Bruce Perens lashes out at absurdity and injustice in software patents process

Bruce Perens lashes out at absurdity and injustice in software patents process

Summary: Among my take-aways is that Perens is quite correct that the wheels of justice grind slowly (if at all) in many instances where open source stands to gain and large commercial vendors do not.

TOPICS: Open Source
It started out as a "state of the union" address for open source, but what I really got today was a legalistic lesson from Bruce Perens, open source maven, consultant, and author of the Prentice Hall Open Source Series that takes his name. It's telling that legal minutiae dominated a discussion of open source at LinuxWorld Boston.

Perens, who has 21 books published in his series under an open source-like license (a PHP book was freely downloaded 830,000 times over the past year), says that the U.S. patent system is patently broken, especially for software. Check out the notes from his presentation.

Among my take-aways is that Perens is quite correct that the wheels of justice grind slowly (if at all) in many instances where open source stands to gain and large commercial vendors do not. And that open source coders seem to have few friends when lawsuits, frivolous or otherwise, come their way. I'm shocked, shocked that big money and the power of public companies with their lobbyists have a role in how bureaucracies prioritize their regulatory and legislative reform zeal.

But that doesn't make it right. It does mean that the messy circumstances of how the legal machine bumps into the software machine can be highly unproductive to all but a few.

Such a hit to productivity might a Microsoft-led patent infringement assault to stem or halt further open source development/deployment, for example. Such a threat, real or perceived, would have a deleterious effect on many enterprises, ISVs, SaaS providers, communities, and vendors who rely on open source efforts to augment their TCO, development efforts, market reach, and innovation. Imagine the SCO suit (Perens called SCO a proxy of Microsoft) and RIM/NTP affair on a larger order of magnitude. The RIM settlement shows, Perens says, that software patent intrigue can work on its own to disrupt without court findings: "RIM paid to end the FUD," not to give up on seeking legal vindication, said Perens.

Perens says the U.S. needs legislation to fix the software patents litigation merry-go-round. Meanwhile, he calls for the enforcement of perjury protection in the applications for patents. The last time a patent perjury case was tried: 1974. He said recent claims for patents, including those from Microsoft, amount to knowingly making claims with no rationale ... in other words, to make knowingly false claims, and therefore commit criminal perjury.

And what of enterprises who buy and use open source products and services? Perhaps they should band together and fund legal defenses against frivolous patent cases against open source projects? They should. What's more, some fairly powerful vendors are working quietly on behalf of enterprises to offer open source legal meltdown insurance, of sorts. IBM and four others (Red Hat, Novell, Sony, and Phillips) last fall created the Open Invention Network to offer a broad backstop of support against lawsuits directed at Linux.

But what of other open source projects and components? "Open will win in the long term," IBM's Scott Handy, vice president of worldwide Linux and open source, told me Wednesday. "We bet our business on open, and we don't want anyone to own 'open'."

indeed, IBM has 10 initiatives under way, says Handy, to protect against open source legal assaults from those who would game the patents and intellectual property deployment processes.

More needs to be done, says Perens. "There is no sense of peril for those that try and game the system for software patents," he says. The patent examiners' jobs are impossible. Lawyers trolling for suits take advantage of that. "We need a real measure of triviality in the presentation of patent claims. Being obvious should count in triviality," said Perens.

That seems obvious to me.

Topic: Open Source

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  • ZD Journalism

    Phi[b]ll[/b]ips is an oil company.

    Perhaps you meant Phi[b]l[/b]ips, the Dutch electronics company?
    Yagotta B. Kidding
  • Well DUH, Bruce P. wants to steal everyone's ideas.

    Are you just now catching on?
    • Not quite

      Bruce Perens is as capable and smart and dedicated as they come. He has his OWN ideas and doesn't need to "steal" anyone else's.
      Roger Ramjet
    • Stealing ideas?

      A statement based on the false assumption that ideas can naturally be owned, and it's possible to "steal them" (at least without major brain surgery).

      I've had an idea! I'll drink this cup of coffee now. If you also decide to drink some coffee have you stolen my idea?

      Another bad argument is that "inventors must be rewarded for their innovation". Perhaps, but the level of reward must justify what is given in return. That argument is used to support the idea that we must pay more and more, and be forever in debt to someone who had an idea that may be as trivial as drinking coffee. We must worship the inventor, no matter how small.

      A 20 year monopoly may be a valid reward for an inventor who makes publically available documents describing a wonderful new invention. That's what patents originaly were. Rather than keep your invention secret, you document how to recreate it in return for the temporary monopoly. We gain because others get to use that document and can invent something else. The invention doesn't wither away in a lab forever.

      A 20 year monopoly is not, in my oppinion, just reward for stating a claim to an abstract concept like "I own the idea of selling something over the Internet". That bit of knowledge doesn't further the arts, and with a patent system that allows the patent holder to charge whatever they want for "infringement" it just becomes rediculous.
    • Learn to read

      Bruce Perens does not want to protect HIS ideas. He simply wants to stop people ring-fencing ideas. Patents were originally for technology and the application of engineering and science to the physical world. In the USA patents are now being mis-applied - they are the wrong form of IP protection for software.

      Ideas have never been protected. Copyright protects the expression of an idea and a patent covers a physical implementation of an idea in hardware.

      The ideas themselves have never been protected and shouldn't be.

      Would it be right for me to patent the idea of putting a stamp on an envelope? "[i]A method for assisting the physical transport of a vegetable based message message by the affixing of a service payment receipt[/i]". After all I never invented the postal service, the stamp, the paper or the envelope so why should I get a patent of sticking a stamp on the envelope? What benefit does my patent give to society? Patents are meant to be a 20 year monoply in exchange for society benefiting from the idea.

      Most US patents at present are useless and contribute nothing to society. Why do they deserve a monoply?
  • Ever hear of whipping a dead horse

    Govt absurdity hmm where have I heard that before. Oh yes! "Every Fricken Day of my Life". From software Pantents to the war in Iraq. I am sick to death of it. Of Course it's absurd!! Its a Freakin Circus. Wah! Wah! Wah! Deal with it.
    Bruce Perens need's to move on and accept that! and speak about thing's he can change.
  • from the horse's mouth

    I refer everyone who likes to post their barbs about patents (in general) and software patents (in particular) to an OP-ED in the Thursday, March 30, 2006 Wall Street Journal. Here, Nathan Myhrvold provides an intelligent overview of the situation laced with pithy and (mostly) correct observations about the high-tech industry and its current/ongoing efforts to squash the rights if inventors (particularly independent, underfinanced inventors who are not a part of any established corporate culture).

    He claims that big companies would rather fight to weaken patent laws for the little guy (under the guise of "patent reform") rather than pay out a small fraction of their huge profits to legitimate patent holders.

    Myhrvold concludes: "Weakening the patent no more than a government bailout of the infringement problem big tech companies deliberately made for themselves." As former first chief technology officer at Microsoft, he ought to know.
    • Hardly an enlightened viewpoint

      Myhrvold is hardly an impartial observer - his current business (patent trolling) depends on a patent regime where patents are handed out like sweeties.

      Patents should be granted on technologies and inventions, but NOT on [b]techniques[/b]. Software is, almost by dictionary definition, a technique.

      [b]technique[/b] - The systematic procedure by which a complex or scientific task is accomplished.

      So software can never be an invention and should therefore never be within the scope of patents.
      • just seeking informed opinion, not enlightenment

        Nobody is an impartial observer where cash and profits are concerned, but they can still add value to a discussion. The posts on patents found here at Ziff are all from people with some score to settle or some deal to pitch that (probably) depends on a court or a government agency "interpreting" the existing body of patent law in their favor. You hire more lawyers, you can push the odds in your favor.

        The fact is INDUSTRY likes it that way because it puts those with the big bucks (and not necessarily the big brains) in control of things most of the time. New laws would arrive in a flash if it were otherwise.

        The idea that we can all go to the dictionary and find impartial, universally-accepted definitions that will neatly delineate how everything ought to be is absurd.

        I favor giving patents to truly unique devices that have been reduced to practice (this DOES NOT mean only those devices put into mass production). Otherwise, manufacturers today would all owe the science-fiction writers of 50+ years ago huge fees for their "ideas."

        I also believe true intellectual creativity can reside in software, and thus should qualify for some kind of protection. If not a patent, then what? A copyright? Or perhaps some rational legal construct - giving credit and a reasonable reward to the software developer - that has yet to be formulated or established.

        Dictionaries are good for spelling, not for intellectual heavy lifting.
  • RE: Bruce Perens lashes out at absurdity and injustice in software patents process

    The link to Bruce's presentation is invalid.