Is Google's open-source advocacy a patent-busting scheme?

Open source means different things to different people. It can be a software development methodology, a distribution technique, or a marketing gimmick. Could it also be a way to minimize patent infringement damages?

Brian Prentice, a research vice president with Gartner's Emerging Trends and Technologies Group, speculates that it just might be. Google has been actively developing open-source alternatives to leading proprietary products, like Google Wave to compete with Microsoft Outlook and SharePoint. As Prentice indicates, Google has also been publicly advocating passage of the Patent Reform Act of 2009, which might have a lot to do with its open-source strategy.

Here's why.

The proposed legislation alters the way damages are calculated in infringement suits to be "calculated as the price of licensing a 'similar non-infringing substitute in the relative market.'" Now if that alternative is a free, open-source piece of software, then damages drop to zero, as Prentice notes:

Does that mean that free open source products can now be considered substitutes in a relative market? I've been trying to play the scenarios out in my head. If Google Wave, hypothetically, infringes a patent that IBM holds and they're found guilty of doing so, could they simply claim that the relative market value is zero because there are existing free OSS mail and IM solutions? Once Google Wave is shipping, can other organizations infringe on patents Microsoft holds relative to Exchange comfortable in the knowledge that Wave creates a zero dollar relative market value for collaboration?

This is incredibly insightful on Prentice's part, and amazingly shrewd if, in fact, Google is playing this game. It takes open-source advocacy to an entirely new, Sun T'zu-esque plane.

Martin Fink of Hewlett-Packard first started talking about the value of using open source to commoditize a competitor's core offering through open source back in his 2002 book "The Business and Economics of Open Source." But Prentice's idea takes Fink's argument and runs with it...at Usain Bolt speeds.

If true, The Register's question--"Is Google spending $106.5m to open source a codec?"--calls up a different response than the author of that article gives. Maybe $106 million is cheap compared to the cost of getting hit with video compression patent suits (from Microsoft, Apple, and others), if Google open source's On2's video compression codecs.

Google contributes to open source for a variety of reasons, not the least reason being that it recognizes open source is an efficient way to create community around its products. But perhaps Google has this more subtle, and sophisticated, reason as well?

Brilliant.

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