[ffii] Unisys report warns against swpat

PILCH Hartmut phm at a2e.de
Thu Jul 25 16:37:32 CEST 2002



you can find a report written by Unisys for EC/IDA "Pooling Open Source
Software for administration" (or sth like that) mentions software patent
as a serious threat against IT sector at large.

You may find it contradictory that Unisys is named as a critic of software
patents and at the same time exploits its LZW-GIF patent.  Beside not
being contradictory at all (you can always criticise a system and take
advantage of it at the same time), the difference of opinion between legal
departments and programmers is pervasive and Unisys is probably no

Quote pp 54-55 :
"Conformity to patent law

Open source licenses (The GPL and other) are not governed by patent law
(they are governed by copyright as we have seen), but they are concerned by


The growing extension of software patentability, in US first, then on the
European practice, is becoming a major preoccupation for OSS providers:
The reason is that patents may protect not only the form, but the use of
algorithms, techniques and methods that are difficult to ignore or bypass.
Patents create few or no problems if the protected software is closely
incorporated, or embedded in a material device, making the whole « invented
material product" protected. On the other hand, if the software industry can
patent pure business methods that can be used in any programme for any
purpose and by any programmer (for example, to ensure interoperability:
import and export from their OSS programmes to proprietary standards),
damages to the programming activity (including open source) may be
important, and patent law will be distracted from its original protection
purpose to become a weapon in major industry actors hands:
·  Independent programmers and SMEs can hardly compete with major
players in the field, and have no resource to make « cross patenting » ;
·  By nature (availability of source code) OSS is more exposed to lawsuits.
Patents on protocols required for interoperability is a blocking factor when
trying to implement compatible non-proprietary solutions.


Samba (which is a GPLed software) provides file sharing interoperability
allowing Unix-like machines to act as server in a Microsoft environment,
using for that the Microsoft Common Internet File System (CIFS) protocol
(also known as a subset of the SMB Server Message Blocks protocol).
In March 2002, Microsoft introduced a new license type, combining licensing
of the CIFS technical standard and patent claims (as two patents where taken
concerning the CIFS): the "Royalty-Free CIFS Technical Reference License
Agreement",51 allowing third parties for free use of the CIFS protocol at the
condition that they do not use the GNU GPL and similar copylefted licenses
considered by Microsoft as "IPR Impairing License". Samba answered52 that
it was unaffected by the existence of these patents, because these covered an
obsolete section of the CIFS/SMB protocol. This answer, if verified, leaves
the patent problem intact for further interoperability issues, as ­ to ensure
interoperability ­ the dominant system protocols need to be emulated in
compatible solutions.

Another recent example of disturbing patent claim53 is related to
ebXML: The standard was launched in 1999 by a United Nations group
(OASIS) in order to promote Internet based trading, and in may 2000
IBM provided a substantial contribution (TPAML XML formats to
standardize trading partnership and electronic contracts). This was
incorporated into ebXML V 1.0 (May 2001) and adopted by partners
(RosettaNet, Open Travel Alliance etc.).  Two years after (March 2002)
IBM suddenly informed OASIS that its contribution was patented.  Here
also the fact IBM finally decided to offer the TPAML at "zero license
cost" leaves the potential legal issue intact and demonstrates the
difficulty to investigate on previous patents ­ even concerning a
world wide promoted standard.  These considerations (very briefly
summarized here) are the reasons of the strong opposition of Open
source communities towards any extension of software patentability, as
it is foreseen in the directive proposal of the European Commission
(February 20, 2002).  A practical consequence of software
patentability regarding the publication or the pooling of open source
software inside the POSS is the requirement to investigate on possible
patents, in order to avoid legal hassles and even higher costs. This
issue will be considered by anyone who publishes software (free or
not), but ­ due to the absence of cross patenting and of important
license incomes - will be less favourable to "small and medium
enterprises" and to free software developers.

Strange they didn't add another example concerning GIF/LZW ;)

Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation	     http://swpat.ffii.org/
120,000 signatures against software patents      http://www.noepatents.org/

More information about the News mailing list