RE: [Patents] Linus: kernel development no longer legally possible

["Steve Wilcox" <spwilcox@acm.org>]

If the principal objections to SW patents are (1) obviousness and (2)
novelty, both according to the standards of the art in question (computer
science, operations research, statistics, finance and accounting and the
other information specialties), then why all this ruckus about whether
software is patentable per se?  It seems like such a distraction from the
main point, which is the granting of obvious and non-novel patents. The
USPTO has no professional standing in the above-mentioned arts, does not
have expertise there, and cannot apply the statutory definition of
obviousness.  Moreover, it cannot offer a market wage in many of these
areas, so could not be reasonably expected to be able to determine
obviousness or novelty.

What do you think?

Steve

-----Original Message-----
From: phm@a2e.de [mailto:phm@a2e.de]
Sent: Wednesday, August 21, 2002 6:33 PM
To: news@ffii.org
Cc: patents@aful.org
Subject: [Patents] Linus: kernel development no longer legally possible


See

        http://lwn.net/Articles/7001/


   Memory management and patents


   Linux VM hackers are engaged in ongoing discussions on both large page
   support (covered last week) and improving the performance of the new
   reverse mapping mechanism. That conversation slowed down, however,
   when Alan Cox pointed out that a number of the techniques being
   discussed are covered by SGI patents. In fact, a closer look by Daniel
   Phillips shows that a number of existing Linux technologies, including
   reverse mapping in general and the buddy allocator, are covered by
   these patents. This is a problem, he said, that we can't ignore.

   That was Linus's cue to jump in with his policy on software patents
   and kernel code:

   I do not look up any patents on _principle_, because (a) it's a
   horrible waste of time and (b) I don't want to know.

   The fact is, technical people are better off not looking at patents.
   If you don't know what they cover and where they are, you won't be
   knowingly infringing on them. If somebody sues you, you change the
   algorithm or you just hire a hit-man to whack the stupid git.

   Linus followed up with a note that the above "may not be legally
   tenable advice." But he sticks by his point that, anymore, it's
   impossible to write an interesting program without running into
   somebody's patent. Rather than worry about it, it's better to just
   proceed and deal with any problems as they emerge.

   This is probably the only rational approach; otherwise kernel hackers
   would go nuts trying to find and avoid all of the applicable patents.
   It's probably only a matter of time, though, until one of these
   patents bites the kernel in a big way - at least in the U.S. Those are
   the times we live in, though.

Unfortunately the times are the same in Europe.  There are hundreds
and thousands of EPO patents on basic memory managment calculus with
the same claim scope as their USPTO counter parts, and the European
Commission as well as some leading people in the European Parliament's
Legal Affairs Committee (Lord Inglewood and Arlene McCarthy) seem
determined to legalise these patents and make an even bigger flood of
similar patents unavoidable in Europe.

--
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
120,000 signatures against software patents      http://www.noepatents.org/