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Is Linux In Trouble, or Is It Just Something About East Texas?

Is Linux In Trouble, or Is It Just Something About East Texas?

"Software patents are wrong -- they do the opposite of what the constitution envisaged," said blogger Robert Pogson. "The idea was to give an inventor in the days of nuts and bolts a monopoly on some implementation of something to reward the investment of time and energy." When it comes to software, he said, the concept is "ridiculous."

By Katherine Noyes LinuxInsider ECT News Network
04/28/11 5:00 AM PT

Hardly a week goes by here in the Linux community without some company or other claiming that Linux and everyone who uses it is violating their patent -- or patents, more frequently.

Not uncommonly, it's Microsoft doing the suing. Most recently, however, it was Bedrock Computer Technologies, a company -- many would say "patent troll" instead -- that has apparently taken it upon itself to sue not just Google but also Yahoo, MySpace, Amazon, PayPal, AOL and more, all over "methods and apparatus for information storage and retrieval using a hashing technique with external chaining and on-the-fly removal of expired data."

Though it appears to maintain no official company website, a Google search on Bedrock's name turns up several years' worth of litigation, apparently all in the U.S. Court for the Eastern District of Texas (EDTX).

A 'Renegade Jurisdiction'?

In this most recent case -- once again, in Eastern Texas -- Bedrock won against Google, to the tune of US$5 million.

Some are saying that all of Linux is in trouble; others maintain it's just one more wacky, pro-patent decision coming out of the "renegade jurisdiction" of EDTX.

Which side is right? That's what Linux bloggers have been trying to figure out. It took no time at all for the topic to hit the top of the charts down at the blogosphere's Krazy Kernel Kafe -- not to mention on Slashdot and beyond.

'An Absolute Travesty'

"I expect Google to appeal," consultant and Slashdot blogger Gerhard Mack told Linux Girl. "This patent covers a well-known programming technique that goes back into the 1980s and possibly even the 1970s -- it's an absolute travesty that the patent office ever offered a patent on it."

In other words, "it's yet another glaring reason that patent reform is badly needed," Mack opined.

Indeed, "the silliness of East Texas and patents is disgusting," blogger Robert Pogson agreed. "Google should ignore that result and appeal to higher courts. That's the only way the patent trolls will be put in place until SCOTUS throws out software patents entirely."

'Software Patents Are Wrong'

The fact is, "USPTO is broken and needs to be reworked as well as fixing the patent laws," Pogson added.

"Software patents are wrong -- they do the opposite of what the constitution envisaged," he went on. "The idea was to give an inventor in the days of nuts and bolts a monopoly on some implementation of something to reward the investment of time and energy."

When it comes to software, however, the concept is "ridiculous," he opined. "It takes minutes to 'invent' a logical process/mathematics that will generate some software, and for that the patent trolls want a tax on as many millions of implementations spread by the web as possible."

Put another way, the effort and the reward are disproportionate, Pogson said.

"It's just maths," he concluded. "Once someone describes the objective of one of these patents, without disclosing any details, any graduate of programming 101 in high school can implement it. Hence there is a lack of creativity and prior art is in the programming manual. No need to invent anything for this kind of thing to happen."

'Death by a Thousand Cuts'

Slashdot blogger hairyfeet saw it differently.

"With the USPTO handing out software patents like lollipops, EVERYONE infringes," hairyfeet told Linux Girl. "This is just the beginning, and MSFT won't have to do a single thing to hurt Linux; now that Google and others with deep pockets are using it, the trolls WILL come out of the woodwork, and it will be a death by a thousand cuts."

As an alternative, "it really wouldn't be hard for Google and other corps to switch to BSD if need be," hairyfeet suggested. "That is even easier to lock up than TiVo-tricking Linux."

Meanwhile, "if the Linux Foundation doesn't find a way to fight back, then Linux may end up relegated to the backwaters of eastern Europe and other places that don't recognize software patents," he predicted.

No 'Yabba-Dabba-Doo'?

Slashdot blogger Barbara Hudson, who goes by "Tom" on the site, wasn't so sure.

"Despite the glee of some of the linux-haters, you won't be hearing much 'Yabba-dabba-doo!' around Bedrock any time soon," Hudson predicted.

"First, just reading the title of the patent, I think someone at the USPTO slipped up again," she explained. "It was filed in 1997, and yet databases have been using the same techniques decades before the patent, with hashing functions to locate data and removal of obsolete items in external storage.

"Even the final claim is clearly anticipated by database systems that use overflow buckets to store data with hash collisions," she pointed out.

'More Like Rubble'

It's also worth noting that "while $5 million judgment is a lot of money to you or me, it doesn't even pay the lawyers' bills in cases like these," Hudson noted. "It's one thing to have a patent, and another to actually make money with it, if even a jury in the most patent-troll-friendly district in the entire universe won't give you enough to cover your costs.

"This low award, combined with the pending appeal and the Red Hat demand for a declaratory judgment of non-infringement, make it harder to shake down others," she added. "There's a good reason why they're not suing OraKILL over Oracle Unbreakable Linux. Think Novell vs. SCO. Now multiply by 100, and get the popcorn and marshmallows."

Then, too, there's "the beauty of open source: 'show us the code and we'll work around it,'" Hudson said.

Finally, "the patent expires in January 2017," she pointed out. "Even if Bedrock does win all the appeals and other cases (and that's a big 'if'), that won't leave much time to hit up other Linux users."

So, for now, Hudson concluded, "Bedrock is looking more like rubble."


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