[sclug] Cheap'n'nasty Tesco Linux machines

Simon Champion simon at spudley.com
Wed Apr 9 10:05:46 UTC 2008


You wrote:
> My point was that 'open source' purely means something to which the 
> internal construction is available freely, not the name of a bunch of 
> guys who started a foundation. I now find myself in the very rare and 
> un-comfortable place of saying the US patent office seems to have done 
> something correctly by refusing the patent.

I really hate being picky (really really), but it's important to make the distinction between patents and trademarks. They are entirely different things. You cannot patent a phrase.

A patent is a legal monopoly on an invention, so that the inventor can benefit from their invention for a certain period of time before anyone else can produce it.
A trademark is a name by which something is known, which is legally protected to prevent others using the same name in the same industry to pass off their product as yours.

A trademark does not have the draconian ownership implications of a patent, so it's important not to equate the two. Linus Torvalds has a trademark on Linux, but it doesn't stop anyone from distributing Linux and calling it by name, or even including it in their company and product names. What it does stop them from doing is creating a BSD distro or some other OS and calling it Linux.

The point of attempting to get the trademark on "Open Source" was to prevent others from using the phrase for products that aren't actually open source (eg those that provide source code to customers, but not a license to modify or redistribute it). Fortunately, this hasn't happened to any great extent, but without a trademark in place it could in theory happen. On the other hand, the term is generic and the meaning is well established, so the trademark authority were probably correct in not granting it. In the absence of a trademark, the reason the term hasn't been abused is probably down to the power of the crowd -- anyone abusing the term would be descended upon by hordes of ravenous geeks.

Since the trademark application was turned down, the OSI has instead relied on giving licenses an "OSI Approved" stamp, which means that the license meets the OSI's definition of Open Source. Of course, whether you or I agree with the OSI's definition is another matter, but that's what they do.

Hope that clears things up.  :-)

    Simon C.

ps - while I'm on the topic, copyrights are a whole other thing, which you also shouldn't confuse with trademarks or patents.  ;-)

1 bedroom flat for sale in Maidenhead.

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