Subject: RE: Patent-based dual-licensing open source business model
From: simo <s@ssimo.org>
Date: Tue, 26 Sep 2006 19:10:09 -0400

On Mon, 2006-09-25 at 20:36 -0700, Brian Behlendorf wrote:
> On Sat, 23 Sep 2006, simo wrote:
> > On Tue, 2006-09-19 at 15:54 -0700, Brian Behlendorf wrote:
> >> I'm not talking about "unrelated" works, I'm talking about scope within a
> >> single codebase.  What defines the boundaries of a piece of software, when
> >> it's not just one staticly linked executable running on bare metal?  There
> >> is complexity here that "patent law" doesn't address.  Even my "clear
> >> statement" didn't fix it.  "Smallest portion of code that embodies the
> >> patent" might be one way of putting it.  I'd put forth that patent law is
> >> even more subjectively enforced than copyright law, so punting to the
> >> courts for interpretation is not useful as a potential consumer of the
> >> patent.
> >
> > Brian, I'm sorry to say that here you show you don;t know how patents
> > and patents claims work.
> 
> You have my permission to revise the above statement if the below clears 
> things up for you.

I retire the statement, your explanation is much more clear now.

> > It doesn't matter at all where are the software boundaries. It all ends
> > up on whether or not your code implement the claim or not, the form this
> > code takes does not matter at all, you can rewrite it in 100 different
> > languages, and the claim may still be true and covering your code (it
> > really depends on how good is the lawyer+customer in writing the patent
> > claim, there is a push from the PTO at being as generic as possible so
> > that the claim can be as broad as possible).
> 
> You completely misunderstand the context, then, of my comment.

Yes, I understood a completely different thing.

>   Larry's 
> proposed business model is that I am compelled to release as Open Source 
> the source code to my software that implements the patent.  The boundary 
> of what is "software that implements the patent" is thus extremely 
> important - is it the entire mesh of different systems within my 
> enterprise?  Or is the smallest portion of that collection of systems 
> that, when removed, cause me to no longer practice the patent?  I'm pretty 
> sure it's closer to the latter than the former, but reasonable minds may 
> differ, and the patent holder is always going to be motivated around a 
> broad interpretation.  There either was or still is a patent on 
> "delivering multimedia objects via a network connection".  There's another 
> one on "holding customer credentials and payment information in a database 
> so that with 'one click' a customer can order an object from a catalog". 
> These are very broad kinds of business patents that a myriad of software 
> systems are employed to implement, and where it would be very difficut to 
> functionally separate out from the rest of the code.

I am sure *you* can isolate the piece of software that infringe into a
patent without sucking in the whole enterprise networked environment :-)

Simo.