Open-source allies go on patent offensive

Red Hat and OSDL's new patent efforts take a different tack in trying to deter some intellectual-property attacks.

SAN FRANCISCO--Two Linux allies are taking a leaf out of their opponents' book as they try to prevent software patents from putting a crimp in open source.

Red Hat will finance outside programmers' efforts to obtain patents that may be used freely by open-source developers, the top Linux seller said Tuesday at the LinuxWorld Conference and Expo here. At the same time, the Open Source Developer Labs launched a patent commons project, which will provide a central list of patents that have been donated to the collaborative programming community.

The threat of patent-infringement lawsuits has long dogged collaborative development, leading some open-source programming advocates to turn against the patent system altogether. The initiatives signal a new willingness on the part of the open-source community to combat the threat of patent-infringement lawsuits more directly--and within the existing patent system.


What's new:
Red Hat and OSDL have introduced separate efforts to secure and share patents that can be used in open-source software development.

Bottom line:
The moves mark a shift in the collaborative programming community, which is now using the existing intellectual property system to take on the threat of patent-infringement lawsuits.

More stories on patents

"We're watching a groundswell of alternative ideas coming forward to try to counteract some of the patent terrorism that's coming up in industry," Steve Mills, general manager of IBM's software group, said in an interview.

The measure of success for those efforts will be if the pools of open-source patents grow large enough to lead computing industry companies to sign licensing agreements to share patents, as they typically do today with their large corporate rivals, said Eben Moglen, chairman of the Software Freedom Law Center, legal counsel for the Free Software Foundation and a Columbia law school professor.

"We will see how successful this is when we begin to negotiate cross-licenses that would otherwise inhibit innovation," Moglen said in an interview.

Moglen noted that technology companies are already easing up on their attitude toward intellectual property rights. "The behavior of businesses already shows their rethinking process is well along," he said.

A significant step in that rethinking process came a year ago at LinuxWorld, when IBM said it wouldn't take legal action if it found the Linux kernel infringed any of its own patents. Then, in January, Big Blue released 500 patents for any open-source use.

In addition, Red Hat has long pledged to let open-source programming projects tap into its patent-protected code. Novell, another Linux specialist, pledged to let its patents be used in open-source software's defense against legal attacks. Sun Microsystems released more than 1,600 patents for use with its open-source Solaris operating system and promised to allow their use in other open-source efforts. On top of this, cellular giant Nokia said its patents could be used in Linux.

Even intellectual-property powerhouses such as IBM agree many software patents shouldn't have been granted. Many patents are "spurious and, frankly, invalid," Big Blue's Mills said--an opinion made more interesting by the fact that it comes from a top executive at the largest patent holder in the computing industry.

But nobody in the open-source realm sees these corporate moves as a victory. After rejecting one proposed law to establish software patents in July, European regulators are now considering another. And even if cross-licensing deals should come to pass, that's a step far short of the outright elimination of software patents that many desire.

Microsoft and the status quo
Beyond all this, Microsoft remains a major worry. A Hewlett-Packard executive in 2002 warned that he believed the software giant was preparing a patent attack against open-source software, and those fears remain alive.

But Microsoft doesn't quail at the idea of a patent cross-licensing deal with an organization with an open-source patent pool--on the contrary, the company said it welcomes discussions that implicitly acknowledge the patent status quo.

"We would be open to discussing that," said David Kaefer, Microsoft's director of intellectual property licensing. "Patent

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