Get rid of software patents says leading open source law professor

Get rid of software patents says leading open source law professor

Summary: The current patent system is dominated by the needs of pharma, not tech.

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TOPICS: Open Source
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Eben Moglen, founding director of the Software Freedom Law Center, Wednesday called for reform of the US patent system as applied to software, because current laws are designed to protect the interests of pharmaceutical companies rather than technology companies.

Mr Moglen was speaking on a panel at the LinuxWorld trade show in San Francisco. He is one of the top lawyers in the open source movement.

"Software patents don't make much sense in the tech industry because markets move too fast. Yet the software patents put developers on guard that they could be vulnerable to future claims," said Mr Moglen.

He said that tech companies were having to register software patents as a defensive move, and that none could "unilaterally disarm" and stop filing for patents. And with potentially many rights holders in software, negotiating licenses becomes very difficult and harms innovation.

He said that many companies were having to bear the burden of IP laws that have been influenced by pharma, and that it was time for the tech industry to be freed of constraints created to serve the interests of just "the few."

The Software Freedom Law Center provides legal services to corporations and developers using open source software to ensure that their projects will not encounter a possible legal challenge.

Christine Martino, vice president of Hewlett-Packard's open source and Linux business, said HP would support a move for reform of the patent system in the US and internationally. Ms Martino, speaking at the same LinuxWorld panel, said, "As a global company and with global customers, we realize that this is an issue that needs to be addressed everywhere."

Another fellow panelist, Stuart Cohen, CEO of Open Source Development Labs, a sponsor of Linus Torvalds Linux kernel work, said that US patent laws affect other countries even if their own IP laws are weak. "Developers in other countries know that we live in a flat world, and that means that they could be vulnerable to legal challenges from IP owners in other countries," said Mr Cohen.

As Linux and other open source software grows in popularity, the community of tens of thousands of developers has built a strong legal infrastructure to protect their work from third-party challenge. The key to the success of Linux and open source has been the General Purpose License (GPL), an extremely well crafted legal document that that has so far, managed to repel or discourage any challenge.

However, the latest version of GPL has become controversial and has split the open source community, with Linus Torvalds its leading critic. And large IT vendors such as HP have said that the new GPL must have strong protection for proprietary technologies.

Mr Moglen said that the debates over the new GPL are good and are unlikely to stall an agreement. "I believe in the wisdom of crowds, we have a community of ten thousand that have a say in this."

He said he expected an agreement on the wording of the license by spring of 2007. But he also said that there would likely be two versions of the GPL, and that that was okay.

Topic: Open Source

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  • And on the flip side, real business says...

    Lets see, "open source lawyer" says he knows more about business than businessmen and how to cure the world's problems. Just give everything to anyone that wants it for nothing. You don't need to be paid.

    Pfftttt... Clueless moron.
    No_Ax_to_Grind
    • Real businesses like HP?

      Software patents aren't about getting paid for what you've done -- they're about getting rents on what [i]others[/i] have done.

      If you'd read the fine article, though, the stinker that's making serious technology companies hate them is that it's impossible to produce [b]any[/b] software without infringing hundreds of patents, and each patentholder wants 5% of your gross.

      Do the math.
      Yagotta B. Kidding
    • MS certainy loves 'em

      After all they simply just acceeded to Eolas and paid up rather than say fighting them tooth and nail in courts, shelling out $500,000,000+, and having to patch IE.

      Yup, nothing but good from software patents.
      Robert Crocker
      • Really?

        I seem to recall a lengthy court battle, complete with appeals, before Microsoft 'acceeded' to Eolas. And haven't people all along said that Microsoft should quit fighting in the courts and just accept court rulings?

        Carl Rapson
        rapson
  • Don't quit your university job, Moglen.

    Otherwise you might have to change your thesis on land, labor and capital. Software patents need to be revised, not abolished. Corporate law needs revision a lot more than patent law. Private ownership is one of the cornerstones of a free enterprise system. Guess he didn't read Section 8 Clause 8 of the Constitution.

    "Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

    These guys will never get it.
    osreinstall
    • Where does it say

      That software has to have both patent and copyright protection?

      [i]"Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"[/i]

      If you did away with software patents today software would still fall under copyright.

      Also catch this part [b]Authors and Inventors[/b] how many authors and inventors actually hold these rights today versus corperations?
      Edward Meyers
      • Patents also protect the little guy also.

        It doesn't. But extra securing doesn't violate it either. Therefore it is constitutional. The word is securing, not how it is done.

        That is true but I could rephrase it in my own words circumventing the protection or keep it secret. The patent keeps others from using my idea for the next 17 years.

        I am sure the corporations hold the majority of patents. That isn't a patent fault. That is a corporation fault. Corporations need reform a lot more than patents. Ever notice how corporations mostly get it their way no matter what is being fought over.
        osreinstall
        • Patents don't help the little guy

          The little guy can't afford the average $80,000 in attorney fees to get a patent aproved.


          I like how you twist this.

          [i]It doesn't. But extra securing doesn't violate it either. Therefore it is constitutional.[/i]

          You imply that doing away with software patents would thus be unconstitutional. This is not true as software is already covered by copyright.

          [i]That is true but I could rephrase it in my own words circumventing the protection or keep it secret. The patent keeps others from using my idea for the next 17 years.[/i]

          My god! Don't you recall a few month's ago when I posted it over and over and over then linked the actual law- The term is 20 Years. Also patents can't cover a general idea in theory. In practice they do.

          Also in order to be granted a patent you are suppose to disclose the invention. In software they do not do this as it is more valuable to keep it trade secret. Again that is in theory they are suppose to disclose the invention. They don't do it BTW.

          [i]I am sure the corporations hold the majority of patents. That isn't a patent fault. That is a corporation fault.[/i]

          It is becuase of the costs involved. The patent process is not a simple one like the copyright process. Once you put your idea into tangible form that expresion of your idea is copyrighted. To register your copyright you send in your work with a couple of page form along with your $45 (They just raised the fee).

          The Patent process is so complicated that it requires hiring a patent attorney to get through the process.
          Edward Meyers
          • You are wrong as usual.

            The patent system protected the Guatemalan programmer against MS. He was a little guy. Of course if you are flat broke, you have bigger problems than a patent dispute.

            It isn't twisted. Just detailed logic you can't seem to grasp.

            It would. Inventors have the right to protect their work. Preventing them from going down that road when it is available would be unconstitutional. Software is more than speech. It is also a process that can be patented.

            Actually it is 20 years from application date plus 5 years to set it up.
            They do disclose the invention. But the details of the source code are secret like a engineering print. The USPTO only gets the concept drawing.

            Copyright is basically creative writing. I could rephrase it and bypass any protection. That is no protection. With a patent, I can prevent you from using my idea. Who needs a couple dozen file managers anyway?

            Copyright process is complicated too. You have to hire an attorney to avoid their minefield also. Yep you have to learn something else in life. Or hire someone to research it for you. As the industry matures the legal requirements will expand. The wild west days are gone.
            osreinstall