Linked by Thom Holwerda on Sun 17th Jul 2011 20:58 UTC, submitted by fran
Linux It's strange. Microsoft has been patent trolling the heck out of the Linux kernel for a long time now, and is still using these patents against Android today in its protection money scheme. However, as LWN.net illustrates, Microsoft makes quite a few contributions to the Linux kernel. Shouldn't this invalidate their patent claims?
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Patents
by malxau on Sun 17th Jul 2011 21:24 UTC
malxau
Member since:
2005-12-04

Shouldn't this invalidate their patent claims?


The Linux kernel is licensed under GPLv2.

GPLv2 does contain a clause to ensure redistributors do not obtain a patent license that cannot be reapplied to every user receiving a copy.

It does not contain the GPLv3 patent license requirements (section 11) that are applied to contributors. Those provisions are attempting to give effect to what you describe, where a contributor must implicitly be granting a patent license to any applicable patents they hold that would cover their contribution.

Notwithstanding that, if a GPLv3-style patent license did exist covering the Linux kernel as a result of contributions, it does not mean that any patent claims over a larger work (eg. Android) would entirely be invalidated; only those relating to the kernel contributions. Many of the patents being argued about are much higher level than that.

Reply Score: 5

RE: Patents
by Delgarde on Sun 17th Jul 2011 21:49 in reply to "Patents"
Delgarde Member since:
2008-08-19

I don't think Thom was implying that their patent claims would be running afoul of GPL patent provisions.

Rather, it's that they can't seriously complain about patent infringement by the Linux project when they themselves are a major contributor to that project. Their contributions may not be related to the areas in question, but it's still bad for the credibility of any patent claims they might make...

Reply Parent Score: 5

RE[2]: Patents
by Laurence on Mon 18th Jul 2011 10:42 in reply to "RE: Patents"
Laurence Member since:
2007-03-26

I don't think Thom was implying that their patent claims would be running afoul of GPL patent provisions.

Rather, it's that they can't seriously complain about patent infringement by the Linux project when they themselves are a major contributor to that project. Their contributions may not be related to the areas in question, but it's still bad for the credibility of any patent claims they might make...

If credibility of patent was an issue, then the US patent system wouldn't be in half the mess it is now.

* You wouldn't have Apple suing over evolutionary patents which have stacks of prior art.
* You wouldn't have HTC buying other companies for their patent portfolio.
* ...and You wouldn't have patent trolls trying to cash in on others successes.

The problem with the patent system -and to a lesser extend, laws in general- is it's not about credibility and hasn't been for some time. It's about clever posturing of legal and technical jargon to manipulate a legal broken system into favoring yourself over your opponents.

Edited 2011-07-18 10:42 UTC

Reply Parent Score: 4

RE[2]: Patents
by vitae on Mon 18th Jul 2011 20:30 in reply to "RE: Patents"
vitae Member since:
2006-02-20

It's a further tacit acceptance of the existence of Linux which is a farcry from the days of this kind of melodrama:

http://www.macobserver.com/tmo/article/Have_You_Longed_To_See_Bill_...

Reply Parent Score: 2

RE[2]: Patents
by CaptainN- on Tue 19th Jul 2011 15:23 in reply to "RE: Patents"
CaptainN- Member since:
2005-07-07

Thom also implied that logic should have something to do with the law - and of course it doesn't. Lawyers and the legal system (at least in the US) are all about argument. Argument is all about who can best appeal to the confirmation bias of the Jury and Judge.

Logic has got absolutely nothing at all to do with it.

Reply Parent Score: 2