Software Patent of the Week: The Threat to Open Source Software

by on July 7, 2006 · 18 comments

Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. Open source advocate Bruce Parens makes my job easy this week by explaining what’s so troubling about last week’s patent infringement lawsuit against Red Hat:

The suit against Red Hat’s concerns the use of software “objects” to encapsulate a database record and make it easier to access, a technology called Object Relational Mapping or The ActiveRecord Pattern. That technology is used in the Hibernate software developed by jBoss, which Red Hat recently purchased. FireStar Software claims that it invented the technology, and that it is covered by its U.S. patent number 6,101,502. However, over the past two decades there has been much prior art for object-oriented databases, including TopLink, an object relational system developed in the early 90′s and now owned by Oracle, so it may be that the filers of FireStar’s patent made no invention.

There’s also the question of obviousness, whether the principles claimed in the patent would be obvious to a normally-skilled practitioner of the software art and thus not be an invention at all. The function of an object is to encapsulate data, and object-oriented programming has been known since the Simula language introduced it in 1967. The U.S. Supreme Court is currently reviewing another patent lawsuit in which the defense claims that there should be a much higher standard below which purported inventions would be considered obvious and thus not patentable. A higher standard of obviousness could help, but the real solution is to go back to the original intent of the Patent Office and stop granting patents on software.

Should FireStar prevail, or should Red Hat be forced to settle, Open Source use of the object-relational paradigm, including that in Hibernate, PHP, and Ruby on Rails, might become impossible. Recently RIM Systems, maker of the ubiquitous Blackberry, settled their patent case with NTP for half a billion dollars, after most of NTP’s patent claims had been overturned by the patent office! In that case, the patent office ruled the patents invalid after the judge rendered his verdict in the lawsuit, and the judge refused to reconsider. Justice seems to be hard to find where software patents are concerned.

Red Hat will probably stick with the FireStar case rather than settle, but how many of them can it sustain? It’s not possible to write a significant program today without using a principle covered by a current U.S. software patent. A study of patents possibly infringed within the Linux kernel found 283 of them in 2004. And that’s just one program out of the thousands that make up a Linux distribution.

I agree with his assessment of the patent in question. Relational databases and object-oriented technology are both more than 30 years old, and FireStar’s “invention” is just an obvious combination of the two. It should have been rejected on the grounds of both obviousness and prior art.

A lot of non-programmers seem puzzled by the fervor with which geeks hate software patents. I think this is a big part of the reason. The open source development model isn’t really capable of collecting patent royalties. Software patents threaten to embroil open source software developers in pointless litigation, and could ultimately make it impossible to develop certain categories of software using an open source model. That has arguably already happened with video playback software. We’d like to change the law before, say, the owner of one of the 283 software patents infringed by the Linux kernel tries to collect royalties from everyone in the world who uses a Linux computer.

  • http://www.blindmindseye.com MikeT

    What we need is a law that says that if you sue someone for a patent violation and it’s frivolous, you lose your patent. Even better. If you use the patents as part of a SLAPP-style lawsuit to shut down a small competitor, the competitor can claim some of your patents as part of the spoils.

  • http://www.blindmindseye.com MikeT

    What we need is a law that says that if you sue someone for a patent violation and it’s frivolous, you lose your patent. Even better. If you use the patents as part of a SLAPP-style lawsuit to shut down a small competitor, the competitor can claim some of your patents as part of the spoils.

  • Ned Ulbricht

    I think this is a big part of the reason.

    Wait a minute… your “this” reads to me as an ambiguous reference. In the preceding paragraph you’re talking about prior art and obviousness. But in the next sentence you’re talking about a problem with collecting royalties. So which one do you think is the “big part of the reason”?

  • http://www.techliberation.com/ Tim Lee

    I’m sorry, by “this” I meant Perens’s broad point about the threat software patents pose to free software. Thanks for pointing out the ambiguity.

  • Ned Ulbricht

    I think this is a big part of the reason.

    Wait a minute… your “this” reads to me as an ambiguous reference. In the preceding paragraph you’re talking about prior art and obviousness. But in the next sentence you’re talking about a problem with collecting royalties. So which one do you think is the “big part of the reason”?

  • http://www.techliberation.com/ Tim Lee

    I’m sorry, by “this” I meant Perens’s broad point about the threat software patents pose to free software. Thanks for pointing out the ambiguity.

  • Anonymous

    I know I’ve said this several times, but software patents are going to damage the software industry.

    The software patent system amounts to regulation of the software industry. I believe that fear of patent litation already hampers innovation in many markets. How is this good for the consumer? How is this good for anyone? I can’t even see how this is good for the patent holder?

    Everyone knows that competition opens markets. In the early days of 3D acceleration, such hardware was extremely expensive. For example, early systems from SGI cost hundreds of thousands of dollars. Why? Because the market was small. A company cannot price inexpensively in a small market. What happened when low-priced competition finally arrived in the mid-nineties in the form of companies like Rendition, 3DFx, and nVidia? Did the market explode or not?

    Software patents keep markets closed and prices high. The entire system of software patents reminds me of the state controlled market found in some [unsuccessful] countries. I am not a Republican and this is not a partisan issue to me. That said, the issue of software patents seems like a form of big government, where the power to regulate the industry is handed to the patent holder or to his/her lawyers. That’s a lovely idea. [Hold on while I throw up my lunch.]

  • Anonymous

    I know I’ve said this several times, but software patents are going to damage the software industry.

    The software patent system amounts to regulation of the software industry. I believe that fear of patent litation already hampers innovation in many markets. How is this good for the consumer? How is this good for anyone? I can’t even see how this is good for the patent holder?

    Everyone knows that competition opens markets. In the early days of 3D acceleration, such hardware was extremely expensive. For example, early systems from SGI cost hundreds of thousands of dollars. Why? Because the market was small. A company cannot price inexpensively in a small market. What happened when low-priced competition finally arrived in the mid-nineties in the form of companies like Rendition, 3DFx, and nVidia? Did the market explode or not?

    Software patents keep markets closed and prices high. The entire system of software patents reminds me of the state controlled market found in some [unsuccessful] countries. I am not a Republican and this is not a partisan issue to me. That said, the issue of software patents seems like a form of big government, where the power to regulate the industry is handed to the patent holder or to his/her lawyers. That’s a lovely idea. [Hold on while I throw up my lunch.]

  • Steve R.

    Cnet has an artilce titled “Newsmaker: Have patent, will sue”. Needless to say, I do not agree with the position of Paul Ryan the CEO of Acacia Technologies, but it is worth reading the views of the opposition.

  • Steve R.

    Cnet has an artilce titled “Newsmaker: Have patent, will sue”. Needless to say, I do not agree with the position of Paul Ryan the CEO of Acacia Technologies, but it is worth reading the views of the opposition.

  • http://mcgath.blogspot.com Gary McGath

    If encapsulating database records in objects is a patent violation, then all the code I’ve written this week is in violation. Why don’t they just say that writing software is illegal, rather than make it piecemeal impossible to write code legally?

  • http://mcgath.blogspot.com Gary McGath

    If encapsulating database records in objects is a patent violation, then all the code I’ve written this week is in violation. Why don’t they just say that writing software is illegal, rather than make it piecemeal impossible to write code legally?

  • Jerry Kew

    I can’t stand the use of Patenting for *obvious* stuff, and am fed up with that, however, we have developed a non-obvious, very interesting new interface for a market. We would like to get the benefit of that in one of our markets before the big boys simply copy it and flatten us, a patent seems to be the way to go to protect us *for a while*, however, I would be happy for it to be only 3-5 years, giving the chance for us to make a name with what we innovated, then unbundle it. That would help me get investors over the next year or so, knowing we had an “incubation window” for our idea.
    thoughts?
    J

  • Jerry Kew

    I can’t stand the use of Patenting for *obvious* stuff, and am fed up with that, however, we have developed a non-obvious, very interesting new interface for a market. We would like to get the benefit of that in one of our markets before the big boys simply copy it and flatten us, a patent seems to be the way to go to protect us *for a while*, however, I would be happy for it to be only 3-5 years, giving the chance for us to make a name with what we innovated, then unbundle it. That would help me get investors over the next year or so, knowing we had an “incubation window” for our idea.
    thoughts?
    J

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