Open-source software is indeed vulnerable to claims of patent infringement. But lawyer Steven Frank says that doesn’t mean the legal floodgates are about to open.
Will Patents Pillage Open Source?
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Eugenia Loli
Ex-programmer, ex-editor in chief at OSNews.com, now a visual artist/filmmaker.
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Not surprisingly, Mr. Steven Frank has a stake in the extortion business AKA the patent system:
http://www.tht.com/pubs/SearchMatch.asp?AttyNo=1093
“[…] the ability to enforce intellectual-property requires a relatively small number of infringers that dominate the market, and which have resources justifying the legal effort.”
Apparently not:
http://swpat.ffii.org/patents/effects/index.en.html
“Software patents sometimes cause legitimate controversy not because computer programs somehow differ from other patentable technologies, but because patents on software are relatively new.”
Software IS fundamentally different from anything else to which the patent system has been applied:
http://lpf.ai.mit.edu/Patents/industry-at-risk.html
Computer science is closer to a field of mathematics than the field of industry. As such, it should not be under the patent regime. Think about it: software is just a collection of algorithms that operate on data. Heck, programming languages like Scheme verge on executable mathematical functions, while fields of math like linear algebra are entirely algorithmic, just like computer programs. Imagine how disastrous things would be if Newton had patented Calculus! That is exactly what is happening today in the software industry.
There’s a quote that goes something like this: if Microsoft had been around about 300 years ago in the age of mathematics and had developed the Pythagrium (sp) theorem, we’d be paying them royalties everytime we used it.
IMHO, patents as well as DRM pose a real threat to open source. I mean, you can already see the effects, with distros not shipping with MP3 codecs or DVD capabilities. I wonder where Linux would be if they would not have been able to crack DVD encryption? Where will it be in 5 years if it so happens that DRM really takes off and all hardware/software devices come standard with encryption that is illegal to reverse engineer, thanks to the DMCA? Hell, the average zombie … er, consumer … will never notice the difference.
I agree with the mathematics analogy. I think it would work out fine if you couldn’t patent ideas, but then again weren’t forced to reveal your source code. The software industry moves at such an incredible pace that the truth is that once an idea comes out, if it isn’t patented, by the time the code is guessed and emulated by somebody else, it’s old news and isn’t a selling point any longer. Keep your source closed if you wish, but Lord, stop patenting ideas like that. Really, people, is Amazon’s profitability going to rely upon “one-click” shopping? No…not at all. Compete on price, compete on style, compete on optimized code. Don’t compete on things that you’ve artificially patented.
That having been said, I think it’s impossible to reverse course now. Companies who have their foundations built on copyrighted ideas who collapse (huge corporations), and even in the name of fairness the patent office would never destroy a large part of the technology sector, and in effect, America’s economy.
Oh, and Darius, it’s Pythagorean Theorem (for those of you who don’t know, it’s the theorem that states that in a right triange the length of the hypotenuse, the longest side, is equal to the square root of the sum of the squares of both of the sides that make up the right angle), developed by Pythagoras much ealier than 300 years ago (sometime around 500 BC, 2500 years ago).
Challanging Open Source is a dangerous move for any sane company! Most Open Source licenses gain their standing under copyright law. You can’t undermine something like the GPL without doing major damage to your own copyrights–regardless of the winner in such a fight, the copyright holders would loose; a little or a lot, but they would loose a lot more than open source!
Patents in Open Sorce is another pandora’s box! Software patents are unique in that they don’t require the actual code to be published! Unlike physical mousetraps with thousands of possible designs, a software patent is usually so broad as to only allow a “mouse catching device”. That flys in the face of most patent precedent even recent history [see Xerox/Cannon copiers.] The PTO has always granted patents for physical devices with the most minor of improvements/changes. All that’s needed is for a good well-backed case against open source and software patents would start falling like dominos! All the cross-information in most software would make the courts heads spin if they had to actually deal with it. You can only patent software a machine instructions or business rules. If it came to a fight, the patented source would have to be opened up [it’s copyrighted too, so there is no ‘trade secret’ damage to hide behind] I’m sure compared to the Open Source, there would be no claim of outright copying, but would languages, module setup, platforms, APIs be tested? What about the fine line between machine instructions and mathmatics, one can be patented, the other can’t. If you seperate a patented algorithm from the source, do still have claim over it? There’s a lot of nasty questions out there to be answered. Fortunately for most software companies, defendants roll over, but one day someone won’t and theses questions will be asked in court–Whoever forces the hand will be hated/loved for finally ending the mess!
-1 : excessive use of !