Subject: Re: Examples needed against Soft Patents
From: Taran Rampersad <>
Date: Wed, 19 Jan 2005 03:01:44 -0500

This is a very interesting and educational thread.

Consider the Patent:
Consider the Copyright:

These are the two that we talk about when it comes to software. Yet we
always seem to neglect something that is inherent in proprietary
software - in 'closed source'.

Now, consider the Trade Secret:

A proprietary software company can profit from it's investment of
intellectual capital with a trade secret. It protects this trade secret
by simply not disclosing the source code. The Copyright of the source
code in such a case is mainly to keep employees from running off and
starting their own businesses that compete with the initial business.
That's where non-disclosure agreements and non-compete agreements come
into play when a proprietary software developer gets hired.

Non-disclosure agreements are really for Trade Secrets. Copyrights
assure that the same code isn't used in a competing product - or they
were, anyway. And patents... well, patents on software are a new way to
make money.

You see, if I patent something that I held as a trade secret, then it
means that I do not trust my employees to honor non-disclosure
agreements. After all, we're talking about proprietary software - the
code itself is a trade secret when you really think about it.

What caused this change? Well, some guy in M.I.T.'s AI Lab got a little
squirrely when he couldn't get the source to a device driver. Maybe a
few other people got squirrely too, but this guy took it dead serious.
And when he did that 20 years ago, proprietary software companies didn't
pay too much attention. Then this other guy - a college kid - writes a
kernel for all the stray GNU code lieing about. So this operating system
started, and evolved. And in a few years, it started to catch on. And
then some guys figured out just in time how to run more than one web
domain on a physical machine.

Suddenly, companies woth copyrights and trade secrets were sort of
forced to pay attention, because all this code was in the open. It was
free to use, once certain obligations were met - obligations which are
notably different than proprietary software, where "Don't ask, don't
tell, don't pursue" were mouthed by a President who had inappropriate

So all of this code is out in the open, and copyrighted - a true use of
copyright, like copyrighting text in a book instead of copyrighting text
in a book that is locked.

What to do? All this code is being generated... and it's out there
*gasp* in the open?! All of those things that used to be trade secrets
in proprietary software companies were in danger. So the proprietary
software leaders decided that they would open their code a bit, and call
it sharing. That didn't work out too well. So they started digging
around, banging on lawyer's doors and telling them that they had to
protect the trade secrets! And maybe one imaginative, low level
corporate attorney who wasn't focused on one aspect of the law started
thinking about patenting. It's too ingenious to have come from a
committee. So let's say that this attorney got to retire early, or got a
partnership, or something. I don't know.

So in Patenting source code, the code is - OPEN - but competitors have
to pay to use it. So the trade secret industry dies, and the patent
industry takes off. So he who holds the most patents wins, and the large
companies own the most patents - obviously - so they start shoving
around their weight. Every trade secret they had, they were patenting as
fast as they could because what was always a trade secret was now
threatened by Copyright. On top of that, there were vagabond software
developers floating from company to company.

Let's get this straight. Trade Secrets were threatened by Copyright, so
the response was patents. And IBM probably saw that it couldn't beat
Microsoft at the patent game, so instead it decided to help drop the
bottom out of the market and make a few friends along the way. Then
again, maybe Big Blue's corporate team is really altruistic! Who knows.

Now if we really want examples against software patents, shouldn't we
look more at the effects on the proprietary software industry? I'd love
to know how many software patents that every company owns right now.
It's like a stock market, and IBM just started what might crash that
market. Then Poland stood up in Europe, and so forth.

The question I have is - what's next? It seems that we're more observers
than participants.

Taran Rampersad

"Criticize by creating."  Michelangelo