Software Patents Stifle Open Source?
In reading this article at uk.builder, one might get the impression that Borland is pulling a SCO scorched earth manuver by maniacally raping and pillaging Open Source advocates over the use of a structure exception handling (SEH) technique that Borland happens to have a patent on. I find it particularly significant that neither the uk.builder reporter nor the Open Source advocates felt it necessary to obtain a comment from a Borland representative before airing their gripes.
Over on slashdot, this post posits that the reason GCC doesn’t support SEH is because of the Borland patent.
That’s rich, and typical of Slashdot. Let’s take a look at the time lines here: GCC has been around for centuries, without Windows-style SEH support. In fact, GCC’s implementation of C++ exception handling produces so much code bloat (50 to 150% larger exes) that nobody enables GCC exception handling support unless they’re absolutely desperate or completely clueless.
Next, Borland enters the Linux scene relatively recently, discovers that GCC can’t cut the mustard for SEH semantics and language interop found on other platforms (Windows) (let’s not harp on the code bloat issue), so Borland implements SEH on its own in its own compilers (with much less code bloat), at considerable expense (and no bloat). Since this represents a fairly unique nugget of technology, Borland patents its SEH technique and adds it to the Borland Defense Fund. (Remember that $100 million payment from Microsoft to Borland a few years ago? Borland didn’t start that fight, but we certainly finished it.)
Whether software patents are the root of all evil or merely a device in our intellectual economy is really beside the point. Patents suck, sure, but it’s the system that we’re given. You can choose to abstain on principle, and then be walked all over by those who use the system against you. Or, you can choose to defend yourself and use the system to make the schoolyard bullies regret bothering you.
The existance of a patent does not categorically mean all software based on similar ideas open or otherwise is null and void. Licensing IP to specific open source projects is not unheard of, even with no monetary interest. I believe IBM has granted IP rights for some of its compression patents to imaging standards bodies.
If you’re seeking reassurance that some artifact won’t be used to sabotage a project, just ring the doorbell and ask. There are much better ways to open a discussion than throwing a brick through the window.
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Posted by Danny Thorpe archive on May 12th, 2005 under Industry |
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May 13th, 2005 at 5:08 am
IBM even allowed use of lots of their patents, for opensource (OSI) softwares.
But alowing for 1 software is very very strange regarding the open source way of doing think. GCC will have problems if there is a fork and other free softwares won’t be able to reuse part of his code. It totaly goes against the target of free software.
May 13th, 2005 at 5:47 am
I believe Borland have wrong strategy on it’s market, I remember one time when we talk about Borland we understand it’s competitor of microsoft ,everything, it had it’s Office solution not complete but realy Borland Shutted down microsoft alongtime about programming languages, borland before micrsofot bring a solution to replace MSOLE in win3.1 , Microsoft never return to development solutions market until 1995-96,,
Borland have to look for many other projects, you cannot just stay and wait for programmers come and buy your solutions, you have to spread your market to many solutions, believe, Borland since 1983 is a lovely name for all developers and now I see borland stay in one step to work with programmers, developers, anyway, Opensource is nice but not for made money in Bilions! so!
Borland is a greate name but it’s a shop just have milkshake! :))
May 13th, 2005 at 5:51 am
This is a pure-software patent. Borland chose to be part of the problem rather than part of the solution.
I don’t have a problem with borland writing proprietary software, I do have a problem when their software patents stop others from writing software.
By patenting an algorithm borland have fenced off another piece of the mathematics, taking a bite from the public domain leaving less for everybody else.
The gcc and wine developers shouldn’t have to go cap in hand to every patent holder begging their patronage, protection and permission just to write original sofwtare like a serf in a medievel fiefdom.
Unfortunately IBM and Borland like F/OSS to be kept in it’s place, tolerated and patronised rather than treated as an equal.
Borland could have done many things rather than patent what should never be patented. They could have published, or they could have registered with any of the repositarys available. Borland instead chose to leave yet another mine in the already treacherous minefield in the way of every software developer who has to write a line of code.
May 13th, 2005 at 6:15 am
Have any of the commenters here actually read what Danny has written? You are immediately following the Slashdot approach: Borland holds a patent one something OSS people wanna use, so Borland is evil. Without ever contacting Borland! All they did was find out that Borland holds a patent, and Borland hasn’t said anything on the matter, it just holds the patent since 7 years.
They just start publishing articles with Linux rocks and Borland is bad. Wake up, the system is bad, but if Borland hadn’t patented it, someone else would have!
May 13th, 2005 at 6:29 am
Comments about proprietary developers contributing to open source make me recall this old posting by Gavriel State who once headed up Corel’s linux development effort.
http://linux.slashdot.org/article.pl?sid=04/04/02/011200&tid=132&tid=106
He recounts what they went through trying to get WP Office to build on linux. It provides an interesting perspective on the receptivity of the OS community to commercial development.
May 13th, 2005 at 7:06 am
anyway!
you remember me to ask : WHERE IS NEW KYLIX! realy we missed it,
in last 13years always I follow borland always we think when they will bring a new solution into market? … I feel danny surprised when we bring our nagging here, because realy borland is connected to our future because we have alot of code in delphi,Jbuilder, C++Builder…
May 13th, 2005 at 7:30 am
The reality is that Borland has failed to innovate recently; gone are the technical successes of the past (and the people who knew what they were doing too) and Delphi is stagnating and not being used enough.
Now Borland tries to become a bully too by its patent on this technique. The technique is not Borland’s and prior art existed too. So let’s call things like they are. Borland’s behaviour is inexcusable. Will this increase the number of people using Delphi or other Borland products?
I don’t think so. Better rename Borland as Bland.
Borland should give a free license to winelib since they need this technique. It’s not as if Borland will suffer any financial loss, and the benefit from the community will be good. On the other hand, if Borland takes the hard line.. well we have supported Borland so much in the past this is how we are treated. So we will start switching to other systems. How about Lazarus, anyone? Lazarus will replace Delphi.
May 13th, 2005 at 8:03 am
I want to address the issue of Borland not being innovative. In my mind, Borland is the innovator. Borland may not always get the credit for the technologies that are produced, but we see in other companies efforts that seem to gravitate toward what Borland has already proposed. I do not necessarily consider everything that Borland produces as "Proprietary". To me, everything that the industry produces as a whole is proprietary until it becomes widely accepted. After it becomes widely accepted, it then becomes a standard. Ask other programmers (specifically those that have been using Microsoft development tools) if they are able to leverage their investment in a language and move it to a new platform (e.g. Linux or .NET)? That, my friends, is a perfect example of the desire to be innovative. When I have attempted to explain this approach to other non-Delphi programmers, at first I get a "deer-in-the-headlights" stare. As I continue to explain, they seem to understand. Whether or not they truly understand I will never know, but I know that I can speak from experience.
May 13th, 2005 at 8:06 am
Hi Danny:
(and a BCC64 for Linux on a AMD64 :-))) )
Just a question: If compile WineLib with a Borland compiler there is no patent violation?
So now I only need a BCC32 for Linux
Saludos
Sebastian
May 13th, 2005 at 9:47 am
To those calling Borland that "bad guy" …
While there are some software patents that clearly should never have been granted, that does not invalidate all software patents. A proper patent protects a particular implementation of an idea, not the idea itself. Exception handling is an idea. That Borland has a patent on one implementation of EH does not prevent others from developing alternative EH implementations. Indeed, as Danny noted, gcc already implements EH, it’s just not as good an implementation.
Far from stifling progress, patents allow such implementations to become public *sooner* - available to anyone that wants it in return for a little profit or other considerations for the patent owner. Without patents, most owners of such solutions would keep them secret as long as possible so no-one else could benefit directly. There would be constant intellectual war with everyone trying to discover each others’ secrets, instead of civilized trade for mutual benefit and profit.
If you wish to give your great ideas and innovations away freely for the "public good", you are free to do so, no-one will stop you.
Patents (and copyrights) are merely a way to turn intellectual effort into tangible goods that can be traded. Thus, railing against patents, as such, is to claim that one should not be able to profit from one’s intellectual abilities. Carried to its logical conclusion, that would mean all programmers should only be paid according to their degree of physical labour - pressing keys - and not for their intellectual knowledge, efforts, or innovations.
May 13th, 2005 at 11:29 am
I asked Borland about this years ago and I was told a rough estimate on licensing costs that was far beyond what any free software project could pay. Being a Wine and ReactOS its not like I am flush with cash to try and pay licenses for every patent under the Sun and clearly not patents that site prior art such as this one.
May 13th, 2005 at 11:37 am
So the question remains - just what would Borland do if said Winelib folks "rang the doorbell"? I hear a lot of splatter here but no one seems to have addressed the original question. There is a lot of chatter about the angelic goodness/Demonic evilness of software patents - folks, it’s what we have - deal with it. Since the infrastructure is already in place, what would Borland do? Offer an inexpensive license, offer it for free for the exclusive use of Winlib or clutch it to their collective bosom in a display of miserlyness that shames the redoubtable Mr. Scrooge? I, for one, don’t really have a problem with software patents, it’s one of the ways that a company can make money - as I like Delphi and want Borland to stay solvent, if they have to charge a little for their intellectual property, so be it. I do - "Free as in Beer" software won’t pay my bills, it won’t pay theirs either. The comment by Wayne Niddery sums up the situation very nicely. I agree too with Danny - ask before pointing fingers and decrying bitterly, eh? One of the first signs of the downfall of a civilization is a lack of civility - a little politeness goes a long way.
May 13th, 2005 at 3:27 pm
"at considerable expense"
Can you quantify this expense? $100? $10,000?, $1,000,000?
Does this implementation truly pass the litmus of "non-trivial" or "non-obvious to those with ordinary skill in the field"?
Beyond the obvious and common stupidity of most software and *grimace* "business process" patents, what true "innovation" is the patent protecting? One of my biggest pet peeves is that many of the innovations that are claimed by many software patents are "natural" conclusions drawn from simple exercises in inductive or deductive logic. As a programmer, I do that every day. I have made thousands upon thousands of similar "innovations". Some more complex than others. Should I be patenting everything that I come up with that is nothing more than a well-considered solution to a problem specification? Should every other programmer do that, too? Pretty soon, we all could have massive patent portfolios that we all could constantly beat each other up with on a daily basis, instead of focusing on what our real jobs are: solving problems in code, BUILDING ON what those who came before us did.
Software patents are nothing more than a stupid power grab by those with money to protect it, and they need to go away. Either that, or everything that is invented by anyone needs to be naturally patented, just like natural copyrights. The playing field is not level.
Borland, take some of that $100mil "Defense Fund" and apply it to the fight for IP reform. Ultimately, it is in your own best interests as well as everyone else’s, ESPECIALLY your customers.
Shawn Stamps
Pascal/Delphi Developer since TP 1.0
May 14th, 2005 at 4:34 am
First and formemost, I’mm definitely against software patents. But in this situation, the question should be what is Borland’s policy on the software patents it owns and OSS. I believe IBM has a publicly stated policy (I think it’s "we won’t sue if it’s used in an OSS project"). What is Borland’s policy? Should every OSS developer who wants to use a Borland patented technique go and ring the bell? Not exactly practical, I would say. Maybe Borland will use its patent portfolio only as a defensive measure against a suit, but how am I supposed to know that?
May 14th, 2005 at 9:21 am
Well, you say that "patents suck". I agree. But what Borland should do about this? Maybe you guys should consider changing your patent policy - first of all - open your patents for open source projects, and then - lobby _against_ software patents. When I look to the past, I see Borland being _very_ innovating when software patents were not so widely used. Nowdays, you guys still make good products but you must always be careful not to break any patent (which is a "science-fiction" if you consider that deeply). So if there were no software patents it would be better for Borland, especially while you make tools for programmers. No software patents = more freedom for programmers = more innovation = more software on the market = more copies of Borland’s software sold
May 14th, 2005 at 12:22 pm
The solution here, if Borland really wants to be the good guy, is for Borland to commit, in a legally binding way, never to use a software patent except to defend itself against patent infringement suits. Your suggestion that open source projects simply "ring the doorbell" and ask permission misses the point, that shouldn’t be necessary if Borland genuinely sees software patents only as a defensive tool.
May 15th, 2005 at 1:59 am
This discussion about Borland being right or wrong makes me think about an unemployed individual knocking on a door for employment - gets a job at an entry level salary, runs up his own expenses and then blames his employer for not being able to pay his bills and demands more and more from his employer. I am an avid follower of Open Source and user of Delphi since V3. Let it be that those who have the initiative and employ the capital to turn the initiative into a asset, profit from that asset wherever they feel it be neccesary. Afterall, it is those profits that will see me buying the next version of Delphi.
May 18th, 2005 at 7:19 am
I think the trouble is simply the risk. You don’t want to spend years in adopting some technology, and then some owner of a patent changing his mind and trying to enforce it.
This goes independant of the fact if your a commercial entity or not.
Even if sb now chooses to simply trust Borland because of their big blue eyes, specially Open Source projects have very long term planning, and Borland might join into a fusion with some corp, get bought, sell a division etc etc.
A sofware patent is simply a liability, and IMHO you can’t blame GCC for simply avoiding it.
Of course you are right, and the tone of Slashdot is horrible and naive.
But I can understand GCCs decision to avoid it because of the patent
May 19th, 2005 at 4:09 am
I think that Borland should make it clear if it wants to use its patents against OSS or not. In this way it would not be necessary to "ring the doorbell" everytime one finds out that a certain technology is patented by Borland. From what you say I understand that Borland intends to use their patents to defend themselves, but if this is true why don’t they just say it clearly? No one in the OSS will ever sue Borland, they have NO means to do so nor intention, so why not doing like IBM? After all IBM does not seem to me a little and clueless company…
Bye,
Luca
May 19th, 2005 at 8:54 am
Which doorbell should I ring? Borland isn’t exactly small.
May 19th, 2005 at 10:50 am
Casper: Borland isn’t all that big, either. Any Borland employee should know who in the organization to forward business contact requests to.
Starting with a Chief Scientist would shorten the path by a few hops. ;>
May 20th, 2005 at 1:45 am
believe, Borland is alive because in programming it is a value!!!! ,,
alongtime genius and greate programmers like Danny whos never leave borland like some!!! other people save this company, … 
we are Borland Supporters!…
about danny, as I know him and other delphi members, atleast they have one of the best teams in the world!!! ,,, I believe our favorite company and our favorite tools (The Greate Delphi!!!) will win!!!!
Made in Borland Programmers!!!!
note: in my original country most of the people use delphi, programming with borland tools is a value!!! , there is no copyright at all! but here you see who is winner, in my country there is no competition in price! delphi is 1$ and VS and it’s vb (Visual Nothing=VB!!!) is the same! so! :)) my GF is a Delphi programmer! my people arround are delphi,
and I left my coutry alongtime but I remember I was only one I had one original copy of delphi! (3500$) ,, I always pay for this greate tools because I have all of my life from it! 
so! :)) I am not talk to emotional but realy when new delphi come I feel I born! realy I did anything possible in software world with this tools! NO LIMITION AT ALL!
Danny, if you are agree we can organize a new delphi member ship named (DELPHI LOVERS!!!) ,,,
no need for money support but some have to start it like you! ,,, by this we can organize more new ideas and have a new community….
another thing ! Danny! borland is greate, you sell just programming tools and you have too much benefits, we are small society and it is meaning value of the greate borland! Microsoft is big but they don’t have borland team.
May 23rd, 2005 at 1:39 pm
Hey, if the OSS need one implementation of that, why can’t they did one themselves ? Borland is not avoiding that right ?
So go and make one yourself
(well as you can see english is not my best feature)
May 25th, 2005 at 7:37 pm
It looks like an article written to show that patents are bad and using Borland as the bad guy du jour. So asking why they didn’t talk to Borland misses the point - too much risk of losing the article.
Although I do think there’s grounds for Borland to counter with a press release saying that they’re opening some/all their patents to the open source community. That would be helpful, and something of a poke in the eye for the slash-dotards.
June 1st, 2005 at 11:19 am
Simply:
Not asking Borland: Unforgivable
Patent on something this basic: UNFORGIVABLE
On a personal note:
And please make old tecnologies open source, BDE is still (and will be for a long time) hurting developers and consumers.
Honestly, you do not have the size to fix our own APIs so let the comunity help.
June 24th, 2005 at 6:19 am
Hi everybody; sorry for coming into this discussion so late.
Danny said: "I find it particularly significant that neither the uk.builder reporter nor the Open Source advocates felt it necessary to obtain a comment from a Borland representative before airing their gripes."
Maybe because I’m coming in late, I’m looking at a revised version of the original story, but what I see there today says "A Borland spokeswoman said it did not have sufficient information on the patent or the open source project to comment on the situation."
It sure sounds as if the reporter did try to get a comment, but failed. Hopefully Casper will have more luck.
June 24th, 2005 at 3:59 pm
Duncan:
The article was modified about a week after it was first posted.
-Danny
July 3rd, 2005 at 6:50 am
Now that we’re (unfortunately) close to having these software patents in the Europe/EEC, I like to add that the main problem are the Patent Offices.
An example:
At a certain point in history there were regular stores - No patent for that.
Then you got mailorder companies, where you chose from a catalog, filled in the order form, put it in the mailbox and waited for the postman to deliver - No patent for that.
Now you have internet shops working according to some vague described business methods - Patents granted!
I really cannot see the difference except for the means by which the order info is transmitted.
When the European Patent Office was founded, the participating countries set up some rules about what could or could NOT be patented.
Almost from the start the EPO itself has been trying to remove the restrictive rules.
Meanwhile they granted many ‘trivial’ patents which in fact were not allowed to be granted at all according to these rules.
So in fact it’s the patent system that has to be revised.
Borland is using the options the patent system is offering. On the other hand, they also can decide otherwise, which would be nice!
As a company you always have to keep in mind that software developpers, using and thus supporting your products, help to keep your company going.
Ellio
July 4th, 2005 at 5:45 am
A bit off the subject, but Borland appears to not just be stifling opensource development in Linux through software patents, but are indirectly stifling software development in Linux by sitting on what promised to be the best or practically only RAD development tool for Linux, that is Kylix. At the moment that leaves Lazarus as the alternative. If Borland chooses to abandon Linux developers than Linux developers must leave Borland behind.
August 6th, 2005 at 9:32 am
I have no problem with Borland having patents on a specific technology implementation. I don’t believe in general patents like having control of all SEH techniques. That’s the real problem. General patents should never be granted it stifles inovation.
September 27th, 2005 at 3:05 pm
Looong time since i last visited this blog (it was before D9 launch AFAIR)
And now i remember when all the community said "It is sad and clear, Kylix is dead" all the Borland employees told "No, no, not at all ! it is just moved aside until we have spare time, left from high-priority Delphi.NET"
But now i came here: http://www.borland.com/us/products/ide.html
…and found Kylix link pointing to C++ Builder page - something i can’t understand.
I came to http://www.borland.com/us/products/classic_products/index.html
…and i see Kylix is dead officially ?
Link to the shop points as to Pro and Ent editions but not to Open Edition and no Feature Matrix can be found.
Oooh! we can still offer Kylix 2
http://www.borland.ru/kylix/index.html
(nevermind. Moscow Borland office and site are target of sad jokes for years)
I wanted to find KYLIX on your blog - but cannot find Search - seems Blog engine misses searching.
And hence i wonder - where is the official declaration, that Kylix is ceased ?
And i wonder - what part of RTL and FreeCLX was covered by GPL ?
GPL prohibited patents, and since i expect (but do not know for sure) Kylix Open Edition revealed RTL sources with its share of SEH implementation - then Borland can not infringe SEH patent over other GPL soft ?
And last but not least - if Borland had really left Linux world (Kylix is dead, DotGNU and Mono alternative .Net engines were never considered by Delphi Team) - why to hold Kylix closed ? Dog on pile of straws
CLX was a bridge between VCL and cross-platform Qt.
Since You’re targeted on .NET and wxWindows - You’re not interested in Qt.
By opening Kylix with some license, allowing Your to absorb patches back, if you ever will want to resurrect Kylix, you could get some PR at least, while loosing nothing!
Or did Microsoft paid that $12 mln for suffocating Kylix as well, as for SEH ?
I’m disappointed a bit, that Borland killed Kylix bad was not brave enough to say it frankly
I wonder if some of the Borland employees can bring some light to this question.
September 27th, 2005 at 3:10 pm
$100 mln, not $12 - but that is not inportant, i guess.
Just for the record.