[Sussex] Patents.. again

Fri Mar 4 07:45:49 UTC 2005

On Fri, 2005-03-04 at 02:21 +0000, Steve Dobson wrote:
> 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...
> 

One has to consider the relative democratic merits of the components of
the EU rather than as a whole. The European Parliament is democratic,
but does not have nearly enough authority within the EU. The European
Commission (where the real power lies) and the Council of Ministers
(also where real power lies) are nothing like democratic enough. Until
the authority and jurisdiction of the EU lies with a directly elected
democratic body (the European Parliament being the obvious candidate) I
will not support the EU or closer integration with it. It is so contrary
to long standing rights and freedoms that the English have enjoyed for
centuries.

> > 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!

Steady on, Geoff's a nice chap 'n all, but bedfellows....er -NOT!

> 
> > 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!

I really cannot believe they didn't see this coming. They must have been
desperate.

> 
>   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.

Me too. Microsoft Linux 2007 anyone?

Steve W.

> As I see it, fear of SWpats is more profitable for M$ than actually suing
> someone over a SWpat infringement.
> 
> Steve
> 
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