[PLUG] Open source drivers and patents (was: Congratulations to Carla)

[Keith Lofstrom]

On Tue, Mar 07, 2006 at 06:38:55AM -0800, Rich Shepard wrote:
>   Carla Schroder's article in Enterprise Working Planet is one of
>   the news picks on Groklaw.net.
...

Here's Carla's article:
http://www.enterprisenetworkingplanet.com/nethub/article.php/3589561


I can tell you exactly why there are so few open source hardware
drivers.  There is no big conspiracy, at least not the one you think.  
Carla, normally so very smart about such things, and Pam at Groklaw,
who ought to know - biffed it.

The general reason is patents.  No, not to protect the patents of the
manufacturer of the device in question, but the patents NOT owned by
the manufacturer.  

Most of us agree that many patents are stupid and should not have been
issued.  However, because of recent changes in the management of the
patent office, patent examiners are actually encouraged to approve
lousy patents - it means more revenue.  With the patent office being
treated by Congress like a cash cow, the office itself gets little of
the revenue gathered by fees.  Slightly increasing the approval rate,
and spending less time per patent, and hiring some really questionable
examiners at very low salaries, and outsourcing the examination 
process overseas, allows the patent office to stay in the black.  At
the cost of some really crappy patents.  The assumption is, let the
courts battle it out.  Patents not issued means less revenue.  Duh.

But the courts are part of the problem.  Before 1982, patent plaintiffs
would shop the country for the district court with the most favorable
track record - the rates of successful attacks on patents, or successful
defenses of them, varied by a factor of 5 from district to district.
In 1982, Congress created the CAFC, the Court of Appeals for the 
Federal Court, and tasked it with patent litigation.  Unsurprisingly,
this court became a revolving door agency for judges and staff, who
would shuttle back and forth to the major patent attorney offices.
Successful litigations protecting patents skyrocketed.  The result
was incentives to get even more bad patents, by parties that had no
intent to do anything with them but blackmail manufacturers with them.
The result is even more patents.

There are now something like 500 electrotechnology patents being
issued per week.  The vast majority are poisonous dreck, often 
repetitive, overly broad, and covering existing technology.  I have a
few patents - I have seen major players like Texas Instruments take a
thesaurus to my patents and apply for patents that describe the same
invention in different words.  If I use my own patented ideas, I risk
getting taken to court for violating a copy of my own patent.

So, with perhaps 100,000 active patents, averaging 20 pages each,
covering the design of subcircuits and architectures for integrated
circuits, many overlapping and repetitive, it is nearly impossible
to design a chip without violating hundreds or thousands of patents.
Further, if a manufacturer was stupid enough to engage a large staff
to read all these stupid patents, in an attempt design around all of
them, they now open themselves up to triple damages for "knowingly"
violating a patent.  Ignorance is less expensive.

Fortunately, *finding* these patent violations is very difficult in
many cases;  tearing down a chip covered with millions of transistors
and connected in a possibly obfuscated way is enormously expensive;
it costs more than the original design.  I can design chips ONLY because
the patent vultures have a very hard time seeing what I am doing.

Imagine you are a troll at a patent mill, with your half-dozen
stupid patents on some aspect of computer graphic circuit design. 
How are you going to find out if a manufacturer has violated your
stupid patent?  A teardown of every graphics chip on the market
would cost you tens of millions of dollars, with only a small
chance of finding "your" "invention" in any particular one.  Even
if you win an enormous court settlement, it will not compensate
you for all the teardowns that did not pan out.

---- Enter open source drivers ----

What if the trolls had a clear view of the inner workings of the
targetted chips - their architecture, their clever ideas, how to use it?  

That is what an open source driver is - a complete description of
how the chip is used, mandated to be open to everyone, including the
trolls.  Rather than engage in million dollar teardowns, the trolls
merely need to Google for Linux drivers.  A search process that used
to cost tens of millions of dollars now costs thousands.  So the
trolls can spend a few thousand on a bad patent, a few more thousand
on a search, and a few thousand on retaining a lawyer.  The litigation
itself will be expensive, but the bastards at CAFC will just hold
your arms while the trolls rape you.

Only the very largest manufacturers, with big legal departments, or
the very smallest, who are too small to be worth suing, can afford
to produce open source drivers.  And there are no "small guys" in
chip manufacturing.

With the legal environment like that, the surprising thing is that
there are any open source drivers at all.  They are often produced
by reverse engineering overseas, and can still subject manufacturers
to risk.  Reverse engineering in the US subjects the open source
driver writer to the tender mercies of the Digital Millenium Copyright
Act, AKA the "keep my patent violations secret" act.  

OK, so the situation sucks.  It will remain sucky as long as people
let their congresscritters pass stuff like that.  And citizens will
do that as long as some pinheaded technologists claim that "protecting
intellectual property" is a good thing, rather than a form of rape,
and we let them get away with it, rather than spit in their faces.

----

So Carla, give the manufacturers a break.  Many would like to
provide you with open source drivers, but they will get their asses
sued off if they do.  It is a sad state of affairs, but they did
not create it - our political representatives did.  If you want to
change the situation, turn the bastards out of office.  To do that,
you will have to convince a lot of your neighbors that "intellectual
property" is not only unnecessary to technological advance, but the
biggest barrier to it.  There are a lot of people to convince, and
there are a lot of liars with Big Media bullhorns opposing you. 
But there is also the fact of Linux, which is a pretty amazing
intellectual accomplishment given the IP crowd's claim that such
things can't happen without patents...

Keith

Refs:

For more information on how the patent office got so screwed up,
read "Innovation and Its Discontents" by Jaffe and Lerner, 2004
by Princeton University Press.  

The bit about patent trolling in open source drivers is from David
Livingston(?) at RedHat.

-- 
Keith Lofstrom          keithl at keithl.com         Voice (503)-520-1993
KLIC --- Keith Lofstrom Integrated Circuits --- "Your Ideas in Silicon"
Design Contracting in Bipolar and CMOS - Analog, Digital, and Scan ICs