Re: [pgsql-hackers] Patent issues and 8.1

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