Blog Post

Can I patent this?

It seems Microsoft is up to their old bag of tricks again. This time stating Linux is violating more than 200 patents. Since Microsoft can’t beat Open Source in a popularity or software battle, they do what they do best, SUE! But who are they going to sue? It seems the kernel violates a ton of patents, as well as OpenOffice.org. I think I am going to just start suing as it seems easy as all hell these days to do so. I need to patent something, and do it quickly, how about the butterfly? Can I patent that and then tell Microsoft to kiss of and start using a grasshopper or something. Plus, don’t they know the penguin would kick the butterfly’s arse (does a butterfly even have one?).

On another note, I found out what it is like to not be 16 today. For Mother’s Day we went over to my brother’s house where he just got some big time basketball setup. Well I still suck at it, but it was fun, when I wasn’t laying down trying to catch my breath. Then we lifted some weights and right now my body feels like hell. Back, chest, arms, shoulders, legs, thighs and arse are all killing me. If you don’t hear from me in the next couple of days, you will know my body gave up and won’t let me crawl out of bed, or off the floor, whichever one I fall to first.

/me goes for the Advil!

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  • mpt

    “But who are they going to sue?”

    Presumably the distributors, starting with those that have distributed the most copies.

    “how about the butterfly? Can I patent that”

    No, because it’s not a process, it’s a trademark (and anyway they trademarked it before you did).

    In some fights, ridicule is an effective weapon. But probably not this one.

  • mpt

    Actually, read the original article. It’s very good, and it talks about the balance of extorting money from big customers vs. big distributors.

  • JT

    It seems the kernel violates a ton of patents, as well as OpenOffice.org. I think I am going to just start suing as it seems easy as all hell these days to do so.

    Should be easy enough…with a few disclaimers.
    1. I’m not a lawyer (or expert on the GPL for that matter) so I don’t know if I’m barking up the wrong tree here.
    2. I don’t know how reliable the information I got from Wikipedia is…
    3. You need to be the copyright holder of whatever program MS based their “Windows services for UNIX” on.

    That suite of programs allegedly contain GPL code. The programs are a part of Vista. Last time I checked, anything that contain GPL code need to use the GPL license. GPL also requires the source code to be available for anyone that wants it…and since Microsoft and Microsoft alone gets to see the Vista sourcecode, well that means that Microsoft for this non-lawyer seems to be violating the GPL license big time.

    As far as the patents go, I will consider it FUD until MS at least tries to prove the violations instead of asking that people take their word at face value. They haven’t got a leg to stand on until they disclose what patents Linux, OpenOffice, KDE, Gnome or whatever potentially infringes on.

    I wonder what GUI-patent infringements could possibly mean…that they’re both usually have the File-menu at the extreme left? That both have (or can have) icons for the home-directory? KDE’s start-menu? That both uses a mouse for navigation?

  • mpt

    Sorry to jump in again, but…

    You need to be the copyright holder of whatever program MS based their “Windows services for UNIX” on.

    Windows Services for Unix is a group of programs, some written by Microsoft, some based on OpenBSD and tweaked by Microsoft (as allowed under the BSD license), some written by Interix which was bought by Microsoft, and some copyrighted by the FSF. You can read about how careful Interix was in complying with the GPL, and how the FSF kept an eye on them. If you’re going to say that “Microsoft for this non-lawyer seems to be violating the GPL license big time”, when the FSF themselves apparently don’t think so, it’s a bit rich to be accusing other people of spreading FUD.

    I wonder what GUI-patent infringements could possibly mean…

    All your examples have prior art on the Macintosh, so they’re unlikely. Think more about things that Microsoft software has but Apple software doesn’t.

  • JT

    First, thanks for the link! I’m gonna read it later on.

    Secondly, I didn’t spread FUD as far as I’m concerned. I said that IF MS is doing this, then they’re violating a license. A conditional statement, which is miles away from saying MS/Linux/Apple/whatever infringes on our patents without substantiating it in one way or the other.

    Actually, I’m glad they’re not violating any license be it GPL or BSD. I still find it rather ironic and puzzling that Ballmer can state with a straight face that Linux’s stability is because it draws on the efforts of proprietary systems when their own system partially depends on the open source efforts.

    As far as the GUI is concerned, well. To be honest, I can’t think of anything in the Windows GUI that is exclusive to Windows or that Windows was first with. Okay, maybe one. The alt-tab key-combo, but apart from that there’s nothing really unique about the Windows GUI as far as I can see. It’s sometimes more polished than its competitors, but that’s hardly patentable (and is subject to personal taste anyway).

    I’m not ruling out that there are some infringements there, but I can’t see what they could possibly be. Feel free to enlighten me.

    Besides, even if there are infringements in that area, its hardly correct to say that Linux is infringing on those copyrights. If anything, it would be Gnome or KDE (to use just the two most common DE) that would be doing the infringing. A smart move to clump everything together though.

  • mpt

    So “I don’t know IF I’m barking up the wrong tree here” excuses any amount of rampant speculation. Right-o, then. 😉

    As for your puzzlment, Microsoft’s talking points have been fairly consistent the past few years: open source is part of the “software ecosystem”, and the best kind of open-source software is the kind that Microsoft can embed in their closed-source software. I profoundly disagree with that view, but it is not inherently contradictory.

    I’m not ruling out that there are some infringements there, but I can’t see what they could possibly be.

    Some possibilities:
    * the taskbar
    * horizontally rearrangable toolbars
    * notification icons
    * notification balloons
    * drag-and-drop rearrangement of menu items

    An interesting new example is Office 2007’s “Ribbon” interface design. Third-party developers can use it under a royalty-free license … a license that is incompatible with Free Software.

  • mpt

    So “I don’t know IF I’m barking up the wrong tree here” excuses any amount of rampant speculation. Right-o, then. 😉

    As for your puzzlment, Microsoft’s talking points have been fairly consistent the past few years: open source is part of the “software ecosystem”, and the best kind of open-source software is the kind that Microsoft can embed in their closed-source software. I profoundly disagree with that view, but it is not inherently contradictory.

    I’m not ruling out that there are some infringements there, but I can’t see what they could possibly be.

    Some possibilities:
    * the taskbar
    * horizontally rearrangable toolbars
    * notification icons
    * notification balloons
    * drag-and-drop rearrangement of menu items

    An interesting new example is Office 2007’s “Ribbon” interface design. Third-party developers can use it under a royalty-free license … a license that is incompatible with Free Software.

  • erik

    “I’m not ruling out that there are some infringements there, but I can’t see what they could possibly be. Feel free to enlighten me.”

    That’s hard to do without actually reading those hundreds of patent applications (they are public) through and evaluating them. Anyone sane will leave that to the lawyers, they have deserved it.

    I wouldn’t be too surprised if there were actual patent violations. What people seem to often misunderstand is that no idea is patentable – it is the application of an idea that is patentable. And as you patent an application the idea goes for free. Tumbling on the application can happen even by mistake, and the things that can be protected by a patent can seem non-important and can be overlooked easily. Furthermore it doesn’t matter who had the idea first. What matters is who patents it first, because it brings the idea to the public to be further developed by others into new ideas and applications. The only exception of this is the prior-art thing but it takes awful amount of work to overturn even one silly patent at court and get it to yourself.

    Sorry, I think I generalized too much. The bottom line is: The patent system is hard to understand. It’s quite possible that some open source zealots without even trying to understand how (legal) things work in real world can violate patents even without noticing it.

  • JT

    Yeah, I have no intention of reading through all of them either. I just wondered if you had an opinion/suggestion on what might be patented.

    I wouldn’t be surprised if there are some violations in there either, but that if there are they happened by mistake. Most people are, after all, only too aware of what kind of power Microsoft can wield (monetary if nothing else) and wouldn’t want to incur their wrath needlessly.

    True, the idea itself isn’t patentable. This is just speculation but I kinda wonder how a potential law suit would work out in practice. Let’s take the example of ntfs. I can see why MS wouldn’t like the idea of Linux being able to read and/or modify files and security-flags on an ntfs-partition. If that’s one of the potential infringements, is it really? As long as you don’t have access to Microsoft’s source for ntfs.sys and include that source (modified of course) into the kernel, it would be a new but compatible application of the same idea (and . At least that’s what it looks like to me. Actually, that would be rather like the wine project as far as the legal status is concerned.

    A complicated issue to be sure, which is why I’m very happy that I live in a country where you cannot patent software or is at least very hard to do so. Software patents are a patently bad idea IMO, and isn’t really practical for the only reason that considering how many patents there are and how many that might be granted in the future, it becomes harder and harder to pull off any bigger software project without accidentally violating at least one patent.

    That being said, I saw someone argue somewhere (sorry, can’t remember where) that open source by definition could not violate patents. The reasoning was that in order for it to be a violation, it would have to be by a competitive for-sale product, or the company selling it really. Commercial being the key-word. The reasoning sounds a little fishy to me, but if true it would mean that only the commercial-only distros would be in any danger.

    And finally, a link to an answer to the article that started this discussion. Rather goes back to my FUD comment but still:

    http://lmaugustin.typepad.com/lma/2007/05/its_time_for_mi.html

  • All your examples have prior art on the Macintosh, so they’re unlikely. Think more about things that Microsoft software has but Apple software doesn’t.

    Microsoft put a whole lot of work into accessibility before Apple. It was even possible to use Windows 3.1 without a mouse — it was entirely workable with a keyboard alone.

    On the other hand, you couldn’t use a Mac without a mouse. You couldn’t even Tab between buttons in those days.

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