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Re: [pgsql-hackers] Patent issues and 8.1

From: Josh Berkus <josh(at)agliodbs(dot)com>
To: pgsql-hackers(at)postgresql(dot)org
Subject: Re: [pgsql-hackers] Patent issues and 8.1
Date: 2005-01-27 17:51:12
Message-ID: 200501270951.12449.josh@agliodbs.com (view raw or flat)
Thread:
Lists: pgsql-hackers
Marc, Tom, Robert, Bruce, et al:

> Bruce is advocating waiting until the Patent has been Granted, instead of
> doing something about it now, when we know the patent is going through the
> system (and will likely get granted) ... a "reactive" vs "proactive"
> response to the problem.

No, we're reactive regardless.   Proactive would have been to investigate the 
ARC paper when it was published for outstanding patent applications, and 
again before feature freeze.   Or even to have considered the fact that when 
an IBM person publishes a paper on new technology, IBM probably has a patent 
on it ... they're the largest patent-holder in the world, after all.  It's a 
little late for that, and would probably not even have been a good idea, lest 
we let legal concerns paralyze development.

> Basically, after the patent is granted, we are going to scramble to get
> rid of the ARC stuff, instead of taking the time leadign up to the
> granting to get rid of it so that when granted, it isn't something we have
> to concern ourselves with ...

We don't *have* to do anything when the patent is granted.   When we *have* to 
do something is when IBM sends a cease-and-desist letter to a PostgreSQL 
user.  Not before.

Tangentally, but relevant: a few years ago I was facing a potential lawsuit 
from a customer who had changed management and was suing all their former 
vendors as a path out of bankruptcy.   Never having been sued before, I was 
inclined to panic.   I called a classmate of mine who was a litigation 
attorney, and retained his services, and asked what I should do.
	"First off, don't panic," he said.   "Have you been served yet?"
	"um, no"
	"Then don't worry about it.   You may not be served.  If you are served, you 
are likely to be able to get this dismissed.  The last thing you want to do 
is panic and try to bargain with them now; they'll see that you're a softie 
and go on the attack.  You've retained me, that's all you need to do now."
	(as it turned out, I was never served)

Take a look again at the posting by Nicholai -- someone with professional 
experience in patents.  Last I checked, nobody else on this list is a patent 
attorney, clerk, or IP litigation professional.

1) The patent may not be granted for another year.
2) The patent may never be granted.
3) When/if the patent is granted, its terms may have changed and we may no 
longer be infringing, *IF* we are now, which I have yet to see an 
*attorney's* opinion on.
4) IBM may put this patent in its set of GPL patents, since we are not the 
only OSS project using ARC. This would be a licensing headache for some of 
our users, but not a catastrophe.
5) Even if IBM does not OSS this patent, they may choose not to enforce it 
against us or other OSS projects since it would mean massively bad PR for 
them.

Given that we're planning on replacing/overhauling ARC anyway, I really don't 
see that we need to do more at this time.   Except maybe keep Neil's 
LRU-reversion patch somewhere handy in case we need it, and build a variant 
version and run it through tests at OSDL to see what it breaks (it would be 
good to do this anyway to see what, if anything, ARC is gaining us in terms 
of performance).

Now, if one of our commercial supporting companies is worried enough about 
this to do something -- such as funding a hacker for a 3-month intensive 
better-than-ARC development stint -- then let them step up to the plate.   
Many of our programmers are happy to accept commercial development dollars 
for what is a commercial concern.  Let's not steer development based on 
protecting what we think is protecting our commercial sponsors, when they 
haven't even asked us!

Heck, the idea of a pluggable memory manager tickles my funny bone, even 
though I don't think such a thing is possible.

Like *any* other piece of major software, we probably infringe on 50 different 
patents which we don't know about, held by a variety of parties.  If we let 
this one *potential* patent panic us into a response we may regret later -- 
such as derailing 8.1 development, or releasing an insufficiently tested new 
version -- then some other company will threaten us with patents with 
malicious intent to watch us jump and scramble again.

Attorneys have already said that Linux infringes several dozen outstanding 
patents.  Do you see Linus suddenly overhauling the kernel?   Dropping 
everthing and rushing a non-infringing, under-tested 2.8 to release?  No, you 
don't.

-- 
Josh Berkus
Aglio Database Solutions
San Francisco

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