By Stephen Shankland, 16 February 2005 09:40
NEWS
Open source programmers might not like the idea of software patents, but those critics would be better off adapting to the fact that they're not going away, Hewlett-Packard's top Linux executive said on Tuesday.
Martin Fink, HP's vice president of Linux, said in Boston at the LinuxWorld Conference and Expo: "At the end of the day, software patents are a way of life. To ignore them is a little bit naive." It's fine to object to software patents, but it's foolhardy not to try to acquire them, he said.
"Refusing to patent one's ideas is leaving oneself exposed for absolutely no good reason," Fink said. "For some, [getting patents] may seem like selling out. You can comfort yourself that it's what you do with the patent that matters, not the fact that you have one."
Critics of software patents include some of the highest-ranking members of the open source and free-software movements. Among them Richard Stallman, president of the Free Software Foundation; Linus Torvalds, founder of Linux, which piggybacked on Stallman's Gnu's Not Unix (GNU) operating system project; and Brian Behlendorf, a founder of the Apache Web server software project.
In contrast, HP boasts of its patent glories. In 2004, it received 1,775 US patents, placing it fourth on the list of those who acquired the most patents in the United States.
Intellectual-property issues - that is, matters involving patents, copyright and trade secrets - are attracting more attention because of open source software, which by definition may be shared, changed and redistributed. Those freedoms stand in stark contrast to the secrecy and distribution constraints of traditional proprietary software.
Fink said that open source software is built on a copyright law foundation, but that patents are more awkward because programmers see them as curtailing their liberties. Companies, on the other hand, see patents as protecting valuable ideas.
Linux doesn't come with any guarantees that it's not violating patents. Indeed, one study by a company selling insurance against intellectual-property lawsuits said that the operating system kernel potentially violates as many as 283 patents. And an HP executive warned in 2002 that Linux foe Microsoft was planning a patent attack against open source software.
Still, no patent attacks have materialised publicly so far, and the landscape for launching such an attack is becoming increasingly complicated. Linux sellers Red Hat and Novell have vowed to use their patent portfolios to defend against such attacks, while IBM and Sun have declared they won't sue over open source infringement of hundreds of patents.
Also on Tuesday, Fink lambasted the practices of the Open Source Initiative, the group that approves prospective open source licences such as Sun's Community Development and Distribution License.
In August, Fink said that 52 open source licences is too many. Now there are more, he complained, because OSI simply approves any licence meeting the Open Source Definition, instead of trying to consolidate to advance open source business foundations.
"Clearly, the OSI has not internalised the critical role it plays," Fink said. "Approving licences based on compliance with a specification rather than the ability to further open source business models makes... a clear and present danger."
Fink is chairman of the intellectual-property subcommittee of the Open Source Development Labs and will work to bring the Linux consortium's weight to bear on the matter. OSDL has an "aggressive plan to drive (OSI) to a new direction", Fink said.
Comments
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1. Frank Smith
So in the ' real' world, How does a startup get the patents?
I guess HP will lend me a few just to get me off the ground!
Get real there closing the gates to stop just that. Startups in the IT sector can cause major eruptions to the industry and these companies need a way to stop this.
2. Richard Gallafent
I doubt HP or anyone else who has invested in patents will cheerfully lend them, but if a startup has an invention, you can materially increase interest from others by seeking to patent it. Even if ultimately you are unsuccessful, that won't be known for some time, and in the interim you may well have been able to use your idea to gain some respect, or even cash!
The big boys in the industry may have the financial muscle, but they have no monopoly on bright inventive ideas. If you have one, try and protect it, because if you don't you will have no bargaining chips once news of it escapes, and everyone can then copy the idea for free - not the programme as this would infringe copyright - but the idea. The only way to control the use of technically inventive ideas is by way of the patent system, and it's tough that you have to file before you disclose (save for the USA) if you are to secure protection, but that's the system we have at present and to ignore it may be philosophically attractive, but it's unreal.
The "software patents" debate is set to run and run, but while there is no clarity, there is everything to play for, and software inventors should not be deterred from patenting just in case things turn out to be adverse for software patents at some unspecified time in the future. If you've had a good invention, perhaps by then you won't care!
3. Alfred Reading
Richard Gallafent is right about patents for bright inventive ideas but that is only a small part of the real world of computing patents where implementation of these ideas is also patented. This means that techniques that a sensible person would use in normal programming to produce their own ideas have been patented (especially in USA) and so without intent they become open to being sued. They are not financially able to challenge these 'fake' patents and so the little guy with the bright inventive idea cannot exploit it.
4. anonymous
Seems like they're getting pretty blatent at abusing the intellectual propery laws and are actually proud of it. When are they gonna admit that the patents should be more strictly given and a limit to how many you can get in a year.
I hope for your sake that the UK doesn't adopt my country's laws. We're trying to get them changed but if the abuse continues I'm sure they may find patents a local issue in some states. Someone is bound to sue eventually with the way us americans sue.
5. CPK Smithies
How are software patents different from any other? I've not yet seen one argument that convincingly distinguishes between innovation in software and innovation in any other field. If patents are so terrible for the software industry, why didn't they prove equally terrible in the field of (say) mechanical engineering?
6. Alfred Reading
CPK Smithies asks why patents did not cause problems in fields other than software. The answer is that patent offices did not regard things like left hand screws as a patentable innovation in relation to right hand screws. USA in particular has a patent office which does not make such distinctions in software applications. I have read that they even expect the prospective patentee to inform them of previous related work instead of doing the investigation themselves. I fear that the EU is going the same way.
7. CPK Smithies
Just to deal with Mr Reading's point: left-hand screws are not patentable because the law requires that in order to be patentable, an invention must (inter alia) not be obvious to someone with normal skill in the art. Violating this principle would produce absurd and harmful results both in the mechanical and software engineering fields. How does the possibility of misuse of a law justify the current discrimination against software inventors? How does it follow that if software were to be protected, such abuses would necessarily arise?