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20070531 Thursday May 31, 2007

links for 2007-05-31

Posted by webmink ( May 31 2007, 01:25:12 AM PDT ) Permalink Comments [3]
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20070530 Wednesday May 30, 2007

US OOXML Discussion Now Public

I just heard that INCITS V1, the group making the recommendation to ANSI on whether the US should support Microsoft's proprietary OOXML format in being fast-tracked to ISO, is considering creating a public archive of its conversations on the subject. In the interim while they consider a more formal arrangement, Jon Bosak has placed the April and May correspondence on iBiblio. Take a look and, if you're a US citizen, use it to guide the comments you make to INCITS V1.

Posted by webmink ( May 30 2007, 04:03:07 PM PDT ) Permalink Comments [2]
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links for 2007-05-30

Posted by webmink ( May 30 2007, 01:23:24 AM PDT ) Permalink
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20070529 Tuesday May 29, 2007

LiveMink: Jeff Waugh

Another skipped week, but my recorder is full of interviews so hopefully we should have weekly programming for a month or so, assuming the editing happens this week.

This week's LiveMink podcast is an interview with perky chappie Jeff Waugh. Jeff and his partner Pia run an Australian Free/open source software consultancy in Sydney, and are the Brad and Angelina of the FOSS community down-under. They recently co-ordinated the OpenCeBIT conference within the huge CeBIT Australia event in Sydney, and they invited me to speak there. Jeff is on the board of the GNOME Foundation and talks to me about his involvement there, his new mobile software activity and more. Listen on!

LiveMink—[MP3]—[Ogg]—[iTunes]—(12' 14")

Posted by webmink ( May 29 2007, 04:00:00 AM PDT ) Permalink
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links for 2007-05-29

Posted by webmink ( May 29 2007, 01:22:33 AM PDT ) Permalink Comments [1]
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20070528 Monday May 28, 2007

links for 2007-05-28

Posted by webmink ( May 28 2007, 01:21:12 AM PDT ) Permalink
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20070527 Sunday May 27, 2007

links for 2007-05-27

Posted by webmink ( May 27 2007, 01:21:02 AM PDT ) Permalink
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20070526 Saturday May 26, 2007

links for 2006-05-26

Posted by webmink ( May 26 2007, 05:07:33 AM PDT ) Permalink Comments [2]
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20070525 Friday May 25, 2007

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Posted by webmink ( May 25 2007, 01:27:08 AM PDT ) Permalink
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20070524 Thursday May 24, 2007

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Posted by webmink ( May 24 2007, 01:26:12 AM PDT ) Permalink Comments [1]
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20070523 Wednesday May 23, 2007

Seven Patent Reforms While We Wait For Nirvana

Snow Plant in Yosemite

eWeek has published a Q & A with me today around patents, and I'd like to clarify my stance on the subject. The subject of software patents is a clear one to me. Personally I'd go further than Greg and say that I oppose software patents. They represent a profound imbalance in the social contract that justifies the granting of temporary monopolies, because they convey almost no know-how to programmers. It's unfortunate that case-law in the US allowed this to happen; it is a disaster that trade missions have then forced other countries around the world (such as Australia) to enshrine them in law.

I spent a considerable amount of time (along with Mark Webbink of Red Hat) effectively lobbying against the "CII Directive" in Europe, and I regard the absence of software patents in most of Europe as a key factor in the growth of innovation through open source over here. The software industry flourished for years without them, and they promote greedy behaviour that chills innovation and retards the evolution of the 21st century's participative software industry.

Having said that, I am also a realist. All the time software patents are allowed to exist, companies risk shareholder actions if they don't pursue them. Consequently, most companies of any size are accumulating patent portfolios that probably include software patents. As I wrote on Monday, what matters is what you do with them, and a great first step to controlling the risk they introduce is patent non-assert covenants.

While the sort of idealism that Mark exhibits is laudable, the truth is that we are far more likely to see modest reform of the patent system than a radical revision, and the elimination of software patents seems very unlikely. So what ought to happen? What regrettable-but-pragmatic reforms are needed while we wait for the root-and-branch revision that sweeps away software patents for good?

Sun is supportive of the Patent Reform Act of 2007, which Mike discusses in some detail in his blog. In particular he summarises its scope as:

Included in this proposed legislation is:
  • A limitation on patent venue (commonly referred to as “forum shopping”).
  • The creation of a post-grant proceeding to cancel a patent after issuance. This is in recognition that the current methods for challenge - PTO reexamination or litigation - are not effective nor efficient.
  • Changes that will make it more difficult to demonstrate willful infringement, a finding of which is subject to treble damages. It also limits damages to a reasonable royalty for the invention itself instead of the value of the product into which an invention may be incorporated. (This one would go a long way toward making these litigations less attractive.)
  • Creation of a first to file system. Interestingly, the U.S. is currently one of the only countries that grants patents to the first to invent instead of the first to invent and file.

But I personally also believe we need to address some other issues too. If I were king (or at least an autocratic president), I'd do some or all of these:

  1. Since most use of patents is to force licensing in an out of court settlement to avoid injunctive relief:
    • Limit the availability of injunctive relief to cases of prima facie willful infringement.
      It's way too easy to get an injunction that forces your victim to stop shipping their product. Many royalty agreements come about as people settle to avoid the inevitable injunction that appears in infringement suits; it's rare for a case to go all the way to appeals or patent invalidation. Andy has more on this. I'd also prohibit injunctive relief if patent licensing is unreasonably withheld.
    • Make it easy for patent licensees to recover their license fees if a patent is invalidated.
      The settlements people make in such cases aren't usually affected by the invalidation of a patent later. If licensing fees had to be refunded when patents were invalidated, I believe we'd see trolls wither and die since even if their "blackmail" worked, they'd have to pay the loot back later.
  2. If we have to have software patents, their term and applicability needs control:
    • Make them last no more than five years, renewable once (maybe, and only if used in products).
      Timescales in the software industry are so short that anything more is effectively a lifetime patent.
    • Make them unenforceable against ISO standards (and possibly other bodies).
      There could be an exception that allows enforcement of patents declared to the standards committee during the standardisation process. That way, the mobile phone industry (which depends on such things) would be protected, standards participation would be encouraged and we would all know which "standards" to avoid.
    • Give immunity to implementations created in clean-room conditions for interoperability.
      European copyright law allows reverse engineering for purposes of interoperability. Patent law ought to allow the same sort of freedom. It makes no sense to encourage a free technology market with copyright law and allow its monopolistic taxation with patent law.
  3. Since software patents require far less investment than other kinds, they should have a higher standard:
    • Consider treating a failure to identify prior art as perjury.
      I got slapped about last time I suggested this, so it would need some strong safeguards, but it seems to me that since the main use of patents is to extract royalties without legal review on the basis of their existence, creating a patent which is subsequently invalidated by prior art ought to be penalised.
    • Require sample code to be filed with the patent.
      Software patents currently provide nothing that a programmer finds useful. They are effectively a description of how to prove that a program is infringing, not a description of the know-how so that the knowledge of society is enhanced. Since that is actually the foundation of the social contract that justifies patents, it seems obvious to me that software patents should include a viable implementation with a free copyright license (BSD perhaps) so that after the expiration of the patent the know-how is readily available.

I'm not a lawyer so I don't know how workable all these are, but it's clear Something Must Be Done. So, what would you do?

Posted by webmink ( May 23 2007, 01:36:28 PM PDT ) Permalink Comments [7]
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20070522 Tuesday May 22, 2007

Now With Added Comments

Just a note to say that SunMink blog now offers comment feeds in both RSS and Atom formats.

Posted by webmink ( May 22 2007, 12:00:01 AM PDT ) Permalink
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20070521 Monday May 21, 2007

Ten Reasons The World Needs Patent Covenants

Yosemite Valley River

Among the things Sun does to protect Free software developers from patent threats is to issue patent non-assert covenants. We did it for ODF, we did it for UBL, we did it for SAML, we did it for WebSSO, and we just did it again for OpenID. The idea has spread a little but needs to spread much more widely. Here's why.

  1. It's a blanket promise connected with the technology in question that's not restricted to particular facets or features - it doesn't just have a list of a few carefully-selected patents and leave you to wonder what's not granted. A blanket statement like this just says "no need to look, you're safe, Sun is on your side".
  2. It's irrevocable. It's a promise you can rely on for the long term, regardless of changes in Sun and the industry.
  3. It's global. No games involving smiles in one country or state and attacks in places that don't hit the news so much or have laws that encourage patent aggression.
  4. It's not time-limited for the projects where Sun is able to join the process - there's no "everything before this point" clause. For example, it extends into new features added to future versions of ODF all the time Sun continues contributing to its development, and doesn't end if Sun stops participating.
  5. It's reciprocal (we won't sue you if you don't sue the community). That means that we're still able to take action to protect ourselves and the community we participate in, despite providing rock-solid safety for developers and end-users.
  6. It builds a web of protection because it is reciprocal. As each new participant offers a similar covenant, the consequences of a patent action on any member of the community become greater and greater, enforcing the peace more strongly.
  7. There's no bureaucracy. Some moves in the past have sounded generous but have required some sort of action to register a license or act in some other way that limits redistribution of software that's trying to benefit from the protection.
  8. It's simple and clear. There is no game being played and you tell because you can understand the whole thing. It's about as simple as an effecive and binding legal document can be made.
  9. There's no "essential claims" language. Most statements like this one include language that says that you only get a "waiver" if you've no choice but to infringe the patent - according to the patent holder, that is, there's no certainty available! This statement sets you free regardless, no judgement call required.
  10. It's cheap! You don't have to search your portfolio for relevant patents if you don't want to, you can issue a non-assert covenant just for the cost of typing the document.

Of course, this doesn't help protect against patent trolls directly (although over the long term it will since most patents in an area come from parallel filing), nor does it address the problem of deficient covenants, but I believe a key improvement to the world of standards would be to have all bodies generating software patents require participants in their processes lodge patent non-assert covenants instead of the common current practice of simply requiring a best-effort disclosure.

It's high time standards bodies worldwide caught up with the needs of open source. We need more companies to issue - and expect - patent non-assert covenants, especially since those with the largest patent portfolios have yet to start issuing them, despite their claims of support for open source. Some time soon we'll need to collectively shun "standards" (and indeed vendors) who won't protect developers in this way.

Posted by webmink ( May 21 2007, 04:59:05 PM PDT ) Permalink Comments [2]
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links for 2007-05-21

Posted by webmink ( May 21 2007, 02:21:09 AM PDT ) Permalink
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