Gregory Aharonian on Linux Kernel Patent dispute

[James Love <love@cptech.org>]

>From srctran@world.std.com Sun Nov 21 20:30:36 1999
Date: Sun, 21 Nov 1999 19:15:53 -0500 (EST)
From: Gregory Aharonian <srctran@world.std.com>
To: patent-news@world.std.com

Subject: PATNEWS: Linux gurus debate impact of crappy patent on Linux

!19991122  Linux gurus debate impact of crappy patent on Linux

    "Kernel Traffic" is a discussion list for those using and developing
Linux systems, I think currently hosted by the folks at Linuxcare.  Anyways,
a recent issue discussed the impact of a patent on the Linux kernel, and
Linux in general.  The discussion is an archetype for hundreds of similar
discussions that will occur in the future, especially in the business
methods and third world pharmaceuticals arenas, as the PTO continues to
ignore the proper handling of non-patent prior art, which inteferes with
its strategy of collecting as much issuance and maintenance fees from
its "customers" as possible.
    One comment below comes from an ex-examiner, who gets in a dig at some
of Microsoft's patenting tactics, which I suspect are shared by other
examiners at the PTO.


  [snip]

Greg Aharonian
Internet Patent News Service
                              ====================
   
Patent Infringement Or Prior Art In Linux Code 1999/11/02 - 06 (23 posts):
   
   Greg Maxwell gave a pointer to a search in the US Patent And Trademark
   Office, and added:
   
     "I thought you all might want to know: Almost all Linux kernels
     today are infringing on US patent #5,806,063. The infringing code
     is in linux/arch/i386/kernel/time.c:get_cmos_time. It deals with
     using 'windowing' to convert non-y2k-ok dates into 4 digit dates.
     Nevermind the fact that Linux had this code more then a
     year before the patent was applied for. :)
     How does the GPL look opon this, can I still distribute Linux
     since I don't agree with the patent? If I (as say a linux distro)
     license the patent (to cover my ass) could I still distribute
     Linux?"
       
   Richard Stallman replied, "I will ask our lawyer to double-check
   whether Linux constitutes prior art for the patent. If it does, it
   would be grounds to render the patent invalid. Could you tell me
   precisely what Linux does with the dates, and in what context, for
   what purpose? The lawyer may need to know those things."
   
   In response to Greg's question, "If I (as say a linux distro) license
   the patent (to cover my ass) could I still distribute Linux", Richard
   went on:
   
     "If the patent license you get covers redistribution by the people
     who get copies indirectly from you, that is consistent with the
     GPL. However, if the license does not cover this, if you would not
     be able to extend that permission to redistributors, you would not
     be able to distribute in a way that satisfies the GPL.
     The situation is the same whether you are distributing just Linux
     or a whole Linux-based GNU system.
     I don't think you need to worry about getting a license for this
     particular patent, though."
       
   Elsewhere, Joe Acosta said:
   
     "As a former Patent Examiner, I feel that I can shed some light
     on patents. Someting to keep in mind when looking at them is the
     claims. Claims are really the major part of a patent that have
     any relevance.
     Claims 1 and 11 are the independant claims and both of those
     claims specifically state "A method of processing dates in a
     database,..."
     Does the linux kernel use a database? (rhetorical q here) I think
     not .. thus this patent is irrelevant to what is being done in
     kernel code.
     However all the companies that are using 'pivit logic' with
     databases are at risk of possible infringement. Now even if you
     have proof of this logic in the linux kernel one must prove that
     it is obvious to use such logic within a database. Seeing as just
     about eveyone in the industry uses this kind of logic in there
     database apps, I'd say it was not rocket science but I am not an
     attourney 'I have legs' (LOL).

     Personally I am amazed at what people today call novel and want
     patent protection over.  Companies want to patent their data
     structures .. no joke a certain co in a certain northwest state was
     and probably still is trying this. I had to leave that place [PTO]
     cause my waders were not tall enough.
 
     So next patent you see read the claims carefully first and look
     for the independant claims as they are the 'meat'. The rest of
     the patent is there for clairification as to what the claims are
     referring to and for the legal b******t that goes into patents."
       
   Elsewhere, Gregory McLean suggested pointing out to the US Patent
   Office that Linux represents prior art, and getting the patent anulled
   on that basis. But Michael H. Warfield caught him by the sleeve and
   said:
   
     "Be careful there! You do NOT want to raise the issue with the PTO!
     Under their administrative rules, they can review the patent and
     only the patent hold is allowed to present "evidence" and
     challengers are not permitted any standing or any position to
     counter that evidence. If they "win" the review, which they often
     do, that fact is then admissible in court. At least one individual
     was known to try and get people to challenge him at the PTO
     knowing full well that he would lose in open court. After winning
     an administrative ruling, he then held the advantage in subsequent
     court challenges and had an improve chance of winning at court.
     You are generally better off challenging a patent in court FIRST
     before any PTO review."
       
   Elsewhere, Theodore Y. Ts'o suggested:
   
     "the best thing to do is ignore it. Let the patent holders try to
     sue us first, at which point it can be defeated pretty easily.
     It would be interesting for someone to set up a www.priorart.org
     web site, dedicated towards finding and exposing stupid USPTO
     tricks; the problem is that it would be a legal lightening rod,
     and it would have to be careful to disclaim that it was giving
     anything that might be construed as legal advice, or inducements
     to infringe patents (valid or otherwise); but just as a data
     repository of data that might or might not be accurate. Followups
     on this should go elsewhere, as it's not really a kernel issue."
       
   Elsewhere, Richard B. Johnson said:
   
     "If anybody's interested, I can provide source-code, dated in
     the first part of this decade (1991), that uses the obvious
     'windowing' mechanism to set the century byte of the CMOS chip.
     This is used in the Analogic 2030 arbitrary function generator.
     I wrote the BIOS. This source-code is proprietary, however, to
     support a petition against MD, it could certainly be referenced
     and possibly forced into evidence if a complaint ever went that
     far.
     Just because a patent was issued, it does not mean it's valid.
     If the patent holder is informed that your use predates his, and
     it becomes obvious that there was prior art not cited in the
     application, the patent holder will usually issue an 'unrestricted
     license' so that nobody has to show patent validity or otherwise."
       
   H. Peter Anvin added, "Actually, the windowing approach was used in
     PC-DOS 2.0 (1981-or-so): if you enter a two-digit date it is mapped
     on the 1980-2079 window."

-------------------------------
James Love 
Center for Study of Responsive Law | Consumer Project on Technology 
P.O. Box 19367, Washington, DC 20036 | http://www.cptech.org
Voice 202/387-8030 | Fax 202/234-5176 | love@cptech.org