisting use of the technology, if you know where to look. The problem is that if you don’t give the Patent Examiners the time and resources to do the searches they aren’t going to find the prior art. Also current law appears to limit their searches in ways that are counter-productive.

    At least they are counter-productive if you want a strong patent system. There are people and companies who like the current disaster just fine, and who will fight any attempt to fix the flaws.

    But the Patent System is just a symptom of a wider malaise in the American system of government. I really hope you guys can pull things together, and get things straightened out. I really do. Because right now I see you sliding towards a worse Depression than the 1929 one, and your State and Federal governments appear to be totally clueless about cause and effect.

    Wayne aka The Mad Hatter

  25. Just to take something in isolation and run with it: “Using a single term to refer to many different licensing regimes causes ambiguity and uncertainty.” — some argue the exact same thing about the umbrella term “Intellectual Property”, which I’m sure you are aware of. Care to comment on that? I believe it’s misleading, and I don’t often agree with Richard Stallman.

  26. I’ll drop in a URL to an interesting and oft-quoted piece on the subject: http://www.gnu.org/philosophy/not-ipr.html