Re: [OT] use of patented algorithms in the kernel ok or not?

[jw schultz <jw@pegasys.ws>]

On Sun, Dec 21, 2003 at 10:33:08AM +0000, Jamie Lokier wrote:
> There is a horrible dichotomy in this picture, and I'm not sure what
> to do about it.  Stopping innovating due to fear of potential patent
> litigation does not seem like a right thing to do.  Switching to a
> closed-source model because that removes one from liability does not
> seem like a right thing either.

Like copyright the onus of patent enforcement is on the
patent holder.  The key is to not do what would be
reasonably expected to infringe on a patent.
Reasonable that is in the assessment of the court.

If the patent holder believes something in the kernel to be
infringing the holder has to decide what is in it's best
interests.  First the holder will need to try to mitigate
harm by requesting the infringement be removed.  I have no
doubt anything reasonable assessed as infringing would be
removed quickly.  That would be the polite thing to do and
only a SCO would jump straight to filing for injunctions and
lawsuits.  I don't think it can seek damages of anyone
without first attempting to mitigate.

Whether they would file a lawsuit would have to be at least
partly a PR decision.  Is it good press to be suing people
perceived as doing charity work?  Then the bean counters
have their say.  How much money (shallow pockets) would they
be able to recover compared to the costs of litigation
although a un-enforced patent becomes an unenforcable patent
(see mitigation).  Finally, most patents are part of large
portfolios used for the purpose of cross-licensing to keep
small players out of the market.  The last thing they ever
want to have happen is to actually have their patents
examined in court for validity.

With regards to going after the Linux kernel there would
also be the risk that such a lawsuit would threaten other
portfolio holders.  I suspect Linux will soon be a no-man's
land for patent suits even without the OSL's patent terms.
IBM, SGI, and HP as well as consumer electronics
manufacturers and others have a lot of their futures
invested in Linux and that dependency will only grow with
time.  In a few years the US military and government as well
as other governments will be addicted to Linux, when that
happens the suits that show up at your office asking you not
to pursue the matter will not just be grey but also brown,
blue and black.


-- 
________________________________________________________________
	J.W. Schultz            Pegasystems Technologies
	email address:		jw@pegasys.ws

		Remember Cernan and Schmitt