Subject: Re: Examples needed against Soft Patents
From: Ian Lance Taylor <ian@airs.com>
Date: 18 Dec 2004 22:21:14 -0500

Bernard Lang <Bernard.Lang@datcha.net> writes:

> - One major argument that was used against me is :
> 
>   there have been software patents in the USA and Japan for 20 years
>   (their number ... it is actually more like 10 years, I think)
>   but free software is still doing well in both countries.
> 
>    How do you answer that?

I've heard this argument before.  This is my answer, for what it's
worth.  Other's have written extensively and well on the issue of
software patents in general, though I don't know how many focus on the
specific issue of free software and software patents.

It's commonly believed, and I think is true, that large software
packages all violate at least some software patents.  Free software
has mostly slid by because there is often nobody obvious to sue, and
there is no obvious amount of money to be made by filing suit.
Patents are not like trademarks--they do not require constant defense.
You can sit back and wait ten years, until somebody is making money
off your patent, before you bother to file suit.

There have been some obvious cases in which free software was affected
by patents:

  * The LZW patent (actually, one of two patents granted to different
    companies on the same algorithm) forced the abandonment of some
    compression programs, and the abandonment of GIF producing
    programs.

  * The RSA patent delayed the development of free crypto software
    until RSA freed the patent shortly before it was due to expire.

  * The Purify patent on detection of pointer errors prevented the
    development of similar technology in free software, and thus
    indirectly slowed easier detection of security flaws due to buffer
    overflows.

However, in most cases there is no particular advantage to the patent
holder to prevent the development of free software using the patent.
Free software only becomes relevant when it directly competes with
software produced by the patent holder, or produced by those whom the
patent holder wishes to sue.

The biggest patent holder in the U.S. software industry is, of course,
IBM.  As IBM has currently aligned itself with free software, IBM has
no incentive to use its patent portfolio against free software.

Microsoft is a more serious issue.  So far Microsoft has generally
avoided using its extensive patent portfolio as an offensive weapon
(unlike IBM).  However, as Microsoft continues to be threatened by
free software, they are increasingly likely to start counterattacking.
They have even made noises in this regard, with their claims that
Linux violates some significant number of patents.

In short, free software currently exists on sufferance.  If Microsoft
chooses to unleash its full patent portfolio on free software, it will
significantly slow the development of many significant pieces of free
software, and will probably destroy some of them altogether.

Of course as you know software patents are in general an unwise idea.
Unlike the traditional view of patents, software patents are a
mechanism which favors the entrenched companies against the
innovators.  I think the only people in favor of them are the
uneducated and the representatives of large software companies.  This
is unfortunately a large population.

Ian