patents and open source

[Jerry Feldman]

Maybe we should have a meeting on intellectual property in general.


On 05/09/2009 02:04 AM, Tom Metro wrote:
> A Linux Magazine article on how software patents are used (in this case=
,=20
> specifically by Microsoft) to tamp down open source competition.
>
> Trimming the FAT: Linux and Patents
> http://www.linux-mag.com/id/7325/
>
>    Microsoft has long been claiming that there are hundreds of patent
>    infringements in the Linux kernel, but has never come to the party
>    to tell the free software world what they are. The reason Microsoft
>    does this is because they feel that it keeps the balance of power in=

>    their hands and enables them to use the threat of patents to fight
>    the adoption of Linux.
>
>    The truth of the matter is that if the patent issues were made
>    known, the free software world would work around them, solving the
>    problem. Unfortunately this is a problem Microsoft wants to have and=

>    so to maintain leverage they aren't publicly disclosing their
>    claims. Microsoft has been approaching companies to pay royalties
>    over patents, and forcing them to sign non-disclosure agreements so
>    as to not release the details of the deals. But this backfired in
>    late 2008 when TomTom refused to accept the terms Microsoft was
>    presenting and the patents were then thrust into the public
>    spotlight.
>    ...
>    TomTom uses the Linux kernel's implementation of the VFAT file
>    system in its devices and when the company refused to meet
>    Microsoft's demands for royalty payments, Microsoft in turn filed a
>    patent infringement action against them in February 2009.
>    ...
>    Andrew Tridgell recently submitted a patch to the Linux kernel which=

>    bypasses the VFAT patent issue in question. The fix addresses the
>    core of the long filename issue, creating files on a VFAT partition
>    with names longer than the 8.3 standard, that is; eight characters
>    for the filename and three for the extension. In hindsight the fix
>    is very simple; just don't allow the creation of filenames with more=

>    characters than the 8.3 standard permits. The patch still allows the=

>    system to read pre-existing longname files and supports case
>    sensitivity. By default however, new files are created in the 8.3
>    standard, all in uppercase.
>    ...
>    Microsoft wants the world to believe that there are major patent
>    issues in the Linux kernel, without telling what they are. By doing
>    this they are trying to create a cloud of uncertainty around the use=

>    of free software and as a result are hoping to deter companies from
>    taking up the technology over their own. By moving any patent issues=

>    into the public spotlight however, those in the free software world
>    can help break down the cloud of fear, uncertainty and doubt that
>    Microsoft is spreading. The future problem will be, are companies
>    willing to fight back and make details of the patent claims public?
>
>
> I'm not sure why the above article, dated May 6th, 2009, didn't mention=
=20
> that the patent suit against TomTom was settled back in April:
>
> http://www.sdtimes.com/link/33382
>
>    Star-crossed patent litigants Microsoft and TomTom have settled
>    their differences out of court; financial terms were not disclosed.
>
>    The settlement requires TomTom to pay Microsoft for coverage under
>    eight car navigation and file-system management patents for all past=

>    and future sales of relevant products. TomTom has also agreed to
>    phase out functionality related to Microsoft's FAT LFN (Long File
>    Name) file-system patents within two years.
>    ...
>    TomTom responded to Microsoft's legal actions with a countersuit,
>    alleging that Microsoft's Streets & Trips navigation software
>    product infringes on TomTom's patents. Under the terms of the
>    settlement, Microsoft will receive coverage for four patents from
>    TomTom.
>
>
> So it seems TomTom caved.
>
> On a more encouraging note...
>
> Experts mull changes to software patent process
> http://www.sdtimes.com/link/33433
>
>    In response to the controversy surrounding software patents, the
>    United States Patent and Trademark Office (USPTO) has tightened up
>    considerably on granting them, and they are now harder to get than
>    any other type of patent (except for business methods). That's the
>    view of Mark A. Lemley, a professor of law at Stanford Law School
>    and director of Stanford's program in law, science and technology.
>    ...
>    Lemley suggested that one of the easiest reforms for Congress to
>    enact would be a system that would give stronger patents to those
>    who are willing to go through, "a more searching review in the
>    USPTO."
>    ...
>    James Grimmelmann, an associate professor at New York Law
>    School...said that industry peer review would address some of the
>    most recurring and serious problems with bad software patents, such
>    as when patents are too abstract or in cases where prior art exists.=

>    "Programmers know the tricks of the trade that are not in the
>    universe of documents that USPTO reviewers look at," he said.
>    ...
>    The Supreme Court also raised the threshold for obviousness in 2007
>    when it ruled in favor of KRS, a company that refused to pay
>    royalties on a rival's patents on the grounds that the patent
>    combined preexisting elements in a predictable manner, said
>    Grimmelmann.
>    ...
>    While patent reform in Congress has proven a long and difficult
>    process, Lemley said, he believes that some sort of reform bill will=

>    pass in this Congressional session.
>
>
>  =20


--=20
Jerry Feldman <gaf-mNDKBlG2WHs at public.gmane.org>
Boston Linux and Unix
PGP key id: 537C5846
PGP Key fingerprint: 3D1B 8377 A3C0 A5F2 ECBB  CA3B 4607 4319 537C 5846