Linus leads charge against software patents

[aRTee]

Gowator, lots of stuff from your side that I have to respond to - let me first respond to theYinYeti please. I'll make time to comment on your arguments and counter some.

 

if the US system has not severely harmed FLOSS (I don't know of one case where it has), then why would the EU system be worse if the proposal is to allow less?

I'm not sure about what FLOSS is, but if I understand you well, I don't agree here. Else why would PLF exist?

- Why do I have to download (or rather "why can't Mandrake ship") libdvdcss (which is perfectly legal for now in France) for watching DVD that I *own*, and have *legally bought*!

- Why do newbies come here and say "Mandrake is s$$t, it can't even play MP3s"? Patenting a file-format is non-sense IMHO.

 

Protecting a non-trivial algorithm to encode/decode faster than anyone else is OK. But protecting the file-format: NO!

My opinion in summary is just that: copyright is perfectly suited to software, not patents.

 

Yves.

<{POST_SNAPBACK}>

FLOSS: Free/Libre Open Source Software, anything GNU/ GPL, BSD (etc) licenced.

 

You cannot download libdvdcss because the technology for dvd playback is licenced, among other things in the cost of the player or in cases of software, in the css decryptor.

Now, if you buy a standalone player, you have paid for this licence, unless the manufacturer hasn't in which case their merchandise is illegal and can be taken off the market.

Price of such a one-device license is: 5 USD or 5% of the sales price of the apparatus, whichever is more.

 

With dvd rom computer devices this works differently from standalone devices in that you can get a bare machine, the license is normally paid through the (often/possibly) bundled software player, like windvd or powerdvd - they pay this fee per player to the dvd forum.

 

Now here's the catch: if you buy a bare dvd-rom/burner without any software bundle, it gets cheaper, BUT! at that point you haven't paid for the license to use the video dvd playback capabilities. That's one reason why OEM drives (that aren't even packaged correctly) are cheaper - the video-dvd playback license fee has not been paid.

 

So you're saying: the dvd forum should not be able to protect that investment that they have done in creating the (proprietary! not Open!) video dvd standard?

 

That's nonsense.

 

However, with no alternative, this does force Linux users to illegally watch dvds.

I don't think any of the dvd forum will risk to go against home users, but if RH/Mdk/SUSE include libdvdcss, they're toast. And rightly so. Don't forget, if Linspire can bundle the dvd playback thingy legally, which they have done, Mandrake, RH et al ALSO COULD.

Now, that all of us are too cheap to actually pay for that is another thing.

 

So basically, in the scheme of developing video dvd, they overlooked that the issue of playback on computers might ever become really problematic, that's where the industry went wrong.

 

NOT however, in trying to enforce THEIR rights on THEIR technology.

 

BTW: please note that it was the MPAA that went after DVD Jon, not the hardware industry.

 

 

Now as for mp3 - you talk about a file standard - it's only that, since it's popular.

I don't see why they should have no rights to restrict the use of MP3 technology.

 

Look at it this way: they figure out how to choose the weighing factors, which algorithms to use, how to split the signal into frequency bands, what exact human-ear model to use to have decent audio quality, etcetc.

This is lots of work, which costs lots of money and effort.

The ones doing this investment, should they just give it to the world and not expect anything back?

If you don't like that, use Ogg Vorbis.

 

If you change the way it now works, who will develop this kind of thing? Government paid research institutes? Universities? Home hackers?

You tell me.

Because I can tell you that no investor will put a single dime on the table to fund anything if there's not going to be any profit. Which there won't be if they cannot get any claim to the format.

 

And in case you're going to argue that the open source community is going to do it:

please give me one single example of open source and open standard developed technology that was leading and not following the existing market.

 

So count out ogg vorbis, since they followed the lead of mp3. Teora? Maybe, but it's not usable and not around. Flac? Very good, but not the first.

 

I'm talking about new, exciting, useful technology in file formats being developed by open source developers (in their free time - else you still have to see who's paying for it, those will still want to see a return on investment). I have counted them and my count started right where it stopped.

Nil, zero, nada.

 

Open source development is very good at obiquitous/commodity things - ff, to name one, linux for another.

Developing new (as in type) file formats is not the strong point.

I guess what I'm saying is that FLOSS development is good (if not the best - better than others) at implementing software to perform certain tasks.

But you need real research to figure out what tasks exactly you have to perform.

 

So again, I ask: who is going to pay for that real research?

 

If you come up with: the big companies, I say: think again. They have the obligation to their shareholders to maximise profits in a durable manner. Throwing out money for research that won't pay off is contradictory to that.

 

If you say: goverment funded institutes, universities, then I say, not bad - but in that way, all taxpayers pay.

Look at it this way: as things are, on each dvd movie disc you pay a little premium. If you're rich, and buy more discs, you pay more. If you don't buy dvd movies you pay nothing.

If the goverment funds that kind of research and development, everyone pays for it - including those who don't use it.

I don't think that is fair/correct.

 

 

Lastly, don't forget that due to competition the research and development departments cannot squander money, which is quite different from universities and goverment funded institutes.

Most corporate r&d departments are likely more efficient, and if they are not, they go the way of the dodo. You cannot let a university or so go the way of the dodo.

 

 

Gowator, I'll comment more on your remarks later, but one thing: yes, at the time cd technology WAS rocket science.

Edited November 26, 2004 by aRTee

[Gowator]

OK aRTee, I still got comments on the above:

 

1) The licensing issue is not the issue. I have purched my lifetime $5 license for DVD playback in anycase...

 

The issue is the ability of the monopoly to prevent it being watched on other platforms and to control how/where you choose to watch your DVD.

 

Again this isn't strictly a patent issue... hence grey area ... because it also involves copyright. It is the technique of overlapping copyright and patents that is most abused....

 

Look at this in Engineering terms.... I could I guess copyright a key.

I would copyright the crenulations and folds (whatever they are called) and then noone else could make that key/lock BUT I can't patent the exact design.

 

Why... because its not novel... anyone could have mpoved around the pins and come up with a similar design. It would be like taking a piece of music, rearranging it and then saying it was a novel new piece.

 

Indeed if anything in music might be patentable it is the styles... rock, blues, jazz are concepts which perhaps are novel and new but music historians will tell you differently... they will say how certain chords led towards jazz (indeed most jazz is 12 chords) etc. and these chords themselves are based on ONE the greek scales.. (I forget which ..perhaps dorain) so it is more a progression.

 

This is exactly what most software is...

 

So back to the patent/copyright....

It is the overlapping of copyright (we lease you the right to listen/watch) and patent (will will decide how and where you can watch) that leads to restriction.

 

Copyright is FREE. Patents are expensive....Patents work for those who can afford them and even better those who can specualte on them...taking out patents which migfht or might not be rejected but to prevent competitors doing so.

 

Pre-emptive patenting is a non-sense. If it innovative and novel then noone lese will stumble onto the idea therefore why patent it.

[aRTee]

Sorry, dvd playback licenses are not people bound but machine/playback device bound. I mean, if you watch a dvd with friends, you don't have to ask everyone if they have the license, do you?

If you mean you have a Linspire license, then yes, that one I guess you can transfer to another machine.

 

The monopoly is not preventing anyone from anything, as long as they get the license fee. Guess what, lots of people build cheap machines and use decss based decryptors - then what, they have a competitive advantage over those who are playing fair and paying the license fees.

 

Oh and oems can get licenses, and linspire can. I.e. the industry IS NOT withholding playback, the Linux distro makers have not put anything in place exept Lindows/linspire (or does SUSE also have a dvd playback license? Could actually be - I recall reading something along those lines).

 

This imho is not the grey area just yet.

 

The grey area is to say something more exact than: no patent pertaining to software should be enforceable.

 

Like I argued with mp3 above, there clearly are cases where it's good for development to have such patents - without them no investor would be interested, and without investors no money hence no developments.

 

Now the cases you mention, of a style of music, or a style of novel (detective etc) is quite clear cut: those are not industrial applications.

 

To say that software is exactly the same, or allowing software patents is the same, is jumping a bit too fast, just as EVERYONE ELSE currently is doing.

 

I have argued with the mp3 case above that at least in _some_ cases that ARE REAL and not just imagined, it makes sense to be able to protect investments and that COPYRIGHT does NOT SUFFICE.

 

If it innovative and novel then noone lese will stumble onto the idea therefore why patent it.

Ehm, well, to make sure that if you go through the effort of working out the intricate details, going up the wrong path a few times (which is common and costly, it's an integral part of research and development), etcetc, you don't give away your technology the moment you put your product on the market. Without any patent anyone can copy and you're out of luck, sorry, no return on your investment of gaining the knowledge necessary to come to your solution.

 

BTW allowing patents on ideas is indeed stupid - people have ideas but they won't have more if they get more money for them, they'll just milk them more. This is in no way motivating - if you get lots of money out of your single idea, you'll retire and enjoy life in the sun on the beach, and not continue to develop. Unless you're really a developer at heart, who really likes to do that, and guess what: in that case, you'll also just develop with regular rewards (i.e. a normal salary) instead of jackpot like money that successful patents bring in.

 

 

By the way, you also said:

This is exactly what most software is...

Which is exactly why _most_ _software_ cannot be patented.

 

This whole discussion centres on what exactly the European proposal contains, and as far as I know it still contains the points I mentioned before, that things must be novel, non-obvious and have an industrial application.

So if your software is something that doesn't fulfill these 3 points, no way you can patent it.

Again, these 3 points are not perfect, I'd like to see a watertight description of points that are useable in reality and that fulfill the initial goal: to protect the investment - without protecting non-investments.

Saying: any (part of a) software application should not be patentable is really going way too far, as I have argued before.

 

The reason ideas are not patentable is that having an idea in itself doesn't cost anything, so what investment is there to protect?

Some of the pro swpat people are software programmers that just have the wrong idea - they are coders (for some small or even their own software house) and believe that to have a good idea gives them the right to claim riches.

I don't want to be associated with this kind much more than with the anti-camp who claim swpatents are as bad as allowing and approving of rape.

If you really have a good idea, the Nobel prize will be waiting for you.

 

 

So we seem to agree that ideas should not be patentable, software or not.

Right?

 

Do we agree that like in the case of mp3, the particular methods of using algorithms in particular applications should be patentable?

 

Again, I know that it's easy to get carried away and say: but if you allow that, then next......!

(I think the rape line was along that line: if you allow software patents today, can I share your daughter with my mates tomorrow? or something..)

Let's just first say, this: yes, that, no, the rest, under discussion.

 

My position at this moment: for any technology that cost an investment (maybe one could say: a considerable investment), be it software or hardware based (I see no reason to link solely to one or the other), and that is really new and not trivial, hell yes, let the developers protect that technology.

 

Lots of software patents indeed seem to trivial and not new - but maybe they were not trivial at the time they were filed, and second, maybe the USPO and other patent offices are indeed to easy with accepting them.

By the way, it is the same for non-software related patents. So nothing special there, it's not the law that is wrong in such cases, it's the execution of the rules.

 

Another thing: for software, indeed, I can see that it may be stifling if a patent is enforceable during 20 years, but again, those patents should have a shorter lifetime should maybe not be enforceable at all...

 

I think here I've come to a point where I see why some patents that are related to software should not be allowed, and others should be.

 

No one is fighting clearly for what I have come to make up my mind about.

 

Oh by the way, did you know that the ffii influenced European parliament directive, if accepted as they are, would actually rule out any patent on signal processing? On CPU's? On lots of things that everyone agrees on so far that they should be and indeed today are patentable?

 

 

 

On a side note, MS has so far not used SWpatents but still they screwed up the market - much similar, no investor will back you if you indicate that your software developments (disregarding the whole patents discussion) is going to go head to head with anything MS.

Unless you're already a big (BIG) name. (IBM, RH, Novell, etc).

Point is: MS doesn't need swpats to screw things up, they're doing just fine even without them.

[Gowator]

Yep a very small amount of SW may be patentable.

 

But if you take a word processor then it is just an electronic replacement to a piece of paper and pen... most software falls into this category...

 

That which doesn't .. well its hard to say. The Idea of a computer database perhaps though it is largely a linear progression from replacing card indexes ...

 

Some of the patent descriptions are along the lines of 'a method to do xyz using a computer' .. I can think of lots of concrete examples of programs that shouldn't be patentable and even processes within progs (like the famous one click Amazon)

.. but I am strugling to think of any non specific SW that could be patentable ... because copyright would be insufficient.

 

Equally I wonder if CD-R might not have come to market quicker without phillips having the patent.

 

 

M$ is arguing trademarks and copyright right now but they are applying for patents like there is no tomorrow.... it is my opinion they will combine the three IP mainstays to hurt everyone else.

 

Over DVD playback I beleive you are wrong...

I think we have apple to thank for challenging this in court since they couldn't play DVD's either since M$ had already bought out the license holders in order for them NOT to sell it to others. Linspire got it on the back of Apple!!

 

I havent checked this but this is what I have from memory ....

M$ payed for exclusive rights to purchase licenses to prevent competition purchasing them. Exactly the type of problem Im describing....but once again it is the overlap of the copyright of the movie and the format with the patent on the players....

I can buy a DVD player for instance with a license BUT that license is limited to WinBlows because that is the software used to verify the license.

 

This is incorrect because it presumes my guilt. It disables my playback on the grounds I might be using a OS that can copy DVD's (that was the FUD sowed by M$) .. but in reality it was a means to prevent the market ..

 

The hardware patent in this was intergral ... only manufactuerers who would join the M$ cartel got to buy rights to make the hardware and as usual if they tried to make it for the competition M$ used its weight to have em squeezed out of the cartel.

[aRTee]

Read this about OEM licenses, I know it's about embedded but that's the market this is targetted at,

http://www.gocyberlink.com/eng/press_room/...view.jsp?id=566

BTW windows does not verify any kind of dvd playback license.

 

I don't see an overlap of the copyright of the movie and the format that is patented.

One is about content, the other about technology. No overlap there, except that certain content makes use of certain technology.

Finding nemo on xvid is still under copyright. But for playback you don't need libdvdcss, since it's not making use of that technology.

What overlap?

 

In any case, you said:

Yep a very small amount of SW may be patentable.

 

So you agree that some software getting patented is not bad, others is.

 

My point exactly.

 

In the same vein, I can say:

Yep a very small amount of HW (hardware) may be patentable.

 

And this is equally true.

 

That IN BOTH CASES there are issues is no reason to state that SWpatents are by default wrong. I think that many HW patents are also bogus. Some are good though, and in Europe the patent offices look very much in detail what you're trying to claim, so European patents are less likely to not be upheld in the courtrooms.

 

So my issue is on one hand with the black and white: swpatents are bad

-- they are not, if the proper guidelines and rules are in place and are followed - and in practise, sure you can find some that are bogus - as is the patent on the wheel - but no one argues from that point that since some guy patented the wheel and some other guy patented the swing, patents must be done away with.

Or swpatents are good:

-- they are not, if they are describing some functionality that blocks everyone else from implementing the _same_ functionality in a completely different way, - in which case they are basically patents on ideas, which are unacceptable.

 

 

Edit: failed to mention:

most regular things are not patented, word processors etc, nor are they patentable _and_ enforceable. See again the stuff I wrote about patent offices, in Europe they check, in the US they cash the check.

About Apple and dvd playback: they had it since the beginning, which is years before Lindows was founded. Or I missed something - at that time I had no big love for apple (Steve Jobs lying all over the place to hid bad powerpc cpu performance etc.) so I may well have..

 

And yes, it was about copyright control, MS is good friends with the MPAA, since MS controls most pcs and so can have all users play along with what the MPAA wants.

All users? No! In one village, .... (do you read Asterix? If you do, great huh! if you don't, go out and read some... :P )

 

So it sure as hell was about copyright control and fair use limitations. Don't forget that programs to rip dvds on windows are all based on the crack that's at the base of libdvdcss.

 

MS saw a nice side chance to keep control.

 

But once again, the hardware industry didn't use their patents here.

 

It was the use of the DMCA. US law.

The case of DVD Jon was unrelated to patents.

Edited November 26, 2004 by aRTee

[Gowator]

I'll admit some SW might be but I honestly can't think of any right now.

 

however I can think of hundreds of hardware things that can and are.

 

When I said mixing or combining different IP I meant when the same company has access to different IP on items that overlap.

i.e. one company and control the content (copyright) with the trademark (say DivX or DVD) and the patent (DVD hardware or decoders)

 

So I am OK with firmware being copyright in many cases (I think)...because the firmware is intrinsic tothe hardware appliance but not the formats.

 

About Apple and dvd playback: they had it since the beginning, which is years before Lindows was founded

Im quoting a friend who is an avid Mac user here... they compained for a long time but Apple 'claimed' they couldn't because of the patents... this might be lying on their part, I wouldn't put it past em...

 

And yes, it was about copyright control, MS is good friends with the MPAA, since MS controls most pcs and so can have all users play along with what the MPAA wants.

All users? No! In one village, .... (do you read Asterix? If you do, great huh! if you don't, go out and read some...  )

 

So it sure as hell was about copyright control and fair use limitations. Don't forget that programs to rip dvds on windows are all based on the crack that's at the base of libdvdcss.

 

MS saw a nice side chance to keep control.

 

But once again, the hardware industry didn't use their patents here.

 

I think they did. I think they would not license them to other OS's because MS made a 'deal' that they would pay more for exclusive rights... I know most DVD ripping is done in Win... so did M$ .. and I doubt it worried them but if they could pay for exclusive use of other patents then that is the question. the patents were used to prevent those not in the DCMA club from making the hardware that could be used with non-club members.

 

Look at it this way...

Lets say I dicover a universal cure for cancer or AIDS...but glaxo welcome make me an offer of a gazillion $ if I don't let anyone licence the product.. is that OK?

 

I think in this case glaxo would say they have a right to recover development on their cancer/AIDS treatment drugs... what if they already have a cure but have decided not to share it... and its patented so if anyone else discovers it they can't even make it?

 

This is quite an extreme case but lets go from here to say a cure for smoking... what if the tobaco companies patent it then refuse to let anyone make it? Sure people can quit without it...

 

Not everyone needs a DVD playwer of course nor even a word processor but the format of a word document is theoretically the IP of M$... Just as the format of a DVD was the prooperty of whoever... it turned out to be easy to reverse engineer and we know a word doc is... it might not be patentable but then how is a scroll bar patentable. (Munich patent office)

 

imagine for a minute only one druid has the right to make the magic potion and the Romans buy him out.

[aRTee]

Gowator,

do you know that if you don't try to industrialise on your patent, you lose your claim?

 

I suspect many don't know this, but this I remember from my classes on patents.

 

Sure, there are ways around it ("we're working on it, we'll create some product") but that's on the practical implementation side, still no argument that the goals of the current patent system are wrong.

 

About the whole cancer treatment - you're talking about the failings and wrongs in the patent system in it's current inception, whereas we were discussing software patents.

 

I agree, there should be no mention or strict relation to software - to me it's all the same whether it's software or hardware - if it answers to the patent rules (novel, nonobvious and with industrial application) (or better rules) it's not a big problem if it passes. To say that any software implementation _cannot_ be patented (which is what the current position is of all anti swpat camps) is IMHO not sustainable and injust.

 

Again, look at MP3, and tell me why it should not be possible to patent that.

 

 

To come back to dvds - I didn't know this apple thing, so sure, there may have been faul play. And sure, MS will try to abuse the system. That doesn't mean the system is wrong per se, or the foundation of the system. It just means it's not perfect and we have to watch every move MS makes.

 

BTW I was referring to the case of the MPAA against DVD Jon Johannson (or whatever his exact name is), where they tried to outlaw libdvdcss or decss.

By the use of the dmca, .. but recently I read some comment of a judge that more or less stated that libdvdcss for watching dvds is not so much a violation of the dmca....

 

Any protocol may be patentable, software layers, you name it. As long as it's not the discription of some functionality (i.e. the idea, as in: the idea to use dct for image compression) but the exact implementation of such a functionality (jpg), which also means that the general method is not protected (like png vs gif, ogg vorbis vs mp3) I DON'T SEE ANY PROBLEM.

If you write your own method to do something, as is the way to go in FLOSS, you'll implement your own algorithms in your own way, you're normally fine. If it's too hard to figure out what to do, and some company has patented some method and made it work, then you're using their knowledge if you implement their solution - and I say, in that case they deserve their patent, it was clearly non-trivial and novel.

If it was easy and there was really only one way to do this, then it is obvious, and the patent should not pass the test of nonobviousness.

If it somehow still passed, this is a fault of the patent office, NOT of the system.

 

i.e. one company and control the content (copyright) with the trademark (say DivX or DVD) and the patent (DVD hardware or decoders)

So what? You're not forced to use consume their content, are you?

BTW I don't see what TM has to do with it...

 

I mean, hell, apple controls Mac OS X and I can't (easily) have it on my x86 pc. Boohoo! They're using their IP agains my freedom!

 

 

In the end, my point is that in general I see no reason to distinguish between soft and hardware, and I see no reason to say that by being a software implementation some invention should _not_ be patentable.

 

 

On the other hand, I agree that many things can be improved in regards with patents, the whole system, including normal/hardware patents.

But that's not at all under discussion in the EU.

 

 

I know, it's easy to fall for the 'yes but if that's going to happen the next thing is that MS the bad boy bully will harass the other kids more' gut reaction of: 'we must not let this happen'... Close to FUD if you ask me.

 

Your example is along the same lines: if I get cancer I won't get the cure because some corporation wants to make money.

So I better be against patents, then I won't have to die.

 

Right.

 

Ehm, no. Maybe for medication, it would be good to have government funded institutes doing the research. After all, medical care is something for all.

But again, this is 'hardware' patent stuff. Not for discussion here really.

[Gowator]

Firstly: The current implimentation is wrong. Everyone agrees to that.

Secondly: We cannot disguard other IP mechanisms at the same time as addressing patents because they will be used together. i.e. DivX is a trademark now....which seems faIr but Windows is also a trademark which seems ludicrous.

 

I brought in drug research because it has huge development costs and as you say affects everyone. We (you and I) have been brought up and trained that patents are the lifeblood of engineers.... (my family have quite a few patents) however I'm not so sure they are as overwhelmingly positive as I was taught. My brother spends a fortune patenting in cycles to keep ahead of the competition ... he started off taking over from my father with existing patents which are now expiring and now he is trapped ina cycle of patent or die (as a parody of publish or die)...

 

Also he is forced to make modifications he doesn't want or are pointless just to add a patent..

 

So the compay would probably have never existed without patents in the first place perhaps... but now it is trapped ina cycle of 'innovation' for the sake of patents not for the customers!

 

do you know that if you don't try to industrialise on your patent, you lose your claim?

Erm yeah but this is so simple to get round .. its probably even convenient in the EU where workers rights make it difficult to get rid of useless people. You just underfund a team of useless people to do the industrialisation.

To say that any software implementation _cannot_ be patented (which is what the current position is of all anti swpat camps) is IMHO not sustainable and injust.

 

Possibly, I just think we should err on the side of caution and not pass it thinking we can change it back later.

I have my own personal theory on 'change' which Im sure is part of some management training thingy but I divide progress and change into 2 dirrections...

1) We can make the change and if we don't like it switch back as easily or more easily than making the change...

2) If we make the change and we don't like it switching back will be very hard.

 

I put extending patentability into the 2nd area. We already have many illegally granted patents in Europe and the first thing to be done is to revoke all these patents and get rid of the corrupt beurocrats who granted them. If instead we just grant these patents then we have allowed the present system to have been bent and can expect the new system to be bent in the same way...

 

3) The reasons given 'being competitiive with the USA' suck! In general the USA is actually moving towards a less permissive patenting system while we are trying to leapfrog into some more permissive. In the end I see it as a pissing competition... who can pee highest up the wall.

 

Even statewise its pretty obvious where the patents are... it fits almost exactly the post election map.

 

By the use of the dmca, .. but recently I read some comment of a judge that more or less stated that libdvdcss for watching dvds is not so much a violation of the dmca....

Reminds me of pulp fiction... its legal to have it and legal to use it but...

 

MP3 - I guess it might be acceptable but then the problem with the system is what happends to those patents people want to leave open. The only way is to patent them and then declare them open. This is a expensive and time consuming process. Why shoulod ogg need patenting to prevent someone else patenting it.

The whole prior art thing doesn't even seem to be important.

If you look at the TM/Patent violations by Anhauser brusch ... they actually sued another American brewery and as a matter of court record submitted they had STOLEN the process used in Budvar and patented it so they and they alone were allowed the trademark Budweiser.

They actually submitted this to the courts... as proof of ownership of the process!

 

Where is prior art if they can admit its a copy of someone elses process?

 

To come back to dvds - I didn't know this apple thing, so sure, there may have been faul play. And sure, MS will try to abuse the system. That doesn't mean the system is wrong per se, or the foundation of the system. It just means it's not perfect and we have to watch every move MS makes.

The difference was Apple had the money to take issue....

In many areas however we probably never hear about it. We know we need to watch M$ but Im sure most companies will do the same given the chance. Most importantly I think the patent/IP system as it stands is just set up to self progogate until we only have mega coprs.

 

If it's too hard to figure out what to do, and some company has patented some method and made it work, then you're using their knowledge if you implement their solution - and I say, in that case they deserve their patent, it was clearly non-trivial and novel.

Well OK but what of scroll-bars amonght the other grey patents.

..and once again the prior art thing needs proof... this doesn't mean a couple of kids somewhere didn't already think of using scrollbars or 'one clik' but they dont have the money/resources to pursue it. the only way they might is by selling out their patent to a agressive patent lawyer to challenge the big company patenting it.

 

 

A long time ago I invented parking antenae with little flags to go inside car bumpers... then 5 years later I find Jaguar patent it.... unless my bro told em my idea they dreampt it up themselves.. which is OK except what if I built a business on this.. and then Jaguar sue me....

I do what my Bro had to do with another big manuf. and settle out of court.

He even has the patent for his invention but he can't afford to challenge a multinational in court and they know it... so in the end he cuts them a deal and they become his protection from the other big boys. If this model sounds like protection then go ahead and guess the company :D

 

Patents mean nothing when fighting a multinational. So the present implimentation is wrong and perhaps it might not be possible to have a system which does not penalise the small guy?

I'd say just because the idea is just and right doesn't mean it will work in society.

 

You don't need to beleive in communism for instance to see it would be a nice sytem as described but most people dont think it can/will work in a real world. Some animals will always be more equal than others. I think patents might be this way... or need the ideas completely rewriting from scratch!

[aRTee]

Too many quotes, so I'm posting this in two parts.

 

Firstly:  The current implimentation is wrong.  Everyone agrees to that. 

Ehm, no. Far from everyone. Ask the investors. Please don't forget, it's (mostly) their money that is making the developments possible that we want.

I also don't agree with that statement. I'd say: it's often not quite right.

 

Saying it's wrong implies we're better off not having it at all.

Which is something I completely disagree with.

I argued before on what happens to innovation if there's no protection of investment (patents) - fast followers and copiers 'take the lead' whereas by nature, they are not capable of taking any kind of lead since they don't develop.

 

 

Secondly:  We cannot disguard other IP mechanisms at the same time as addressing patents because they will be used together.  i.e. DivX is a trademark now....which seems faIr but Windows is also a trademark which seems ludicrous. 

Well, then the TM system should be changed. I don't see any TM as any kind of problem though.

 

I brought in drug research because it has huge development costs and as you say affects everyone.  We (you and I) have been brought up and trained that patents are the lifeblood of engineers.... (my family have quite a few patents) however I'm not so sure they are as overwhelmingly positive as I was taught.  My brother spends a fortune patenting in cycles to keep ahead of the competition ... he started off taking over from my father with existing patents which are now expiring and now he is trapped ina cycle of patent or die (as a parody of publish or die)...

 

Also he is forced to make modifications he doesn't want or are pointless just to add a patent..

 

So the compay would probably have never existed without patents in the first place perhaps... but now it is trapped ina cycle of 'innovation' for the sake of patents not for the customers! 

Nice example of things that currently go wrong, in the current patent system. I admit I must agree that it's far from perfect.

 

 

do you know that if you don't try to industrialise on your patent, you lose your claim?

Erm yeah but this is so simple to get round .. its probably even convenient in the EU where workers rights make it difficult to get rid of useless people. You just underfund a team of useless people to do the industrialisation.

To say that any software implementation _cannot_ be patented (which is what the current position is of all anti swpat camps) is IMHO not sustainable and injust.

 

Possibly, I just think we should err on the side of caution and not pass it thinking we can change it back later.

I have my own personal theory on 'change' which Im sure is part of some management training thingy but I divide progress and change into 2 dirrections...

1) We can make the change and if we don't like it switch back as easily or more easily than making the change...

2) If we make the change and we don't like it switching back will be very hard.

 

I put extending patentability into the 2nd area. We already have many illegally granted patents in Europe and the first thing to be done is to revoke all these patents and get rid of the corrupt beurocrats who granted them. If instead we just grant these patents then we have allowed the present system to have been bent and can expect the new system to be bent in the same way...

 

3) The reasons given 'being competitiive with the USA' suck! In general the USA is actually moving towards a less permissive patenting system while we are trying to leapfrog into some more permissive. In the end I see it as a pissing competition... who can pee highest up the wall.

 

Something else I've been told: the current pro swpat proposal supposedly only formalises what has been common accepted practice for years in Europe. I.e. there is no extending of patentability going on. I know that the anti-swpat camp claims otherwise, but considering the patent claims from the 'your webshop is patented' page which actually _passed_ and so are accepted as patents, it has been possible for quiet some time now to take patents on software.

 

So in that vein, it's not so much as making a change from current actual use/practice to some new way of doing things, rather than formalising the rules, and clearly stating the guidelines for all patent offices of the respective countries in the EU.

Edited November 28, 2004 by aRTee

[aRTee]

Part 2...

 

Even statewise its pretty obvious where the patents are... it fits almost exactly the post election map. 

The US situation is not in any way relevant, except as an example of what effects what legislation may or may not have.

 

By the use of the dmca, .. but recently I read some comment of a judge that more or less stated that libdvdcss for watching dvds is not so much a violation of the dmca....

Reminds me of pulp fiction... its legal to have it and legal to use it but...

 

MP3 - I guess it might be acceptable but then the problem with the system is what happends to those patents people want to leave open. The only way is to patent them and then declare them open. This is a expensive and time consuming process. Why shoulod ogg need patenting to prevent someone else patenting it.

The whole prior art thing doesn't even seem to be important.

If you look at the TM/Patent violations by Anhauser brusch ... they actually sued another American brewery and as a matter of court record submitted they had STOLEN the process used in Budvar and patented it so they and they alone were allowed the trademark Budweiser.

They actually submitted this to the courts... as proof of ownership of the process!

 

Where is prior art if they can admit its a copy of someone elses process?

See my comment above on what goes on in the US. The US system doesn't work right? Sure. Is this news? No. I fail to see how a failing US system is relevant to the EU.

 

 

To come back to dvds - I didn't know this apple thing, so sure, there may have been faul play. And sure, MS will try to abuse the system. That doesn't mean the system is wrong per se, or the foundation of the system. It just means it's not perfect and we have to watch every move MS makes.

The difference was Apple had the money to take issue....

In many areas however we probably never hear about it. We know we need to watch M$ but Im sure most companies will do the same given the chance. Most importantly I think the patent/IP system as it stands is just set up to self progogate until we only have mega coprs.

Maybe so.

But the issue at hand is swpatents. You're arguing against patents in the broad sense. You've seen my reasoning on the idea behind such a system.

I see no argument against the (idealised) patent system as I described - only examples of cases where the current implementation goes wrong. I do agree that at times things go wrong.

But I'm convinced that such a system is necessary.

Prime example: with a proper patent system, we wouldn't have had to wait 200+ years before people could once more create violins with the sound quality of Stradivarius (yes, it seems that with modern technology it's again possible to make such excellend sounding instruments, but that was unreachable for hundreds of years).

 

 

Well OK but what of scroll-bars amonght the other grey patents. 

..and once again the prior art thing needs proof...  this doesn't mean a couple of kids somewhere didn't already think of using scrollbars or 'one clik' but they dont have the money/resources to pursue it.  the only way they might is by selling out their patent to a agressive patent lawyer to challenge the big company patenting it. 

Scroll bars: I don't know who came up with the idea, but imho this is an idea, and as such should not be patentable. Same as one click.

 

 

A long time ago I invented parking antenae with little flags to go inside car bumpers... then 5 years later I find Jaguar patent it....  unless my bro told em my idea they dreampt it up themselves.. which is OK except what if I built a business on this..  and then Jaguar sue me....

I do what my Bro had to do with another big manuf. and settle out of court. 

He even has the patent for his invention but he can't afford to challenge a multinational in court and they know it...  so in the end he cuts them a deal and they become his protection from the other big boys.  If this model sounds like protection then go ahead and guess the company :D 

If you built a business on it, you would have had to protect it with a patent, at which point you would have beaten Jaguar to it, so they would have had to come to you (since the patent office would have told them you already had the patent), or they would have beaten you, in which case I don't think you'd ever find the money to build a business.

Why would your bro have to settle out of court? This is Europe, settling out of court is normal in the US since the winning party cannot claim all money back from the losers - in Europe, lawyers work for nothing if they think you have a case, since the losing party (the other guys) will have to fork out their salary in the end.

The bigger the fish, the bigger the lawyers on your side - if they think you have a case. Jaguar is a very big fish - if you'd have had a patent, you'd have won.

If you don't have a patent, but you can show that you openly talked about the idea, it's prior art and their patent is worthless - and you can still do your business.

However, as soon as you bring your product on the market, the Asians will copy it and you will have 0 margins. So I honestly don't see where you can make a dime without a patent.

 

 

 

Patents mean nothing when fighting a multinational.  So the present implimentation is wrong and perhaps it might not be possible to have a system which does not penalise the small guy? 

I'd say just because the idea is just and right doesn't mean it will work in society. 

Bull. Lots of small companies are helped by the patent system.

 

Another thing that people seem to forget - everyone always screams that the big corps just do cross licencing. Well I have some inside info: this is out of fashion - the deals of cross licencing are less and less, now they all want others to pay for their stuff.

 

You don't need to beleive in communism for instance to see it would be a nice sytem as described but most people dont think it can/will work in a real world.  Some animals will always be more equal than others.  I think patents might be this way... or need the ideas completely rewriting from scratch!

 

You don't need to believe in capitalism to see it would be a nice system for some but absolutely crap for others.. go out and have a look.

 

Communism doesn't work because it presumes that people are capable of sharing.

Democracy doesn't work because it presumes that people are capable of thinking.

Edited November 28, 2004 by aRTee

[Gowator]

quick reply:

The reason the US system is relevant is this was a stated goal of Brenda McCarthy to compete against the more open American system and to protect european companies.

 

Bull. Lots of small companies are helped by the patent system.

Until they actually challenge a multinational..

 

hmm Ill pm you this....

[aRTee]

Ok, some comments to an older message of Gowator, which indeed has good points.

 

We would not have dvd recording technology. And do you know why it took 10 years after the introduction of the audio cd to have cd-r?

Because Philiips was also owner of Polygram, a record label, and they were afraid that the audio cd business would suffer, or even be destroyed.

Please note: due to the patents on cd technology the management was able to be convinced that they really had to put things on the market or they would never make money of them. Without patents they would have milked things as long as possible. You don't slaughter your hen that lays golden eggs, you have her lay some more.

-edit- due to patents, competitors could know what's really driving cd (rom, audio) and so they could have conceived a competing system if Philips hadn't brought cd-r to the market.

 

OK so I don't see this. From my standpoit patent's allowed Phillips/Polygram to not develop the technology safe knowing noone else could... while at the same time knowing that an alternative format would go the way of betamax.

 

Why? If a competing type of cd would come by, that was not compatible but offered the recording option, it likely would have won, at least it would have won over the home consumer - which is what matters.

Don't forget, AFAICR VHS came later than VCC/V2000 and betamax. In any case, dvd+- r(w) came long after dvd-ram, and it's still beating the pants of dvd-ram in sales numbers (maybe not installed base yet).

 

People already had CD players etc. therefore Phillips was able to use its patent to prevent further development for a while.  Without the patent it would have been easy to just copy the technology ... its hardly recket science so I would view it that it held back technology in this case. 

Well, it sort of was rocket science, Philips and Sony developed it together and at that time no-one was able to create a competing system.

 

The mere fact that no one could create a competing system, means that they really had complex stuff there. Without Sony and Philips to make and market it, it could have taken longer for cd/dvd recording technology to come about than it has now.

 

However this is not isolated because software and even computer hardware develops in a different time scale to engineering.  Fromt he Wheel to The motor car was > 10,000 years and even from the Wright Bros to Gargarin was over 100 but from the 286 to the P-IV was 30 years... 

 

This brings me to why we had patents in the first place: 

Pre-Industrial revoluition we didn't need/use them. 

If copernicus designed a telescope then Galileo could make one too. Indeed it was encouraged and a measure of sucess to be copied.  However people became known for workmanship, Chipendale, Wedgewood apparently made great furniture and pottery and people were willing to pay more for it. 

In the same way certain violin makers, telescope makers etc. were all known for quality.  Pilkingtons were known for glass and Im sure many other artisans became manufacturers based on quality. 

And along came Stradivarius, who took his secrets into the grave since he had no need to share his knowledge with the world, and the world was without such fine sounding violins for ages.

 

Then the machines came. 

 

Unlike a cupboard they needed more complex design and standardisation. 

They were designed as opposed to put-together and this all took time. 

Patents were away to allow the expensive development allow the manufacturer time to get their machine to market and establish a market. 

As an extreme case perhaps you couldn't sell steam locomotives until the track was built... etc. 

 

So now we have many clever designs... just go to any Ikea near you and we have patented easy-hold handles in a patented easy-open drawer etc.  Not this is bad or evil but what is the point......

 

Patents grew alongside other things such as safetly regulations and it is hard to seperate the two.  Developing a car needs safety... and even wa weaving machine is a dangerous thing.  Thus a process of testing and retesting was necassary for certain items.  Again the patent system allowed a safe testing period without someone else just taking the device and copying it. 

 

Designing a modern car costs millions or billions...  hence this is a huge investment to protect ... so companies started to patent the parts of their cars. 

The concepts were well established 4 wheels and an engine and noone thought to patent this back then.  We saw a proliferation of car manufacturers, names we no longer recognise...  but incrementally these were reduced down to the 5-6 we have today. 

But 4 wheels onto a car/vehicle is nothing but an idea. Which in no case should be patentable.

 

I don't think patents are altogether to blame but I think they are a large part of this. 

We have 5-6 car manufacturers , the same number of record companies etc. all down to protection of IP leading to consolidation.  Again we the customer have missed out.  Patent's are now firmly divided into a us/them. 

 

The individual can no longer invent and patent, they need the financial backing of a corporation in order to afford to patent...  I see adverts from Andersen etc. offering opportunites to inventers to be like Hoover the janitor. 

 

Why.... wasn't the patent system to prevent the idea being stolen by the big guys while the inventer got stuff together and got it to production? 

Now only the big guys can afford to patent but everyone else can't afford NOT to patent! 

 

Instead of beiong able to submit my patent I now need a patent leech to do it for me.  Some lawyer-leech that will take a considerable percentage of my idea just to protect my idea from being ripped off? 

 

Hence the time of patents has run its course.  they are now being abused and have become self perpetuating...  like every other capitalist ideal they cannot continue unchecked without intervention. 

 

Ehm, no, the patents where never for the individual to be able to become rich fast - this just happened at times, where a single invention or just idea (paperclip) made lots of millions.

The point is: individuals DON'T push technology forward. That time is over, it ended decennia ago.

Technology firms push technology. It has been like that as long as I live.

No individual has the funds to DEVELOP, there is no INVESTMENT. So why should there be a protection of this non existing investment?

 

If you really have such a good idea that, once developed into something real could really be innovative, then you have to get some investors. And: you (and they) will want to protect the idea, so you need the patent system.

 

You see, without patent system, the individual brilliant inventor will never ever have any possibility to do any development. With a patent system, he doesn't have a big shot, but there is a slim chance.

Aside this, I don't see where individuals are pushing technology anyway.

 

 

Now I bring in the M$ word.... 

I mentioned TIME aspects... the time to tool up a factory and train a workforce etc.  and the fact that the product should have some value to the customer in terms of quality/cost ratios....bedside cabinets or airplanes have considerable manufacturing costs and the prices are largely regulated by this.

 

The market more or less says find a way to do it cheaper....

 

Software costs near nothing to reproduce. 

 

If I lease a car I pay more because the leasing company has depreciation on the car and must maintain it.  If I lease software then it costs NOTHING to lease  ..  all costs are really just admin costs not manufacturing/distribution costs.  Even a CD costs cents of a dollar/euro to reproduce and upgrades are a bit of bandwidth. 

 

It is like patenting a printing press for money.

 

Whoah... you can't just print money....

 

But you can when you have squeezed out the rest of the market. 

OpenOffice and Firefox have shown what can be achieved from FREETIME and linux itself what can be put together and then distributed for FREE. 

That never applied to cars or freezer's...

 

In the same way as this can be distributed for free the flip-side is that M$ must squeeze out the rest of the market to survive in its present form and that is the only form they know. 

This is why record companies and M$ are the prime examples of patent abusers. 

They use patents not to protect investment but to squeeze out the competition. 

 

Indeed, it wouldn't surprise me to find out that M$ spent 1000x the development costs of Internet Explorer "defending its investment."..  because the investment was market domination not the IP of IE.  The money was spent to destroy netscape, not to protect IE... 

Ehm, they never used patents for that, they had contracts with resellers/oems not to offer Netscape on the preinstalled systems.

 

BTW OOo was Star Office before, and the bulk of it was commercially developed.

Lots of FLOSS is done by paid for developers nowadays, OSDL, RH, SUCE^H^H^H^H SUSE (sorry - know you know french and couldn't resist) / NOVELL, Mandrake, etcetc.

I'm not saying that _most_ of the code in your average Linux distro is developed by paid for developers, but lots is.

 

Anyway, almost everytime MS and their bank accound saldo gets dragged into the discussion it's to play on the emotions in a FUD-like manner: if I am not against swpatents, MS will eat my children....

 

Now I'm not saying they won't.

 

The extreme low development and duplication costs of software make it a completely different ballgame to designing airplanes.  This ballgame was explored a long time ago with the written word and resulted in copyright. 

 

The intangible nature of software also makes it different.... of course this affects duplication costs ... hence the reliance of the corporations on IP to prevent this... 

but also in terms of what is an idea_of and what is a real invention (idea)

 

This is i think your big grey area or one of them....

 

I saw sonme guy on Sat night live claiming a football play should be patentable etc.  this is the area SW patents are drifting....

 

Mice, windows, icons etc.  all these have been patented as IDEAS... 

The idea of using a scrollbar to move up/down the screen...  because there is no real way to demonstrate these in an engineering drawing without referring to the idea more than the specifics. 

 

Think about the specifics of a a scrollbar...  it is its size (relative and absolute) shape and 'tactile' feel maybe...  its icons etc. 

except we find we are describing what in linux we could call a THEME. 

The actual mechanics of it ...aren't enough to make a patent... therefore the patent drifts into the big grey zone where idea_of merges with the idea. 

 

English isn't the best here....  but impression vs idea in French....  j'ai l'idea de.....

ou j'ai l'impression de.  ...

(Im sure other languages will have a bigger differentiation over this too)

 

 

Prior art will have to wait: except to say it isn't being rigrously applied and then it is being COMBINED with other IP such as trademarks to achieve the same affect.

 

Ideas should not be patentable, and in software, the function should not be subject to the patent claim, but the implementation.

 

Have you read the patent claims that the webshop is complaining about?

From here: http://webshop.ffii.org/

the first one: Webshop: Selling things over a network using a server, client and payment processor, or using a client and a server - EP803105 which is linked to:

http://l2.espacenet.com/espacenet/viewer?P...gb&LG=en&DB=EPD

 

If you read the text, I think you'll find that there are so many ways to get around this patent that it's no risk at all.

Besides, it has been requested, the linked patents don't show at all that they have been granted (that I can see).... imho they are quite trivial too.

 

Also, look at example 5, and the related patent claim - I don't see that claim describing that example. IANAL, but the actual claim is not being read in the narrow sense here, so sure you can include lots into this claim. Please look at that very claim, the EP that is requested, and look at figure 3 in the patent application.

http://l2.espacenet.com/espacenet/bnsviewe...+++0537100A2+I+

 

NOT AT ALL what the preview image on the webpage of the webshop example 5 is.

With this in mind, I don't see how the holder of the patent can actually tell you you cannot put preview images on your webpage.

Similar comments apply to the 'no streaming video' (no. 7) - the patent states clearly:

In a system for distributing videos,

So, a normal website or webshop is not a system for distributing videos. This is clearly a claim about Video On Demand.

 

 

So my point is, from the abstracts of patent applications it may seem they are about some general idea, but the actual claims are about implementations of ideas (which leaves room for variations), at least as far as I can see, for all those cases where I had a look to see what they actually claim.

 

Added to that that there are more pages to an application, becoming more and more precise as to what is claimed (should the more general case not be without prior art, too trivial or whatever) - usually it is those precisions that are really enforceable (from what I understand).

 

 

So when you say: the scrollbar is patented, I say: are people actually paying for the use of scrollbars?

Same with the mousepointer (the device itself is hardware - and for some specific hardware implementation I don't see why it should not be patentable, as long as it's specific).

 

 

All in all, I agree, that 20 years may just be too long, especially in the software world - it may really hamper the pace of development.

 

I'm getting closer to finding the degree/shade of grey I'm looking for, so thanks for this IMHO useful debate.

[aRTee]

quick  reply:

The reason the US system is relevant is this was a stated goal of  Brenda McCarthy to compete against the more open American system and to protect european companies. 

 

Bull. Lots of small companies are helped by the patent system.

Until they actually challenge a multinational..

 

hmm Ill pm you this....

<{POST_SNAPBACK}>

 

Ok, but when I say the US system is not relevant I mean the failings of it, how things work there and more importantly, are abused there.

 

I don't know what you're intending to pm me, I hope that if it's relevant to this discussion you can put it here - so that others can follow and join in if they want to.

If it's 'private info' feel free.

[arthur]

just a quick question...isn't mp3 just a form of signal processing, which you said wasn't patentable?

[aRTee]

I said that the proposal of the anti-camp will make it impossible to take patents on processing, and yes, if that happens mp3 patents will not be enforceable anymore.