[lug] Software patents

Rob Nagler nagler at bivio.biz
Sat May 30 20:25:23 MDT 2009

I don't think there's a need to comment on the rant.  I'll just write
some about my experience with IP law...

If you are a business, you can be sued for patents or not.  IP law is
very specialized.  You don't want to get in front of a judge to
discuss the merits of your case (either side).  Most cases end up
being settled out of court.  We recently settled out of court for that
reason.  I believe we would have won our case, but it's not belief
that counts.  Lawyers will be the first to tell you that if the judge
has a bad day, you could lose your case when you thought you had an
80% chance of winning.

Big companies rarely sue small companies for infringement of anything.
  It's just not worth their while unless there is serious money on the
table.  If a big company sues you (e.g. RIAA or MPAA), you had better
have very deep pockets or the EFF on your side.  It has nothing to do
with right or wrong or "justice".  It has to do with how well you can
follow the legal process.  Pay good lawyers and/or settle.

I was a long time member of the LPF.  I have never gotten a patent,
even when offered money by my employers to get one (my co-workers
applied for the patents, and got the cash, and were happier).  I run
an open source company.  I am technical director of an open source
non-profit.  I run a dot-com which is still in business, which runs a
proprietary web-app, but we probably could open source the app if it
was worth the time to do so.  I believe that open source will win, and
classical IP-oriented companies will fail (look at Sun).   Even The
Economist proclaimed this week that "Open-source software has won the

I don't think there's any substitute for hard work.  I spend as much
time as possible writing tests and code.   The tests are the hard
part, the code is easy.  Most companies (open source and IP-oriented)
don't think tests are worth their time.  I strongly disagree: Tests
are the only intellectual property that matters.  This little secret
keeps my companies under the radar and out of IP lawsuits (for the
most part :-).  We're just too small for anybody to bother with us,
and we can stay small because we have so many tests.  If we were
threatened with a patent lawsuit on a particular software technique
(not a business process, that's a different can of worms), we can
simply rewrite our code and use our "real IP" (the tests) to verify
that the new and different code works.

Every software problem can be solved through another layer of
indirection, even software problems created by IP lawsuits.


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