back to article Torvalds weighs in on Microsoft's patent dance

Linus Torvalds has reportedly piled into Microsoft after its senior legal eagle after claimed the Linux operating system violates hundreds of the company's patents. Torvalds, the Linux trademark holder, told InformationWeek's Charlie Babcock it's more likely Microsoft is a violator of patents given most work on operating …

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  1. Andy Bright

    A prime example of everything that is wrong with patents

    This is exactly why the whole patenting system should be thrown out the window.

    Under these mercenary laws you don't have to invent anything, innovate anything or produce anything. You just have to be the first one present a vague theory as your own.

    If you must have patents then at least throw out any patent that isn't actually being produced by the company that filed it.

    There would be some minor injustices, but for me IP is more than adequately protected by copyright. If you are the first to create something, you have a product you can copyright - and that should be more than enough.

    Inventors, real ones, do actually produce a prototype of their creation. This would be adequate for copyright purposes.

    If companies that vacuumed up patents were forced to actually produce a working example instead, the costs alone would surely put a severe dent in the numbers they would file.

    The only other idea I have would be to create laws that allow companies to sue anyone that claims patent violations without the evidence to back it up. Evidence an expert in the field would recognise as proof of concept. Have the renumeration tied to a company means test and perhaps Microsoft would be slightly more wary about spreading FUD.

  2. Rick

    Up the Ante

    Let's pass the law that Gonzales is proposing and take down all Open Source companies and coders at once. This clearly fits the definition of attempting to infringe on copyrighted IP. Need to have some HP style wiretapping at Novell and Red Hat as they are now the biggest offenders. Life for them no less.

  3. Anonymous Coward
    Anonymous Coward

    Patent Laws

    I may not understand patent law correctly, but I thought there was a legal requirement for patent holders to enforce their patents, or else they would become null and void?

    How do companies deliberately sit on these things until they feel like pouncing? Supposing MS finally decides to prosecute Linux, I would think that any judge would throw it out on the grounds that they knew about the infringement and refused to give the offending party a chance to remedy it.

  4. Tim Bates

    US Patent system == Broken

    Patents should not be allowed on non-physical items. I think Yahoo Serious got it right in the movie "Young Einstein" (though it was not his character that said it)... You have to have an invention to patent an invention. If it's all in your head, "what should we do? Patent your head?"

    US laws suck 99% of the time. What a screwed up country.

  5. Chris

    Patent laws, patentability

    Brent, sadly you are mistaken. Patent holders are not required to enforce their patents at all, which is why we see such selective lawsuits. I believe what you're thinking about is a trademark. You do have to enforce your trademark, or you risk losing it.

    Regarding patentability, I would suggest a slight variation of the "it must be a physical product" idea. The variation being that the patent must be for a physical product, but the product should not have to be constructed already. I think it should be acceptable to have plans for a physical product as opposed to having to have a physical product. Detailed blueprints, plans, drawings, etc. should be acceptable, but only for a limited time (and by "limited time", I'm not talking the kind of "limited" that the copyright term is; perhaps 1-5 years). That would give the inventor protection for his invention while still allowing him time to build the physical product (and acquire the startup capital if necessary). If he does not build (and show proof of) the physical product within that limited time period, then the patent would be revoked.

  6. Daniel

    You do NOT need to enforce your patents to keep them

    Brent (et. all, in other articles and elsewhere):

    In general, there are three types of Intellectual Property (I'm going to exclude trade secrets for now), copyright, trademarks, and patents.

    Copyright is "automatic" - all you have to do is to put a little copyright notice in any creative work, and you have copyright. In addition, congress keeps retroactively extending the copyright length of recenr work, effectively keeping works made since 1923 copyrighted until at least 2019. Copyright applies to specific works, such as actual source code, NOT to a "method of doing something."

    Trademarks are distinctive signs, indicators, phrases, etc., used by businesses to uniquely identify themselves and their products and/or services. While trademarks do not /have/ to be registered, your ability to legally enforce ownership of them is much greater if they are properly registered. A trademark is unique amoung the the three types of IP in that if a trademark is not enforced, it may be "lost."

    Patents are IP on METHODS of doing things. Patents must be registered. You do not need to enforce patents to keep them valid. Patents are valid until they expire. In addition, patents can be, with a fee and a simple bit of paperwork, extended - the exact amount of time they can be extended depends on the type of patent.

    Daniel B. (speaking from the US of A, as a layman)

  7. Roger Greenwood

    Patent Enforcement

    Brent - you do not have to enforce patents to hold them. In fact it is usually a last resort due to the costs and delays.

    My company holds patents (on a real product, not just an idea) but we have concluded they are waste of time. If a company as big as microsoft wanted to nick our idea and make a similar product, we could not afford to take them to court - they would make mincemeat of us.

    Patents are only good for big business against big business, forget us little guys.

    If you think you have a killer idea, sell it to a big boy and get out quick, else keep it a secret (patents are all fully published).

  8. Graham Dawson

    Sucky laws?

    Hey Tim, you forget that nearly all US law and statue is based on UK law and statue. They kept all the laws that existed at the time of their war of independence and followed ours for a long after as well. It's only in the last half century or so that they've started to diverge. Those 99% of laws you're talking about are more than likely direct descendants of our own legal system and common to both countries. Just so you have a little perspective... :)

  9. Tony

    Trademark

    You don't have to enforce patents, but you have to enforce trademarks and copyright or you lose them (once you become aware of the use of them). In the UK you need to show you have made efforts to find non-court methods of resolution. Our courts are now much stricter on this and if you can't demonstrate all reasonable efforts to find alternative remedies the courts will either refuse to take the case or let you proceed but make life very difficult in refusing evidence etc. Don't know if it applies in US but in the UK they would have to show attempts at arbitration or other alternative dispute resolutions, and tie down the issues to the exact points to be decided before the case starts, or MS's barrister would get kicked around the court by the judge and defence. If MS didn't specify the breaches in detail pre-trial a judge would most likely refuse them to do so in court. The courts are fed up being used by litigants to above their position and a number of big companies have lost out because their lawyers thought they could play the old games and do a deal on the court steps - now if you try that the defence wanders in, the judge rules any previously undisclosed stuff inadmissable and the litigant gets stuffed for costs! How it should be in a fair system.

  10. Anonymous Coward
    Anonymous Coward

    What if...

    The thing is though, what if Microsoft actually had a real case and Linux was riddled with ideas stolen from other companies? What if the kernel included code stolen from reverse engineering Microsoft software? It just wouldn't just be calamitous from the side of patents, it would undermine the entire Linux movement because it would invalidate their entire criticism of Microsoft. If you ask me, the Linux movement is quite lucky that Microsoft is so secretive about revealing its source code, if it wasn't, I reckon Linux would have been in the dock years ago (though given Linux is a pretty conservative reimplementation of Unix I doubt Microsoft isn't the only company wondering if its IP hasn't been violated).

  11. Anonymous Coward
    Anonymous Coward

    Patently obvious

    "to create laws that allow companies to sue anyone that claims patent violations without the evidence to back it up"

    LIBEL really ought to cover that. But taking action against a libeler is expensive and the result is more likely to depend on your budget than the validity of the claim. Pretty much like challenging a patent, in fact.

  12. Robin Vickery

    Patent Enforcement

    Chris,

    I don't know about US Law, but in under English law a plaintiff has a duty to mitigate damages.

    http://dictionary.law.com/default2.asp?selected=1268

    If they know of an infringement they can't just sit back and let the damages rack up, especially if the alleged infringer has publicly offered to put any infringement right.

    -robin

  13. James Anderson Silver badge

    Patents no longer fir for purpose.

    Patents were intoduced to encourage innivation and to ensure inventors were rewarded.

    The current patent system actively discourages innovation.

    The costs and complexity of patent litigation mean that the law can only be applied by rich well established companies.

    Small innovative startup companies face crippling costs trying to avoid patent violations.

    Once a small company starts to make reasonable profits they attract a shoal of lawers from "Intellectual Property" companies who by up job lots of existing patents to scare small companies into out of court settlements.

    The USA is just not a good place to do business anymore.

  14. A J Stiles

    Estoppel by Delay

    If you hold a patent and have reason to believe that someone is infringing upon it, you have an obligation to take action as soon as reasonably possible. Failure to do so may be construed as implying a licence to use the patented invention, and could be used in a defence should you attempt to prosecute in future.

    Furthermore, the patents in question are null and void in the UK, most if not all of the EU and, for that matter, most of the world outside the USA; since in jurisdictions with sane patent laws, abstract mathematical processes are specifically not patentable.

    (And, I Am Not American, but doesn't retroactive extension of copyright violate section nine of the US constitution, if not Article 11 of the UN Declaration of Human Rights?)

  15. IP Freely

    Spelling

    I thought this was a UK website. If so, why is the word in the article spelt 'saber' and not 'sabre'? I realise that the correspondent is in San Francisco, but all the same the reg editorial team ought to pick up on these American spellings.

  16. Anonymous Coward
    Anonymous Coward

    What if, remix...

    The thing is though, what if Linus is right and Windows is full of code that draws inspiration from others' efforts? If you ask me, it's a good idea for Microsoft to be secretive about revealing their source code, if it wasn't, I reckon they would be bankrupt several times over.

  17. Daniel

    Re: Estoppel vs. Laches in the USA

    First off, I'd like to preface this by saying that not only am I not an attorney, but IP law is one of the more byzantine areas of US law. This is my understanding after being exposed in bits and pieces over the years, and doing a little bit of research on my own. But you should consider this to be more than the usual IANAL disclaimer. Most of what I'm seeing on the net on this topic, including my own posts, even including what I'm seeing written by journalists, is clearly being written by people who don't have a firm grasp on the topic, and some of the worst offenders are from those that think they do. So, you have been warned.

    As far as I am aware, there is a significant limitation to a simple patent "delay" defense under US case law. That is, if a patent holder becomes aware of an infringement of their patents and does not enforce their patents for a particularly long time (6 years seems to be the standard?), the patent holders ability to persue damages for infringement prior to their actual attempt to enforce their patent may be at risk (mainly, the defendant has to think to ASK for the shield). However, this does NOT prevent the patent holder from seeking injunctions preventing further infringements in the future. This is still not a winning solution for the OSS crowd (or, honestly, anyone else) should patent suits start flying.

    In contrast, should the patent holder begin to enforce their patents, such as with a cease and desist letter, and then drop or fail to follow up on their claim, after a reasonable period of time the alledgedly infringing party may reasonably consider the matter to be closed. Should the patent holder attempt to persue the matter again at a later date, they (the defendant) may request that the court have the plaintiff estopped, that is, completely barred from enforcing that patent against them.

    Finally, re: USA vs. the Rest of the World.... yes, yes, yes - you are all right (well, as far as /I/ know). These patents are worthless in the more sane portions of the world. But look who the major players are. Microsoft. Redhat. Novell. IBM. Sun (if only, in this particular case, for OpenOffice). A few hundred unnamed Fortune 500s. This fight, if it makes it to the courts (which I for one doubt it will, actually) will take place in the US court system. Let me make myself clear here - I don't support the gross overreaching that the US has done in recent years. In this case, however, whatever lawsuits are filed (if any) will almost certainly be with both parties in the US, so it's going to be under US jurisdiction, and we're going to have to deal with US law - even if it is fundamentally broken when it comes to software patents.

    -Daniel B.

  18. Tr0n

    Copyright versus patent

    I know that copyright is a bit more flexible of source code.. especially if it is the only reasonable way to achieve something - I doubt the (not-so) humble patent can allow for such an event.

    I will be glad when Microsoft produces the list which we see crumble away to dust.. The few patents which remain can be easily settled in court as simply editing the code and removing the offending items.

    Well done Linus for firing back!

  19. Luke

    Yes indeed, what if ....

    "The thing is though, what if Linus is right and Windows is full of code that draws inspiration from others' efforts?"

    I'm convinced that this is the case: Windows and other MS products are full of copied/borrowed/stolen stuff. Considering the history, it's IBM, Apple, Sun, and many others, that would easily find their code in Microsoft products were they given the source to examine.

  20. Anonymous Coward
    Anonymous Coward

    Do unto others...

    I think everyone should send an email to Microsoft claiming you hold a patent and they better pay up a fee or else...

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