The big story of the last few days is Microsoft’s claim that Linux and FOSS infringes on 235 of their patents and that it is time for businesses running Linux to start paying up for that IP. Beyond the rather shady approach Redmond has taken with this - mainly because it resembles too many ‘tales’ written by Puzo - it gives rise to a few questions that others have already answered. I will share my thoughts on a topic that deals with only a small subset of the patent issue at large.

To begin, I have rather mixed feelings about software patents. It used to be all black-and-white - they are eeevil. I acknowledge that a company that spends resources developing certain technologies should receive some credit for their effort. Whether that means 20 years of monopoly, though, I am not convinced. I can understand 3 or 5 - still a long time if somebody has a great idea but a shitty implementation - but not 20. The kind of lockdown that a 20 year-old feature instills might be great for somebody’s pockets, but it does undoubtedly hinder innovation and technological evolution. Where this makes sense for a company it definitely bothers the user - and as most of open source software was created by users, they have taken the matter into their own hands. This isn’t - in and of itself - enough justification to warrant change; after all, a far-fetched analogy would mean that if everybody drinks and drives, DUI laws should be abolished. It isn’t enough but it’s definitely a wake-up call for the heavyweights to re-think their approach and their business models. It’s happening with the entertainment industry and be sure that it will happen in the software world.

Some people’s views are that the patent system has been put in place to protect the little guys that had the chance for a breakthrough. While that may be true to a certain degree, I see generally two types of patent suits being filed¹

1. The big guy hitting another guy to maintain monopoly over a sector (of which the aforementioned Microsoft threats seem to indicate.)
2. The patent troll that makes money off of sitting on inventions and hunting for others that infringe on them.

In case of 1. the solution is not so obvious and has a lot to do with what I have discussed above. More approachable limits on patents - at least of the software kind² - would definitely cover a large portion of these unfair dealings. But is it enough?In case of 2. there is a simpler approach. Do not allow patents to be filed for unless a working product is available as a demonstration at the time of the filing. Ensure that when a company acquires somebody else’s intellectual property portfolio they keep those products as well and continue to work with/at them.

For companies that still do not want to risk their technology in the wild there is a thing called a ‘trade secret’. Worse yet than a patent because it contributes to closed software, but if somebody manages to create something similar, one may not sue³ and has to live with it. So while for software like Windows, where what the OS does can be more or less seen, a patent would make a bit more sense, wacky algorithm implementations could be distributed as binaries.⁴

There are many other alternatives and even more points of view. Just hit Slashdot if you’re curious. But in a less-than-perfect world, things need to be done in small steps sometimes.

1. Insofar as my Slashdot reading comprehension informs me [↩]
2. This distinction is made because in software, technologies that sell well start doing so early on. Where the implementation is up to par, 3 years of monopoly are enough to offer somebody a strong foothold in the industry that they must maintain afterwards [↩]
3. There is a gray area and a lot of work to be done to prove reverse engineering, when doing so would be in violation of an EULA [↩]
4. Wow, am I going to flame myself for saying this… [↩]