Mono and patents

I’d like to propose a rule. Before anyone is allowed to discuss further the whole Stallman / De Icaza / Mono issue, they must name with specificity:

  1. The patents (by number) that they claim apply to Mono code, and:
  2. The particular pieces of code in Mono that the patents apply to.

I think this would much improve the level of debate around this issue.

10 Comments

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10 responses to “Mono and patents

  1. Alexander Larsson

    Not specifically related to mono, but:
    You are aware that by looking at any patent you risk double penalty for “willful infringement”, and thus almost everyone recommends that nobody in the software business looks at any patents?

  2. rich

    Alexander, thanks for the comment.

    In the US it’s treble the penalty for willful infringement.

    I don’t risk that, because I don’t live in the US. In fact software patents in the EU are still a matter of some debate as to whether they really exist for us.

    Nevertheless, there’s been a great deal written by commenters in that Slashdot article about how Mono is so covered by patents that it’s unusable. But patents cover all modern software, and are a minefield for all developers, so singling out Mono on these grounds is disingenuous.

    If those commenters claim that patents are a unique problem for Mono, but not for anything else, then they should be able to prove it.

    And no one is yet telling me what patent numbers apply.

  3. Stephen Smoogen

    The problem with patents is that the only organization who could really tell you that is Microsoft. Other lawyers could give opinions on various things, but just looking and discussing it can get you into serious trouble. Software patents have all become a game of Fear, Uncertainty and Doubt.

    Since exact mathematical descriptions aren’t required it is more about how far a judge or jury will agree that your description of a mathematical model or method covers some aspect of some other code.

    And like high-stakes poker with guns, everyone gets a bit angry and miffed because you are never really sure if the other side has a friend of the dealer and if he is dealing from the bottom or not.

  4. Alexander Larsson

    rich:
    You don’t personally risk it, but publically presenting such patents may risk other developers who live in the US, as it may be argued that they knew about the patent.

    Anyway, just making sure people are aware that going around looking for patents can be a bad idea.

  5. rich

    Stephen, thanks for commenting.

    It’s quite interesting you say “the only organization who could really tell you that is Microsoft”. Because compare that to Adobe’s patents on PDF.

    Adobe clearly tell us which patents (by number) they claim to apply to PDF:

    http://partners.adobe.com/public/developer/support/topic_legal_notices.html

    It’s sort of interesting that Microsoft don’t tell us this with specificity in their “patent promise”.

    Anyway it still stands. If Microsoft or anyone claim that patents apply to Mono, let’s see a list of patent numbers.

  6. rich

    Alexander Larsson, I think unfortunately this attitude that no one can even search for patents contributes to the FUD around this debate.

    If Key Contributor #1 to the Linux kernel starts to look for patents, then (maybe) that increases his or her personal liability for willful infringement.

    But Joe(s) Random Community Members can look, and if they find nothing, then there is no extra danger for anyone.

    In any case I don’t think people will actually be looking through patent applications, because patent applications are written in willfully obscure language, which might as well be ancient Greek to computer programmers. (And I’m a computer programmer who wrote two software patents and studied ancient Greek, so I’m not sure where I stand on this debate …)

    The companies who claim to hold or defend against these patents must tell us what they are, otherwise we have to assume they don’t exist.

  7. Stephen Smoogen

    rich, sadly the law on patents and searching is another area of Fear Uncertainty and Doubt.

    1) Microsoft does not ever have to tell you what patents software is covered unless they bring you to court for infringement. The standard tactic in patent

    2) Courts have ruled that people in nebulous ways that known searches can impact an entire company (and by various extensions communities) even if implementor did not know about the search.

    3) One of the additional fears is that courts will begin ruling that even if you did not know of the patent, you should have because the information is ‘so easily found’ via various online databases.

  8. rich: proposing rules you cannot possibly enforce is a silly rhetorical trick, and doesn’t improve your argument at all.

    there is a quantitative difference between Microsoft patents and those of most other companies, because Microsoft has actively made threatening noises about how significant open source components infringe its patents (without specifying which), and implied that it could take action over this. It has also made threatening moves like creating its patent ‘non-aggression pact’ with Novell and talking pointedly to the press about how other vendors haven’t signed similar agreements. You can think Microsoft doesn’t represent a patent threat to open source, but Microsoft certainly doesn’t seem to agree. Until Microsoft explicitly rejects the interviews, presentations and agreements it’s made in the past, it’s hard to be reassured by contradictory fuzzy moves and reassurances by third parties.

    It seems sensible to worry more about patents owned by those who make such overt aggressive moves than those who don’t. I’d be equally or more worried about a patent owned by, fr’instance, Eolas. Whereas I wouldn’t worry as much about one owned by, oh, Intel. Obviously there’s still a risk, but since – as you correctly point out – software patents are such a frickin’ minefield, one has to prioritize.

  9. er, obviously I meant qualitative, not quantitative. Oops.

  10. Mostly agreeing with Adam, though note that the ECMA-covered parts only mandate RAND terms on the runtime. There’s also a ‘promise’ of slippery wording to not sue for the ECMA parts. LWN was working on getting RAND license terms for other parts of the stack and, last I checked, they weren’t getting phone calls returned. The trick is it’s not worth it for Microsoft to disclose their patent allegations against open source implementations of their stack above the ECMA-covered parts until it has sufficient penetration to be worth the prosecutorial cost.

    The whole issue though is a red herring, IMHO. I’m more concerned with Microsoft’s legendary thought leaders having effective creative control over a significant part of the FLOSS ecosystem – it’s an opportunity cost problem since .NET may be ‘free’ but it’s not ‘open’ (from the perspective of community reciprocity). Putting the effort into JVM or Parrot would provide greater returns to the community.

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