Home > Legal > Patent Issues in the Software Industry Patent Issues in the Software Industry Submitted by special 2004-03-18 Legal 32 Comments In response to Havoc Pennington’s post on the future of open source desktop development, GNOME’s in particular, two prominent GNOME and Mono Hackers, Miguel de Icaza and Paolo provide their interesting perspective on the subject here and here. About The Author Eugenia Loli Ex-programmer, ex-editor in chief at OSNews.com, now a visual artist/filmmaker. Follow me on Twitter @EugeniaLoli 32 Comments 2004-03-18 5:59 am “lets harass sun and lets copy microsoft” ? 2004-03-18 5:59 am Huh? Are you trying to predict what the article is about without reading it?? Strange. 2004-03-18 6:07 am Seriously which patent do sun have on java that threatens Linux. Bringing Sun threat against Jboss is just FUD because that was related to J2EE and the JCP process have free licenses to open source projects. Comparing Sun threat to Microsoft is beyond FUD. I was personally shocked by the article because i didn’t expext open source developers spreading FUD. 2004-03-18 6:08 am “Compatibility with the devil: We (as in Ximian/Novell and AFAIK also many mono contributors) will try to keep up with changes done by MS to the platform mostly because it enables people to move from the MS platformto a free software platform more easily: in the next few years developers on MS will be forced to develop for the managed platform and we’d like to offer them an alternative to escape to the free world. ” One there’s the question of “can you keep up”? “I think this will be a good thing for the free software community, but I can see other free software developers not caring. I can live with that:-) Just don’t use it as an argument against Mono:-)” We shall see. “Havoc notes that ECMA defines only a subset of the .Net platform and that it maybe too controlled by MS. Even if MS would try to undermine the changes we’d submit to ECMA for consideration, this doesn’t mean we can’t have our own, community-driven standards effort for enhancements to Mono and for the development of independentclass libraries. Let’s discuss how can we best build a standardization effort. In Mono there are two different stacks of code: the MS-compatible ones and the free software/community one. See the picture. Free software people can just ignore the MS-compatible bits and let the developers who want to port their code from Windows to Unix systems worry about that.” Two the above kind of conflicts with the “alternative to escape” if the developers have to “worry” too much about crossing over then they will not. So then we’re left with basically “another” body of code to worry about. And people already complain about too much choice. 2004-03-18 6:10 am There are many paths to complete application dominance by Microsoft if Mono is successful. There will be no other platform other than .NET and Microsoft will always win on this battlefield. And if Mono ever becomes a threat to Microsoft, then all Microsoft will do is bury Mono in ligigation. Microsoft has not assigned any ownership rights, just usage rights. And those can be changed anytime Microsoft wants. There is absoltely no path to Mono success that Microsoft does not control. Maybe Mono will be today’s “DR-DOS”. And we all know that whatever it took — legal or not — Microsoft crippled it. The same thing will happen with Mono. Miguel simply doesn’t understand. Just as there is no real open source version of Java (because of Sun), there can be no real open source version of .NET (because of Microsoft). 2004-03-18 6:17 am Reply to Miguel. “Just to put things into a different perspective: Sun has litigated over Java in the past (against Microsoft) over a contractual dispute and has done threatening legal moves against JBoss at some point (which I do not claim to understand) over bits of J2EE.” Seemed pretty clear. Were is the nonunderstanding? The rest of his post wasn’t really a comfort for anyone thinking of moving. “Maybe” when it comes to patents isn’t something to be taken lightly. 2004-03-18 6:25 am Microsoft will let Mono stay compatible with their own versions of .NET until they see the Linux “desktop” (see bottom paragraph) as a bigger threat than Java. Right now, they do not. They want to see .NET supplant Java, and it probably eventually will once Windows switches fullscale to it. The moment the Linux desktop becomes a larger threat, Microsoft will make .NET incompatible with Mono, and Mono will forever play a game of catch up. Meanwhile, developers will likely rather stay compatible with Microsoft’s standards, as they would be likely bundeled with Windows updates. Note that Microsoft considers Linux it’s largest threat now. However, the server is a much bigger portion of that threat than the desktop ATM for Microsoft. This may change in the future though. 2004-03-18 6:27 am Sun made it very clear that you can do whatever you want with J2SE as long as you pass the TCK and the TCK is available for free to open source projects. Sun doesn’t want java to be fragmented that is very different to what Miguel is implying in his post. 2004-03-18 6:57 am havoc: violent and needless disturbance pen, e.g. “jim penned that amazing review on tacos”; produce a literary work. hence his name is “pennington” havoc pennington. lol. what a great name. i wonder if that’s his real name, or if he’s changed it in some way. 2004-03-18 7:05 am A friend of mine went to a Longhorn/.NET lecture given by some MS people and he said that they said (yes I know, hear-say, but still) that Microsoft actually supports Mono and has assigned resources and programmers to the project because they want .NET to be truly cross-platform. Anybody also hear anything like this? 2004-03-18 7:09 am His real name is “Robert Havoc Pennington”.. Havoc is really his middle name :} 2004-03-18 7:10 am That may be but open source people are classic for copying corporate products. Linux was created to do just that (According to the dictionary..) The open source people will respond with a product that is compatible with the new version–they’ve done it in the past and I don’t see them stopping. 2004-03-18 7:11 am There has been rumors that microsoft is developing a .Net platform for BSD. unsure if that is even true 2004-03-18 7:18 am I know. However the fact that he didn’t I found troubling. What else might he not know? And will it be something that could come back and bite him in the future? And if the “other” implication is that he’s misrepresenting things to gain acceptance for Mono. Well I’ll let the audiance decide on that. 2004-03-18 7:19 am it’s called “ROTOR” 2004-03-18 9:31 am I think people here misunderstand what Miguel is trying to say about Patents. He is simply saying that M$ has licensed any patent they might hold on a royalty free license in regards to the core part of C#/.Net, which means when you use Mono+GTK# there are no risk of M$ suing you for patent violations. In regards to other having patents that is true for ANY software development, wether it is using Mono, standard C, C++ or whatever. There is a huge amount of patents being granted these days on stuff that should never have been allowed to be patented and all Miguel is saying is that there is almost no way of safeguarding against that. And there is no way to safeguard against it. If not even M$ has the resources to keep out of patent trouble (Eolas), then there is little chance anyone else will be able to either. Hopefully the US and world governments start listening to Lessig soon and fix the system. 2004-03-18 10:27 am Patent issues aside; noone in the linux community would want a platform that is about copying what microsoft is inventing. Invent your own class libraries, completely independent of Microsoft, then come back and suggest mono has a place in the foundation of the Linux desktop. 2004-03-18 10:30 am In the end every single developer will choose the Language and Framework he prefers, no matter if somebody likes Mono/C# or not. 2004-03-18 10:39 am Invent your own class libraries, completely independent of Microsoft, then come back and suggest mono has a place in the foundation of the Linux desktop. http://www.go-mono.com:8080/“>Go . Check out everything listed under “Gnome Libraries” (and NUnit, Mozilla, and DiaCanvas Libraries, too, if you feel like it). Remove foot from mouth. 2004-03-18 10:48 am My vote goes to D ( http://www.digitalmars.com/d/ ) or gnustep ( http://www.gnustep.org/ ). Check out the “converting C to D” article at the first link. Both look very nice although may need more developers The start of a gtk+ wrapper for D is here: http://dui.sourceforge.net/ I strongly do not want to see java or mono become very largely used for gnome development, but I would like to see something a little higher level being used – such as D. 2004-03-18 1:54 pm Again and again I see Mono developers defending it by saying “but there are two API stacks, you don’t have to use the MS one”. Why don’t they split up the package into three seperate ones like: – mono-runtime – mono-apistack-microsoft – mono-apistack-linux That way people would see that using the microsoft stack is optional and not a requirement to work with mono. As long as the MS stuff is “hardwired” into the Mono core people will always see it as a project depending on Microsofts goodwill. 2004-03-18 2:13 pm Software using Free licenses can use patented techniques under Royalty-Free terms, but not under ‘Reasonable and Non-Discriminatory’ terms. There is no way to collect royalties and permit free redistribution at the same time. RAND is a major threat to Free software. The terms sound great to the general public (and judges in antitrust cases). The general public doesn’t understand how important freely redistributeable terms are for the community software development process, and is likely to view complaints about RAND terms as whining. But RAND stops Free software cold. Is .NET under Royalty-Free terms, or RAND? Miguel lumps both together, but the difference is significant. 2004-03-18 2:24 pm There is an effort underway to split up the mono packages. See: http://lists.ximian.com/archives/public/mono-devel-list/2004-March/… It’s not quite as clear as your idea (a -microsoft and -linux stack), but it should be reasonably obvious (mono-windows-forms is obviously a -microsoft stack, as is mono-asp-net, and *possibly* mono-drawing). 2004-03-18 2:25 pm You’re quite right, and Miguel et. al knows this. Which is why Novell/Ximian is currently performing a Patent Review. See: http://www.oreillynet.com/cs/user/view/wlg/4557. 2004-03-18 2:30 pm Does the ‘Non-Discriminatory’ part in RAND actually mean anything? Surely if you try damanding licence fees out of free software (i.e. GPL licenced) you are discriminating? The entity can’t pay the fees because they have no income and if they had to start charging then its anti-competitive in a way as your forcefully removing their price advantage. 2004-03-18 4:56 pm “That may be but open source people are classic for copying corporate products. Linux was created to do just that (According to the dictionary..)” Well get a better dictionary. Linux was created as a copy of minix which is a not corporate. And FYI Linux is not trying to copy UNIX, they are trying to implement POSIX. 2004-03-18 6:13 pm “Surely if you try demanding license fees out of free software (i.e. GPL licensed) you are discriminating? The entity can’t pay the fees because they have no income….” If you define “free” software as in beer, you are correct. If you define it as in speech, then Novell, Red Hat, et al. should not have a problem. OTOH, such profit-making entities certainly don’t encompass the entire free (as in speech) software community. 2004-03-18 7:29 pm I just simply don’t understand why should MS make its own life harder by releasing C# as open std. C# makes application development easier thus allowing easier making and more apps to be made to open source field and ofcourse to MS land too. But why should MS want easier development for opensource world? Afterall MS is competing w/ OSS(aswell as with some other software companys). There must be some quirks in it, maybe something like commenter ‘the teacher’ said below about ownerrights and using rights. As a result… by the time mono has been adopted widely, MS might decide it’s about time to show those OSS zealots and users.. then all those apps that were made in C# are left the way they are because there’s no right to use them or develop on. There might not be question weather C# is good language or not but theres the question about rights. I don’t think MS would just watch on when they see OSS changing radically due to the use of C#, though if C# is that good language. Just some thoughts. Sorry about my English, it might not be very good. 2004-03-18 8:59 pm Because Miscosoft does not decide which programming languages will be most used in the next thirty years. To try to force something would quickly lead to their irrelevance. People would work around them. 2004-03-18 9:33 pm “If you define “free” software as in beer, you are correct. If you define it as in speech, then Novell, Red Hat, et al. should not have a problem. OTOH, such profit-making entities certainly don’t encompass the entire free (as in speech) software community.” And if Mone get’s ingrained into Gnome and it’s apps, then you’ll basically have no gnome on the freely distributed portion, while it will be on the pay portion. You’ll be able to hear laughter from the KDE contingent all the way across the world. If the KDE/QT situation taught us anything? Depending on encumbered software is a headache. [ Anonymous (IP: —.dsl.pltn13.pacbell.net) ] “Because Miscosoft does not decide which programming languages will be most used in the next thirty years. To try to force something would quickly lead to their irrelevance.” VB. 2004-03-18 11:14 pm The “Non-Discriminatory” in “RAND” refers to the requirement that all licensees are charged the same royalty rates. Volume discounts are permitted as long as they apply to all. RAND works well when the licensing is between companies. It’s common in the hardware world, where royalties are included in the cost of the hardware. For example, Apple receives royalties for IEEE 1394 (‘FireWire’) devices. So do a long list of other companies; it’s difficult to come up with industry standards without using multiple patented techniques. Discriminatory royalty rates are common, too. One example would be when Microsoft charged IBM higher rates for MS Windows when IBM was pushing OS/2. That would be legal if MIcrosoft didn’t have a monopoly, but that’s another topic. The point is that formal standards organizations require RAND terms at a minimum. Microsoft has been able to use its size to squash any companies who dared to compete with it. Any company depending on the sales of software to generate revenue is vulnerable to Microsoft’s financial clout. The only threat that Microsoft has not been able to counter is companies and people who do NOT depend on the sales of software, but in fact give the software away for free. Red Hat, for example, does not depend on software sales, but on selling support. Microsoft’s targeted give-aways can’t suck the revenue out of a Red Hat. Red Hat changed the game, and Microsoft has been forced to counter with talk of TCO. Initial aquisition price has been removed from the table, leaving operating costs. But that isn’t working, either, since customers understand that operating costs tend to rise when you are locked into a sole source supplier. RAND terms on patent royalties give Microsoft the tools that they have been looking for to stop Free software. This issue will not go away. The public is beginning to wake up to how much of the public side of patent, copyright, and trademark law has been given away to special interests. If Microsoft uses patents to stop competition in the desktop market, that could force changes in patent law. I’d love to see software patents invalidated, but this seems like a particularly painful way to bring that about. But protecting liberty is often requires pain and sacrifice. 2004-03-19 1:54 am “I think people here misunderstand what Miguel is trying to say about Patents. He is simply saying that M$ has licensed any patent they might hold on a royalty free license in regards to the core part of C#/.Net, which means when you use Mono+GTK# there are no risk of M$ suing you for patent violations.” Trouble is, judging from MS’s track record, we can expect it to have some angle to disrupt the progress of free C#/.Net runtimes if they became potential threats to its monopoly. Just because MS would not be legally in the right does not mean that MS would not sue. Or it might not have other tricks up its sleeves, maybe FUD like “Mono is a cheap knockoff. Our .Net is the real deal.” While it is silly to think of Microsoft as the epitome of all evil, it is not silly to remember that MS got its devilish reputation for good reason.