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Alan Cox on software patents

Lawrence D'Oliveiro
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The August issue of Linux Format magazine has an interview with Alan
Cox. Man, his beard is almost as long as Richard Stallman's.

Anyway, he had some interesting things to say about patents:

The patents system is essentially a gambling machine for people with
no morals -- if you file enough dodgy lawsuits, eventually you'll win,
and you'll win so much money that it's worth playing the game. So
that's a fundamental problem with the patents system, but it's not a
problem with the idea of patents themselves, it's a problem with the

And their applicability to software:

When you come to software you've got all sorts of other problems,
because software is a literary work. A long time ago there was an
argument about whether software is a machine or a literary work.
You can't copyright a machine; you can patent ideas with it, but
everybody else can build the machine so long as they've got patent
licences. They can look at your machine and say, "I can see how to
do this without the patent, or after your patent has expired".
The decision at the time, which is actually written into things
like WIPO [the World Intellectual Property Organisation], was that
software is a literary work. So patents don't apply to literary works,
at least until the Americans got involved, and if you try and apply
patents to literary work all kinds of things start to go very, very
pear-shaped in the legal framework, because the author of a literary
work also has various other protections under WIPO that appear to
conflict with software being patentable. Because a third party has
no right to extract money essentially from publication of a literary
work, and that was something that was done to ensure that
governments couldn't bring all sorts of interesting tariffs. It all
gets really messy.

How companies are playing patent games:

LXF: And the current agreements over patents worldwide means
you get companies such as Microsoft being granted various software
patents in New Zealand, where they know no one is going to look
very carefully...
AC: Yes. That's not a software thing. People have been playing
games like that for hundreds of years. The whole history of the
steam engine was held up because the original creators of the steam
engine thought high-pressure steam was a dangerous evil and sort of
refused to grant rights to their patents to any of the high-pressure
steam people. High-pressure steam was the future, as it turns out,
but it was held up for almost 20 years.
The same has happened with IP version 6. You notice that everyone
is saying IP version 6 is this, is that, and there's all this research
software up there. No one at Cisco is releasing big IPv6 routers.
Not because there's no market demand, but because they want 20
years to have elapsed from the publication of the standard before
the product comes out -- because they know that there will be
hundreds of people who've had guesses at where the standard
would go and filed patents around it. And it's easier to let things
lapse for 20 years than fight the system.
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