Re: software patents threaten open source

Gerald Cheves wrote:
> In a recent interview with the BBC Bruce Perens expresses concern over 
> the way software patents could limit software development to only large 
> corporations.  He says *" We're looking at a future where only the very 
> largest companies will be able to implement software, and it will 
> technically be illegal for other people to do so"*
> 
> I guess what I really want to know about the issue of software patents 
> jeopardizing the future of the open source software movement is if a 
> software, such as Linux, was patented but not enforced, could there 
> continue to be contributions from anyone, and could it still be 
> customized for personal use?

In most countries of the EU patents cannot be enforced against personal 
non-commercial use; nor against laboratory experimentation into how a 
patent works.

But patents can be enforced if a patent-infringing product is 
distributed (even for free), or if used within an organisation for any 
purpose except direct research into the patent itself.

Putting a patched version of Linux on a website would /probably/ count 
as infringing distribution, because the patent-owner could claim that it 
had a commercial impact (even if no money was changing hands), by 
diminishing the value of their property.

Linus has certainly already rejected useful techniques (eg in kernel 
memory management) because they were patented, and nobody could produce 
cast-iron prior art.  And such examples are just the tip of the iceberg.

So, in summary: you could maintain a patch-tree of your own for your own 
personal use, or for experimentation into the practical usefulness of 
the patent.

But, if you publish or distribute the patches you run the risk of a 
legal nastygram, followed by an injunction and/or damages if you do not 
immediately comply.


> And is the patent process so expensive and so arduous that a small 
> software developer could not easily get a patent?  

Yes.  Writing a patent is not cheap.  Searching for the prior art is not 
cheap.

Costs for the application maybe in the order of say £30,000; more, if 
you get told to rewrite it by the patent office; and then you'd have 
regular patent office renewal fees also to pay.

Over and above that, if you had to use - or defend - your patent in 
court, you could easily be looking at legal costs of £1 million.

> What would make 
> software patents "technically illegal?" 

The European Parliament amendments do a pretty solid job; but the 
software and electronics majors are lobbying member state governments 
very hard to confirm EPO-style software patentability, and reject the 
Parliament amendments.


-- Oh sorry, I've misunderstood you.  You mean, under what circumstances 
would use of a patented technique be "technically illegal"?

Well, if you don't comply with the lawyer's nastygram [ie stop 
distribution, and let them come fishing for any information they want on 
who might be using your previously distributed code] they can sue you 
for damages and/or apply for an injunction.  If you don't comply with 
the injunction, you can go to prison for contempt of court.

There's also concern that early drafts of the upcoming IP Enforcement 
directive appear to make some patent infringements directly criminal.

> The idea of having to consider 
> protecting software with patents seems to be anti-open source.

Obviously completely free, freely redistributable Free Software is not 
compatible with paid-for patent licences.

Some patents can be worked around.

Some patents have been licensed royalty-free (RF) for GPL software.

Some patentable techniques may be made available as bolt-on closed 
source modules, either paid-for or gratis (cf some graphics drivers).


But to a large extent, a patent /can/ allow a company to choose who 
their competition is.

None of the above options will necessarily always be available.  And it 
doesn't take too many missing features to make a computing platform 
non-viable for almost all users.


All best,

    James Heald.