MSFT Goes SCO

, May 14, 2007

Charles O. Nutter (who is a Sun employee):

And yes, I’ve seen the Microsoft news. I’d hate to be an OSS developer or apologist at Microsoft today. If Sun did something like this I’d resign.

An excerpt from the news he’s referring to:

Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.

235? I don’t believe this at all; I believe that free and open source software probably violates at least 80% of Microsoft’s patents — which must be a few thousand by now. The problem, of course, is not with the “violations”, but rather that the idea to make software patentable is just idiotic.

I’ll grant any non-IT professional the right to misunderstand this — but any programmer, developer or software architect claiming software patents are a good idea just flips the bozo bit for me.

If your name is on a software patent, you should feel ashamed.

On May 15, 2007 1:57 PM, Frank Wilhoit said:

Don’t use many qualifiers, do you? Speaking as one of the co-inventors of U. S. Patent 5969316, the problem is not software patents per se but patents on abstract concepts.

On May 15, 2007 10:09 PM, Stefan Tilkov said:

Follow-up discussion here: /blog/st/2007/05/15/patent_apology.html

On May 16, 2007 7:21 AM, DBL said:

Sorry Frank but he’s right. Patenting software is as stupid a concept as patenting the ten commandments, and it’s hard to know what to make of a programmer who actually believes in them.

On May 16, 2007 8:23 AM, Stephen said:

I’d certainly like to see the patent situation changed in all kinds of ways. But the software patents vs. other types of patents disctinction is spurious. They’re really no difference. The earliest IBM Selectric typewriters used complicated mechanical mechanisms to justify type. The last ones made were pure software algorithms controlling stepper motors. The models in between used incremental mixes of both. At what point did the Selectric justification process become unpatentable?

What I’d like to see from critics of “software patents” is less emotional sloganeering, and more concrete proposals. Get together with people who know intellectual property law and practice, and actually draft proposed law and regulations, then listen to criticisms of them by actual patent practitioners who can give examples of how such propossals would apply to actual inventions, and iterate. When you hunker down and look at actual inventions and try to make distinctions, I think you’ll realize how thorny a problem it is, unless you’re one of those who thinks that patents should be eliminated altogether (and even there you’ll find many unintended consequences).

Nevertheless, there are improvements that can be made, but It will take a long time to change things, since patents and copyrights are bound up in a lot of international treaties.

The one area that I think is simplest to actually get something accomplished in is to eliminate copyrights for software altogether. Software easily and logically falls under patent principles, but is completely inconsistent with the idea of copyright, and was shoehorned into the law under the pressure of lobbyists. Software, logically, should fall under the useful object exception that prevents typefaces, fashion design, and Fiskars scissors from being copyrighted.

If you talk to people in any specialized field, they all are limited by patents in their business. And every time there is a new technology, a blizzard of patents have been filed: motion pictures, oil drilling, aviation, and so on. There’s nothing new, different, or special about the situation that software and internet people find themselves in now. People in other fields innovate around or license patents, and software developers can do that also.

On May 16, 2007 10:14 AM, Nick said:

At the risk of getting flamed, I think I agree with Stephen on this.

Don’t get me wrong, I despise software patents - I think they are symbolic of everything that is wrong with modern litigation culture - but I fail to see why patents for software are any different than for any other invention. The only reason why software patents have been singled out is because of the relatively small effort required to create a patentable software algorithm as compared to an electromechanical equivalent.

The patents system is clearly broken, but we need to figure out why, and fix it, or if necessary abolish it altogether. Banning software patents will be at best a very temporary solution because it would simply have the effect of pushing technology back in the direction of custom hardware solutions.

We already have programmable logic arrays (PLAs) that essentially act as “hardware programs”. It is already hard to distinguish software from hardware in cases where such devices are employed, and it would be easy for manufacturers to start making devices that blurred this distinction as much as possible if a few test cases proved that it would enable them to restrict competition.

You’d suddenly find that instead of buying software on CD, you’d be buying a cartridge containing the next version of Microsoft Word encoded directly in logic gates, and computers would start shipping without processors. All commercial research into software algorithms would cease.

Okay, maybe that’s far fetched, but the point remains that software and hardware is a meaningless distinction, since any given algorithm can be achieved as both a hardware and software implementation. I can see an argument for banning patents on frivolous concepts such as “look and feel” and “one-click purchasing”, but “patents for software algorithms” is too general a thing to ban whilst still maintaining the original function of the patent concept.

If we ban that, we might as well get rid of the whole shebang. It would have been like someone deciding in the 19th century that patents could no longer be applied to any device that used electricity.

I’ve written some more on the subject here: http://www.charcoaldesign.co.uk/weblog/12

On May 20, 2007 2:41 PM, liberal said:

Stephen wrote, Get together with people who know intellectual property law and practice, and actually draft proposed law and regulations, then listen to criticisms of them by actual patent practitioners who can give examples of how such propossals would apply to actual inventions, and iterate.

Right. Patent lawyers don’t have a vested interest in maintaining the current status quo?

Uh uh…

On May 20, 2007 2:42 PM, liberal said:

Uh uh… => Uh huh…