[Sussex] Patents.. again

[Steve Dobson]

Geoff

On Thu, Mar 03, 2005 at 08:10:23PM +0000, Geoffrey J Teale wrote:
> As you are no doubt aware there's been a lot on the web this week
> about the possibility that the EU commission may behave in its most
> anti-democratic manner and push on with patents despite the wishes of
> JURI.

Like you I am generally a supporter of the EU, but if the commission does
push on then I will have to consider the EU too un-democratic...

> I won't say much more on that subject, if it goes through then Steve
> W. and I will agree on a political point more strongly than ever in
> living memory.

Doesn't a war of strange bedfellows make!

> The good news is Computer Associates, another of the worlds largest
> patent holders is to follow IBM and Sun in giving F/OSS software
> freedom to use it's patents without redress.  

Sun has *NOT* given the whole F/OSS community the freedom to use 
its (1500) patents - only the CDDL users.  CDDL is the license under
which they are releasing OepenSolaris, and I think they *HAD* to 
release those patents or no one outside Sun could have hacked the
Solaris code without worrying.

I see Sun as a company that has lost it.  They have become a user
of F/OSS not a fully paid up member.
 
> It increasingly looks like the only really dangerous patent holders
> (as far as Linux is concerned) will be our old friends at Microsoft
> and SCO.

I still can't see Microsoft as being a dangerous threat.  A bother yes,
but not a really threat.  

  1). Microsoft have many patents, like the "is Not" patent.  Didn't
      they get that one?  Patents of this quality are no threat.
      Prior art will destroy those if they use them against F/OSS.
      While M$ may have a large (but not the largest) S/W patent
      portfolio I doubt the quality of most of them - but there will
      be some that are quality.

  2). Of the few that are quality how many of them are valid?  IBM,
      Sun, HP, VxWorks ...  also have S/W patents.  How many of
      these pre-date Microsoft's?  Wouldn't a holder of a earlier patent
      be forced into the battle to defend their own IP claim?
      As I understand the US S/W patent system, if you don't defend 
      your IP claim then you loss it.

  3). Of the few SWpats left that are both quality and have "first
      claim" to the idea they are still untested in a court.  To
      my knowledge all SWpat cases to date have been between companies
      with deep pockets - SWpat cases are long and expensive to 
      run, so the entity you're suing needs to be able to afford
      the settlement when you win (unless you're using the case as
      part of a strategy to take over the company).

      If you are being sued then their is a tendency to settle out 
      of court because of the costs - see Kodak v. Sun over a Java
      SWpat.

  4). Who is Microsoft going to sue?

      a). Linus?  Alan?  Andrew?

          Well they can't sue Alan he doesn't even visit the US any
          more.

          Suing a Kernel developer will bring down that wrath
          of the F/OSS community.  While the community will rally
          to provide the defendant with the best legal team (don't
          over look how Groklaw will help for free) money can buy,
          the individual will never have the funds to pay costs if
          Microsoft win.  Suing a developer will cost Microsoft
          money, but the FUD maybe worth that cost to them - my
          only real fear.

      b). So will M$ sue one of the companies supporting Linux, like
          IBM?  Well they can't sue IBM they have an agreement with
          them to use each others patents.  There are similar
          agreement between all the large S/W vendors.  Any company
	  that M$ doesn't have an agreement with is unlikely to have
	  the funds to pay up if M$ wins (see 4a).

      c). That only leaves Linux users, and most of them will also be
          users of Microsoft's OS too.  Well SCO have shown use how
          well suing customers goes down.  From Erik W. Hughes,
          Director of Product Management for the SCO Group, Inc.,
          deposition:
    
             "4. From August 5, 2003, until May 31, 2004 (the date
             of the last sale), SCO sold 45 units of SCO Linux Server
             4.0, for gross revenue of $5,294. During this same
             period, 70 units were returned, which resulted in a loss
             of $6,473, so net sales for this period were -25 units
             and net revenue was -$1,179."

          I guess that other customers notice when you start to sue
          them!

  5).  SWpat cases take years, and Mirosoft needs to stop the spread of
       Linux use now!  In the time taken to fight the case in the
       courts (and if you think SCO v IBM is taking a long time SWpat
       cases take longer) Windows will loss market share to Linux.
       Doesn't this remind you of Novell v. Microsoft over WordPerfect
       infringement, or Netscape v. Microsoft over browsers, ...
       While Novell and Netscape were right M$ still won the battle in
       terms of market share and, therefore, income from product sales.

While there maybe short terms gains in starting a SWpat war, long term
I can't see it working.  And M$, I'm sure, is taking the long term view.
As I see it, fear of SWpats is more profitable for M$ than actually suing
someone over a SWpat infringement.

Steve