
Linus Torvalds: Software and Process Patents Don't Make Sense - Garbage
http://www.muktware.com/news/2866
======
jwcacces
What website is that? Did anyone else go to its homepage
(<http://www.muktware.com/>) and notice an unhealthy obsession with Linus
Torvalds and exclusive interviews?

~~~
ubasu
I think they are just parts of the same (long) interview.

~~~
cgarvey
No there's a definite creep factor going on with this site. The article page
has his image as the background of the website and in the logo...::shudder::

~~~
beernutz
If you check the rest of the site, you might notice that it is a very Linux
centric blog. Nothing wrong with that. Also I don't see his image in a logo
anywhere on the home page. Only on the Linus interview pages. Seems reasonable
to customize sections of a site.

~~~
cgarvey
I know his picture isn't in the logo on the homepage...thats why I said
"article page". I also never said it was wrong to have Linux-centric blog.

If I were Linus and I saw a blog with my picture as the background of the
website, all along the sidebar, and sitting above the blog logo, I'm sorry but
I'd be creeped out.

~~~
dupe123
I think he is just the background for articles related to that interview.
Although I do agree it is a little weird just how many times his face shows
just throughout the site.

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6ren
Linus Torvalds tends to favour patents, and has three himself.

> I think patents probably work better in certain areas than they do in ours.
> Software patents? No. Process patents? No. They just don't make sense.

It's not clear from the actual quote that he thinks both software and process
patents "don't make sense" as the title states (or just process patents). He
probably does, but it's not clear from this interview.

I think he's very insightful about patent and copyright litigation being
especially nasty from a legal perspective, because it's winner take all with
no middle ground.

Oh, and he think Java and the JVM are "horrible". So consider this polemic
approach when assessing his patent views.

------
andos
I recommend reading the whole interview, not just the patent part. They cover
a lot of topics and it's very good stuff.

~~~
ubasu
Here are the links:

<http://www.muktware.com/blogs/1721> (an older interview in full)

This one:

<http://www.muktware.com/news/2855>

<http://www.muktware.com/news/2857>

<http://www.muktware.com/news/2859>

<http://www.muktware.com/news/2860>

<http://www.muktware.com/news/2861>

<http://www.muktware.com/news/2862>

<http://www.muktware.com/news/2863>

<http://www.muktware.com/news/2864>

<http://www.muktware.com/news/2865>

Also, interesting portmanteau domain name - muktware means free (soft)ware in
Indian languages.

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tintin
Everything we create and think of is based on experiences (sight, smell,
feelings....). Therefore it's very strange to have patents. A patent is just a
smart mix of things that already exist. Software is always mixing existing
things using existing tools. So it's very difficult to have a 'smartness'
value for a software patent.

Fortunately Harrison Gray Dyar and Samuel Morse don't have all rights for
binary code...

~~~
alok-g
Patents are about ideas and inventions which must be "novel", "useful" and
"non-obvious". A smart mix of things that already exist would not be
patentable unless it is "inventive", "novel", useful" and "non-obvious". If it
is all of these, it should be patentable whether it is software or hardware.
(Note however that laws of physics, mathematical formulas, etc. are not
patentable.)

What's broken is not the concept of a patent, what's broken is its
implementation. Patent applications that do not satisfy the set criterion
often get accepted. "Non-obvious" often is equated to "currently non-existing"
even though it may be very obvious. (In fact, one of the ways to show non-
obviousness of an idea is to show non-existence of it in spite of the problem
being existing for long.) As you stated, it is difficult to have a "smartness"
value for a software (and I think even hardware) patent.

Another reason why the real-life implementation is broken is that people and
companies want it to work both ways based on whether it is helping them or
working against them. But nothing specific to software here, the same happens
for hardware too.

What needs fixing is the implementation, not the idea itself of the patents,
be it software or hardware.

Edit: Disclaimer: I am not a lawyer.

~~~
nogden
It would seem that one of the main arguments against software patents that is
thrown around is that "software is mathematics". As a software engineer
currently knee deep in learning Haskell, I believe that this argument carries
plenty of weight. However, when judging software patents, we shouldn't
overlook the reason for which patents themselves were originally invented.

I think the best description of a patent that I ever heard was:

    
    
       "A government granted use monopoly in exchange for full disclosure of how the invention works."
    

This is, in my opinion, not a bad idea. It promotes the sharing of knowledge,
whilst not depriving the inventor from the spoils of their work, but only if a
full, formal design of a working system is disclosed.

In software, patents are granted based upon a technical description of the
concept. But the requirement of a formal definition - which in the case of
software boils down to either a proven mathematical model, or some code that
implements the concept - is absent. Since written language is full of
ambiguity and uncertainty, it is very possible and regularly the case that
patents are granted on an idea that provides no concrete specification. As a
result, the disclosure part of the agreement is not satisfied.

~~~
alok-g
Let's look at this a bit more precisely.

True that mathematical formulas and laws of physics are not patentable.
However, a specific use of either to solve a specific problem is patentable
provided the three constraints (non-obviousness, usefulness and novelty) are
satisfied.

Software is not mathematics -- A computer science algorithm could arguably be,
but "software" is not. Software is a specific implementation using that
mathematics that sits onto your CD or hard-disk where "mathematics" cannot sit
(sure copyrightable representations of that mathematics do). And software gets
appropriately subject to copyright laws.

Applying software to solve a specific problem is no different than applying
hardware or mathematics to solve a specific problem. If those patent-ability
constraints are satisfied, there is nothing wrong with software patents "in
principle". Fixing the practice is another thing.

Second refutation I have comes from my personal experience. No, most of the
software developers are not mathematicians. Often far from that in practice.
Many don't even understand computer science (including myself partly). We can
still however make software inventions that satisfy the three constraints.

I know this topic remains debatable. And at least a part of the reason is that
the issues are often not correctly understood by people and the law-makers.
Add to that the pace at which laws are adjusted to changing practices in the
industry.

Edit: Disclaimer: I am not a lawyer.

------
drieddust
OT:mukt is a hindi word which means free.

~~~
dimmuborgir
Origin is the Sanskrit word 'mukti' meaning liberation.

------
alexchamberlain
Linus: "I don't actually know the details. I mean Java I really don't care
about. What a horrible language. What a horrible VM. So, I am like whatever,
you are barking about all this crap, go away. I don't care."

My respect for Linus just grew 10-fold!

~~~
praptak
_"My respect for Linus just grew 10-fold!"_

Why? He just bashes Java using strong language and not providing any
arguments. This _could_ get my respect if Java were some kind of sacred cow
that nobody dares criticize. This is not the case AFAIK.

~~~
alexchamberlain
I accept that this quote doesn't give his reasons. However, I have to agree
with him. My reasons are that Java is slow and bloated.

~~~
buster
Why do so many people say Java is slow? What's slow? In fact Java compares
fairly well against pretty much everything except C. It's a memory hog, but it
sure isn't slow, whatever that means.

~~~
nirbheek
Not against JavaScript or PyPy, from what I've seen.

~~~
buster
Like this one
[http://shootout.alioth.debian.org/u64/benchmark.php?test=all...](http://shootout.alioth.debian.org/u64/benchmark.php?test=all&lang=java&lang2=v8)
?

also interesting:

[http://shootout.alioth.debian.org/u64/which-programming-
lang...](http://shootout.alioth.debian.org/u64/which-programming-languages-
are-fastest.php)

------
dolbz
Well I didn't know that US patent cases can be presented to a jury. I don't
envy them on that considering the language these things are written in.

I wonder how many hours are spent 'training' the jury in the legalese required
to understand the case? And this would have to be done for each and every case
that has a jury!

~~~
adestefan
It's the judge's responsibility to explain the legal basis to the jury in the
form of jury instructions. These will usually be created in consultation with
the lawyers for both sides.

Trial by jury is the reason why East Texas is the court of choice for patent
claims. For some reason jury verdicts there seem to be biased towards the
patent holder.

I should also note that being a juror in a federal case sucks. The first issue
is that you're "on call" as a juror for 30 days instead of a day or two like
most counties/municipalities. The second part is the cases are usually boring.
People don't like to bring cases that they're likely to lose to a Federal
court.

~~~
tptacek
As 'tzs pointed out a few weeks ago, the East Texas issue is something that
the America Invents Act (the recent patent reform bill) actually addresses:

<http://news.ycombinator.com/item?id=3006925>

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desireco42
Don't you just love this quote: "I mean Java I really don't care about. What a
horrible language. What a horrible VM. So, I am like whatever, you are barking
about all this crap, go away. I don't care."

------
petegrif
"... and that's the reason you have to have a patent lawyer because the
language makes no sense. In US it’s technically English but it’s not really
English. It’s like using English words but there are different meanings to
them. There is a whole different set of rules about what things mean when they
do a patent application."

Well guess what - that is not unusual when everyday words migrate into a
technical area and the law is such an area. To complain about words having
specialist meanings in a specific subject area strikes me as naive.

~~~
simcop2387
While I certainly agree that it can seem naive, when it comes to law it is
taken to such an extreme that it's almost to the point that definition of "is"
isn't "is" anymore.

~~~
nobody3141592
In patents 'a' is plural.

Just try and write a patent in Word - it grammar highlights the whole
document!

------
traveldotto1
Totally agreed. Compete on products or results, not on legal process

~~~
petegrif
Wouldn't that be nice. Now consider the case of a pharmaceutical company that
has to spend hundreds of millions of dollars to develop a new drug and get it
past FDA. If there is no IP protection would you as the CEO of this company
spend that kind of money on innovating when the resultant drug could be copied
a week after it appears on the shelves? In this case you would be competing on
product alright - exactly the same product. But the copier has had no R&D cost
and can undercut you and put your offering out of business.

The issue is often framed in terms of all patents being bad, or all software
patents being bad but to anyone to gives the matter more than the kind of
superficial thought stemming from ideology the reality is rather more
complicated.

~~~
reissbaker
Pharmaceutical and other physical patents make sense and appear to work. But
arguing that software companies won't innovate without patents ignores the
fact that software companies did innovate without patents, for years. And
software patents obviously haven't been working: see Microsoft's patent on "if
not", among other things.

~~~
petegrif
You are absolutely correct. There are differences between the two industries.
The two key ones would seem to be that (a) the investment required in time and
money to create the software and its likely lifetime value are low compared
with a drug, and (b) the ease of difficulty with which the software may be
copied can vary a great deal. Compiled source code is harder to reengineer
than a drug. Server side code that is held as a trade secret, such as google's
search algorithms, is hard to recreate. So in these cases it is quite true
that there has been innotation (ignoring the fact google did have some IP
protection). But there are cases I can think of where it would be downright
foolish for a software company, particularly a small one, to invest
substantially without protection. The key characteristic is that the code
cannot be held secret and can be readily read and thereby copied. The key
point is that it really isn't very helpful to generalize to broadly about the
software industry.

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gdonelli
I am glad I am not alone in thinking I don't want to deal with java

------
freemarketteddy
A programmers opinion of Java goes a long way in showing what kind of a
programmer he/she really is!

------
jpdoctor
> _I think patents probably work better in certain areas than they do in ours.
> Software patents? No. Process patents? No. They just don't make sense._

Only if you ignore the fact that congress is composed of lawyers, who have a
large self-interest in preserving the current Byzantine system.

~~~
monochromatic
How many patent lawyers are there in Congress? I'd be surprised if it's more
than one or two.

~~~
jpdoctor
> How many patent lawyers are there in Congress?

How did you get "patent lawyers" from my statement of "lawyers"?

It doesn't take much to recognize that folks in the legal profession are going
to be pro-legal structure.

~~~
brlewis
If Congress wanted software patents to be legal, Congress would have made them
legal in 1972 or 1973. They wouldn't have waited around for the Federal
Circuit court to contradict previous Supreme Court opinions.

