The Monster Arrives: Software Patent Lawsuits Against Open Source Developers

Fri Jun 30 00:00:32 -0700 2006
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We've warned you for a decade. Now the monster has finally arrived: attacks against Open Source developers by patent holders, big and small. One is a lawsuit against Red Hat for the use of the principle of Object Relational Mapping used in Hibernate, a popular component of enterprise Java applications everywhere. The other attack is on an individual Open Source developer for his model railroad software.

These two attacks are the tip of the iceberg, thousands more are possible as software patent holders turn to enforcement as an income producer and away from the patent cross-licensing détente exercised by large companies until the mid-1990s. Open Source will not be the only victim: small and medium-sized companies make up 80% of our economy and any of those companies that develops software, either proprietary or Open Source, will be vulnerable. The American IP Law Association estimates that defense against a single software patent lawsuit will cost between 2 and 5 million dollars. Under US law, even a company that only uses software can be sued.The suit against Red Hat's concerns the use of software "objects" to encapsulate a database record and make it easier to access, a technology called Object Relational Mapping or The ActiveRecord Pattern. That technology is used in the Hibernate software developed by jBoss, which Red Hat recently purchased. FireStar Software claims that it invented the technology, and that it is covered by its U.S. patent number 6,101,502. However, over the past two decades there has been much prior art for object-oriented databases, including TopLink, an object relational system developed in the early 90's and now owned by Oracle, so it may be that the filers of FireStar's patent made no invention.

There's also the question of obviousness, whether the principles claimed in the patent would be obvious to a normally-skilled practitioner of the software art and thus not be an invention at all. The function of an object is to encapsulate data, and object-oriented programming has been known since the Simula language introduced it in 1967. The U.S. Supreme Court is currently reviewing another patent lawsuit in which the defense claims that there should be a much higher standard below which purported inventions would be considered obvious and thus not patentable. A higher standard of obviousness could help, but the real solution is to go back to the original intent of the Patent Office and stop granting patents on software.

Should FireStar prevail, or should Red Hat be forced to settle, Open Source use of the object-relational paradigm, including that in Hibernate, PHP, and Ruby on Rails, might become impossible. Recently RIM Systems, maker of the ubiquitous Blackberry, settled their patent case with NTP for half a billion dollars, after most of NTP's patent claims had been overturned by the patent office! In that case, the patent office ruled the patents invalid after the judge rendered his verdict in the lawsuit, and the judge refused to reconsider. Justice seems to be hard to find where software patents are concerned.

Red Hat will probably stick with the FireStar case rather than settle, but how many of them can it sustain? It's not possible to write a significant program today without using a principle covered by a current U.S. software patent. A study of patents possibly infringed within the Linux kernel found 283 of them in 2004. And that's just one program out of the thousands that make up a Linux distribution.

The other current patent attack against Open Source faces Bob Jacobsen, the developer of the JMRI model-railroad control software. Jacobsen gives his work away, with full source code. He is faced with an invoice for over $200,000 from Michael A. Katzer and his company KAM, $19 for every copy of JMRI that Jacobsen gave away. KAM filed a patent making a broad claim covering the transmission of model-railroad control commands between multiple devices in 2002. Again, there's prior art: this technology probably goes back to the MIT Model Railroad Club in the 1960's. But Jacobsen could easily go bankrupt in defending himself or paying KAM's claim. Because the cost of a patent defense is many times the net worth of the typical Open Source developer, it's difficult to see how there can be justice for the little guy.

These patent attacks come at an interesting time, as SCO's lawsuit against IBM starts to collapse. But while SCO's case was never well-constructed, a software patent case is much more substantial. It's possible to invalidate some patent claims in court or at the patent office, but some of the potentially thousands that can be brought against significant Open Source programs will be found to be legitimate.

There is also the specter of patent shake-down operations, like Intellectual Ventures. Founded by ex-Microsoft executive Nathan Myhrvold and touted as a means to "encourage innovation", it appears to be a litigation factory in the making. Intellectual Ventures has been purchasing patents to construct a portfolio that it will then assert against someone, probably small and medium-sized businesses to start with. Most businesses, when faced with the prospect of an expensive patent infringement lawsuit, choose to pay a license fee, or shall we call it an extortion fee, rather than go to court and spend so much that even when they win, they lose. Income from license fees will fuel more attacks on more businesses. The effect of Myhrvold's business on Open Source could be crippling. But Microsoft, Intel, Apple, Google, and eBay have nothing to fear. They invested in the company, and will be excluded from attacks.

All of this could be excused if it only encouraged innovation, which is supposed to be the purpose of the patent system. Patents were created as a means to get inventors to disclose their inventions, rather than keep them secret. The disclosure of an invention was supposed to allow others to more easily build on that invention, thus creating more inventions. But the patent system has evolved into something useless for the purpose of disclosure, and engineers are now instructed to avoid looking at other companies' patents because if the victim of a patent lawsuit can be shown to have known of a patent, the award to the patent holder is tripled. There have been no reliable studies that show software patenting to have encouraged innovation, and there is much evidence that they actually impede it. Computer programs are already protected by copyright, and that protection is sufficient to protect proprietary software businesses. Software is unique in that it is protected by both copyright and patents, other industries have one or the other and that is sufficient for them.

There are many other problems with software patenting, too many for me to cover in one piece. But you can see my essays The Problem of Software Patent in Standards, Software Patents vs. Free Software, and The Open Source Patent Conundrum, and my State of Open Source message.

Even the United States Patent Office thought software patents were a bad idea. It was forced to grant them by the Supreme Court, in a lawsuit brought by IBM. More recently, there has been news about Europe resisting a big-company push to make software patents enforcible, a fight that will continue when the question comes up again next month in Brussels. Large companies, including some otherwise perceived as friends of Open Source like IBM, HP, Nokia, and Philips, continue to push for increases in software patenting as a means of fighting disruptive technologies from smaller companies and Open Source incursions into their proprietary software markets. This is a big-company vs. little-guy fight. Despite the fact that the "little guy" represents most of the economy and the main sources of innovation, the big companies have the political connections and thousands of full-time lobbyists, and they are winning.

Over the past decade, Open Source has shown itself to be a better paradigm for supporting software innovation than a software patenting system ever could be. Open Source developers share both principles and the actual implementation, and allow anyone to build upon their work. The Linux kernel development, just a single example of Open Source success at innovation, has been the fastest and most broad-ranging of any operating system project ever attempted, and has achieved many capabilities that are unmatched by proprietary operating systems.

But we should not be confident that we will continue to have the right to use and develop Open Source software. A coordinated patent attack by a few companies, or even one large company, could completely destroy Open Source in the United States and cripple it in other nations. Funds and patent portfolios that have been established to help defend Open Source would not be sufficient to defend it. Only legislative changes to the patent system can fully protect Open Source and maintain it as a viable source of innovation for our future.

Bruce Perens may be best known as the creator of the Open Source Definition, the manifesto of Open Source and the canonical rule set for Open Source licensing. He is currently a vice president of Sourcelabs. He is series editor of Bruce Perens' Open Source Series with Prentice Hall PTR Publishers, which has published 24 books with all of their text under an Open Source license. He is a visiting lecturer at Agder University College in Norway, and has been a scientist with George Washington University's Cyber Security Policy Research Institute. He was formerly a director of Open Source Risk Management, a company that was involved in protecting against intellectual property risk of Open Source software, and was HP's Senior Global Strategist for Linux and Open Source. He was CEO of Linux Capital Group. He is a husband, and the father of a wonderful six-year-old whom he hopes will live in freedom when he grows up. And that's why he's working so hard on issues like this today.

The author considers that Free Software and Open Source are two different approaches to the same thing. Either phrase may be interchanged with the other for the purposes of this essay.

Florian Mueller of NoSoftwarePatents comments

Thu Jun 29 18:16:33 -0700 2006
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Florian Mueller, who operates the NoSoftwarePatents campaign, has some rather strong words about Red Hat in his blog. He thinks that Red Hat has not always been on the right side of the software patenting issue and brought this on themselves. I'm not going to make a call on this, judge for yourself.
Florian Mueller of NoSoftwarePatents comments
Fri Jun 30 14:34:02 -0700 2006
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  Postgres95 would seem to have problems with this patent. This is from the original manual that I have from 1995, but someone out there is sure to have some documentation before this.

4.1. Concepts

The fundamental notion in POSTGRES is that of a class, which is a named collection of object instances. Each instance has the same collection of named attributes, and each attribute is of a specific type. Furthermore, each instance has a permanent object identifier (OID) that is unique throughout the installation. Because SQL syntax refers to tables, we will use the terms table< and class interchangeably. Likewise, a row is an instance and columns are attributes. As previously discussed, classes are grouped into databases, and a collection of databases managed by a single postmaster process constitutes an installation or site.

Florian Mueller of NoSoftwarePatents comments
Wed Jul 05 09:16:22 -0700 2006
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Florian Müller does not operate NosoftwarePatents anymore.

Court? Extortion? Something else?

Fri Jun 30 14:47:19 -0700 2006
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It's really something to think about when people are much more willing to pay extortion than to use our courts. Not just in the case of patents. A nice start will be to outlaw software patents, but until open source users, companies, and programers, are sued by the 100s, I doubt any action will be taken. To end software patents we would first have to motivate our congress critters, and we are not the ones bribing .... errr ... donating money to them. There needs to be a set of people working on the problem and coming up with out-ofo-box- solutions as to how we can motivate congress. As Rasterman is fond of saying "It's time to rethink everything." Open source is on a new level. It's been noticed and now it needs to survive that attension. You cannot become a player or involved with big business without evolving to meet those new challenges. It's evolve of disappear, it seems. Fad or forever?
The Monster Arrives: Software Patent Lawsuits Against Open Source Developers
Fri Jun 30 16:44:30 -0700 2006
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" after most of NTP's patent claims had been overturned by the patent office!"

Most does not equal all, and BlackBerry made a lot of money using someone elses patent.

"
We've warned you for a decade. Now the monster has finally arrived: attacks against Open Source developers by patent holders, big and small."

scare mongering. Please, that is no better then slashdot.
Instead of examples and scare tactics how about a reasonable discussion to back your point?

waking up monsters

Fri Jun 30 16:56:57 -0700 2006
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Actually, thus far I'm amazed at how few patent lawsuits there have been against open source, it is because of the deep pockets of some OSS friendly vendors?   Alot of prior art when talking about algorithms in general?  Shear expense and length of lawsuits?

Thus far the "biggies" have been copyright and ownership/title lawsuits.
waking up monsters
Fri Jun 30 17:08:08 -0700 2006
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I think the software patent holders have refrained from creating bad news for their own agenda until they get software patent laws passed in Europe.
waking up monsters
Fri Jun 30 19:31:14 -0700 2006
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hopefully this may help start the search for relevant prior art

 

http://www.patentrakker.com/priorart/abcd%206101502.XML

 

 

waking up monsters
Fri Jun 30 22:20:51 -0700 2006
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Suing costs a lot of money as well, so it would be hard to get enough money from the typical developer to come out ahead.

http://helpredhat.dyndns.org

Fri Jun 30 21:00:18 -0700 2006
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Hi, I created a small website with MediaWiki, which is dedicated to collect Prior Art against this patent. This will help Red Hat and might prevent the same patent from beeing issued in Europe, Canada, Japan and other countries. Let's show the world that this wasn't a new invention in 1998 ! http://helpredhat.dyndns.org
The Monster Arrives: Software Patent Lawsuits Against Open Source Developers
Fri Jun 30 21:59:18 -0700 2006
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The US will need a change of political tide to get beyond these issues.  The party in power is dominated by business and business only interests who primarily fear technology, and otherwise consider it of no value. They feel the same way about technical professionals - which explains why they have encouraged american businesses to look outside the US to the third world for technical talent.  It is no accident that software patents and the general mis-use of patents have become an issue during the current political climate.  Perhaps the open source community should be looking for a safe haven, at least until the current tide turns.
The Monster Arrives: Software Patent Lawsuits Against Open Source Developers
Sat Jul 01 05:09:19 -0700 2006
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I can't help but draw similar comparisons to the ACLU's rotten tactics of extortion, usually by threat of expensive attorney fees. There's currently a bill (H.R. 2679) that would drop lawyer fee damages in such cases, which by now is long overdue. So, I wonder how bad things will have to get before we get a bill to help protect "David from Goliath" in software patent cases where similar acts of extortion are used. Open Source may be under attack, but I don't believed it's doomed, at least not in the United States.

A question to Mr. Perens...

Sat Jul 01 07:08:22 -0700 2006
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Let us assume RedHat contrives to lose this case... what next? It appears from the tone of your article, doomsday is near, for ALL open source efforts. To quote one of your replies... "I think the software patent holders have refrained from creating bad news for their own agenda until they get software patent laws passed in Europe...."

If life becomes unlivable for Open Source developers in the US and the EU, will this mean open source development could shift  elsewhere? Would Asia then emerge as the new centre-of-gravity competing for open-source talent and projects? 

The Monster Arrives: Software Patent Lawsuits Against Open Source Developers
Sun Jul 02 00:27:10 -0700 2006
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I've actually considered getting out of the software writing business because of this.  It's probably impossible to write anything meaningful without falling afoul of some patent somewhere anymore.  Since much of what I write is not open source, and is for another company who could defend themself anyway, the problem is a bit lessened, but not gone.

There is another interesting issue in all this.  I'll try to describe this without naming names for reasons that should be obvious.
We write a lot of code for a particular microprocessor family (not x86), and the factory developer tools for this family are kind of lame, except there is a nifty debug facility "built in" to the chip that talks to the in-circuit programmer, actually hidden in some internal hardware and some "secret" firmware that their tools will not dump.  We wanted to use our better homegrown software dev tools for this family, but not lose the debugger -- we would have released the result as an open source product if possible.  Since we have an NDA with that particular company already, we thought this would be a simple matter of calling them up and getting them to tell us how their trick debug hardware/firmware worked so, for example, we could do the development work on Linux and using our better tools.  This could have been nothing but good for the company in question, as it would have added to their development suite at no cost to them (they are not in the software business and give the lame stuff away free).  Their odd refusal told us a story.  Rather than saying "we won't", they basically said "we can't".

One who won't be stopped can't be stopped, so we reverse engineered the thing with some difficulty -- their tools for example hid the firmware so that it couldn't be viewed (with their tools).  This was easily fixed by developing our own in-circuit programming tool, which we needed anyway for this project, and using it to read the "secret" firmware, which in turn lead us to the "secret" hardware registers it used and lots of other interesting things.  Evidently, "someone" has patented the use of an address comparator in hardware to set breakpoints, and perhaps the use of firmware to report them...and the result is that this company cannot openly use the technique, but must keep their use of it a secret.  This isn't a small company, either, so one assumes that the patent holder is refusing to license for (non?)competitive reasons.  The result is that most are stuck with relatively lame tools when using this family, and some secrets that really need not be secret, if not for this little patent problem.  Now, prior art for address comparison goes back to the dawn of digital computers, and even very old obsolete logic scopes, so what gives here?  We are guessing that "medium big" microprocessor company simply doesn't want to take on "real big" microprocessor company in court, even if they would win.  The developer community is poorer as a result.

Another poster basically mentions "the best law money can buy".  It's a sad truth.  I think we should hope that the large companies themselves will be hit by the vultures enough to motivate them to buy us a better set of laws.
The Monster Arrives: Software Patent Lawsuits Against Open Source Developers
Tue Jul 04 06:14:57 -0700 2006
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Really, the whole of patent suits against defendants who can't afford the cost of winning in court is a special case of a more general problem

Yes, software patents are wrong, especially when things the average high-schooler would think up in 5 minutes are granted patents these days, but even that could be overcome without the larger problem

The REAL problem is that there is no such thing as civil justice in the U.S. and many other countries. There is a Civil Court system, but when the average person cannot afford to prevail against a wealthier opponant, there can be no justice.

Things are sometimes 'better' for a small plaintiff than for a small defendant, but only because a plaintiff has hopes that a lawyer will 'invest' in his case in exchange for a percentage. However,  that in itself creates a largish problem of it's own. Please see www.stellaawards.com/.

It's not just the expense of an attorney. Even if there was an army of lawyers ready to work on any defendant's case pro-bono (that is, grant them charity) the process of discovery alone can still bury the average person who simply can't afford to take a year off from work

Meanwhile, law has become complex enough that the average person cannot hope to represent themselves in court, particularly when the cost of failure is more money than they are likely to make in a lifetime. If professional attorneys specializing in a particular area of law cannot remember it all, what hope can there be for the average person? At one time in the U.S. a "lawyer" was simply "the smartest man you know".

These days, if things weren't bad enough, many judges are actually quite hostile to a person appearing pro-se, even when it is quite clear that the person wants representation but cannot hope to afford it.

To cap it off, there is no sure way to avoid being a defendant. Anyone can sue anyone else for anything at any time. If a suit is completely groundless, the defendant will likely win IF THEY ARE WELL REPRESENTED IN COURT.  However, even then it may be a pyrrhic victory. The defendant's legal costs can easily exceed the cost of simply handing the demanded cash over to the legal extortionist. Lawyers know this, and often a settlement offer will be calculated to be just a bit cheaper than the cost of defense. This is especially true in the case of patent trolls.

It seems that without organised protest, this is unlikely to change. I am not a lawyer, so I cannot say exactly what the consequences might be, but I do wonder what would happen if thousands of people filed seperate and various suits in small claims court against a corporate patent troll.

More generally, what happens when citizens figure out that any organized group of 1000 people can arbitrarily issue what amounts to a five million dollar fine against any entity of their choice and the courts will help enforce it for them. Without doubt, it is an abuse of the court system, but no more so than the routine abuse of patent trolls.