Subject: Re: Examples needed against Soft Patents
From: "Stephen J. Turnbull" <>
Date: Wed, 19 Jan 2005 19:25:27 +0900

>>>>> "Taran" == Taran Rampersad <> writes:

    Taran> Now, consider the Trade Secret:

AKA the "ASP loophole" in the GPL.  People are well aware of this
aspect.  But trade secrets can't force free software to go _backward_.
Nobody, most especially Richard Stallman, seriously argues that
companies that don't want to tell their secrets should be _forced_ to
by law.  (Cf his argument that the Apple Public Source License is
non-free.)  What worries him and others is corporations using their
copyrights and patents to legally enjoin, and failing that,
intimidate, free software developers from creating and sharing free

    Taran> You see, if I patent something that I held as a trade
    Taran> secret, then it means that I do not trust my employees to
    Taran> honor non-disclosure agreements.

No, it could also mean you're afraid of reverse engineering (in the
true sense of mentally working backward from the behavior to the
program that produced it, as opposed to running a disassembler on the
ROM).  It depends on whether it is easier to work backward from public
behavior of a product to the secret program that produced it, or
forward from a published patent to a product that does not infringe
its claims.

    Taran> And maybe one imaginative, low level corporate attorney who
    Taran> wasn't focused on one aspect of the law started thinking
    Taran> about patenting.

But this certainly wasn't _caused_ by GNU: 1999 - 17 = 1982 (RSA, and
they were nowhere near the first to patent software).  Ditto LZW at
about the same time frame.[1]

    Taran> And IBM probably saw that it couldn't beat Microsoft at the
    Taran> patent game, so instead it decided to help drop the bottom
    Taran> out of the market and make a few friends along the
    Taran> way. Then again, maybe Big Blue's corporate team is really
    Taran> altruistic! Who knows.

No, I think that what IBM saw it couldn't beat Microsoft at was the
_OS_ game, and the _leverage the OS into a desktop monopoly_ game, and
the _leverage the desktop into a server monopoly_ game.  They
considered what the most effective way to kneecap Microsoft was, and
they realized that there 1,000,000 spoilers out there, writing OSes
that neither IBM nor Microsoft can beat for performance/cost on the
desktop or RISC machine, and webservers that IBM can add some
proprietary "security" to, etc, which kick Microsoft right in the
b...rowser monopoly etc.  How can IBM encourage this really annoying
crowd of gadflies to do even more damage to a dangerous enemy (and
don't forget spite! IBM was the biggest single loser from Bill Gates's
ingenious "Microsoft tax")?  One simple way (with lots of good PR to
boot) is to make a binding promise to make their patents safe for

The other thing that you should remember is that in the last
half-century the only world-class firm to be drawn and quartered at
the hands of the DOJ was a franchised monopoly, while the US
government has been heading more and more in the direction of giving
firms (such as IBM and Microsoft, who both were in the dock in that
period) free hand in carving out monopolies and collusive agreements,
as long as they can do it through economic power rather than
government franchise.[2]  IBM has been around for long enough to take
the long view; sure, the DMCA etc are a successful desperate rearguard
action strengthening IP, but they are still arguably a desperate
rearguard action.  The trend in US public sentiment, and emerging-
market-about-to-join-OECD politics as well, is clearly in the
direction of freedom of information in many senses.  It's just as
important to catch the wave in business as it is in surfing!

[1]  I think my dates and the length of patent term are likely wrong,
but it's close enough for gov't work.

[2]  There's a major review of antitrust policy going on right now,
and at the American Economic Association meetings earlier this month
several eminent economists, all but one of whom have recently been
Chief Economist at the FTC or DOJ, explained the theoretical rationale
for this movement in a panel discussion.  One panel member is the only
economist on the DOJ's review committee, and he confirmed that the
committee is heading in that direction, too.

Institute of Policy and Planning Sciences
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
               Ask not how you can "do" free software business;
              ask what your business can "do for" free software.