From mboxrd@z Thu Jan 1 00:00:00 1970 Return-Path: Received: (majordomo@vger.kernel.org) by vger.kernel.org via listexpand id S264123AbTLVAhR (ORCPT ); Sun, 21 Dec 2003 19:37:17 -0500 Received: (majordomo@vger.kernel.org) by vger.kernel.org id S264163AbTLVAhR (ORCPT ); Sun, 21 Dec 2003 19:37:17 -0500 Received: from vladimir.pegasys.ws ([64.220.160.58]:1548 "EHLO vladimir.pegasys.ws") by vger.kernel.org with ESMTP id S264123AbTLVAhP (ORCPT ); Sun, 21 Dec 2003 19:37:15 -0500 Date: Sun, 21 Dec 2003 16:37:08 -0800 From: jw schultz To: linux-kernel@vger.kernel.org Subject: Re: [OT] use of patented algorithms in the kernel ok or not? Message-ID: <20031222003708.GA24825@pegasys.ws> Mail-Followup-To: jw schultz , linux-kernel@vger.kernel.org References: <20031218231137.GA13652@gnu.org> <1071823624.5223.1.camel@laptop.fenrus.com> <20031221103308.GB3438@mail.shareable.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline In-Reply-To: <20031221103308.GB3438@mail.shareable.org> User-Agent: Mutt/1.3.27i X-Message-Flag: This message is may contain confidential information. Unauthorised disclosure will be prosecuted to the fullest extent of the law. Sender: linux-kernel-owner@vger.kernel.org X-Mailing-List: linux-kernel@vger.kernel.org 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