Open-source allies go on patent offensive

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.

"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

Though it's seeking reforms, Microsoft shows no signs of dropping its support for software patents overall. "How does a small company protect itself from a bigger competitor who can clone their ideas?" Kaefer said. Patents are a better legal mechanism than copyrights and trade secrets, he said.

But in reality, small companies are at a disadvantage when it comes to software patents, said Mark Webbink, Red Hat's legal counsel for intellectual-property matters. Instead, patents tend to be used by larger companies to cement their leadership position, he said, giving Microsoft as an example. Until 1994, Microsoft had filed fewer than 300 patent applications, Webbink said, but planned to file more than 3,000 applications in 2004.

Do patents protect or restrict?
"Their interest only came along once they had their dominant position, because patents gave them the ability to restrict competition. That's what patents are about: maintaining market share and preventing others from competing effectively," Webbink said.

He said Microsoft would have been in a very different position if companies had begun seeking software patents earlier. "What if Dan Bricklin had a patent on Viscalc, or Wordstar on PC word processors, or Harvard Graphics on presentation graphics? Where would (Microsoft) Word or Excel or PowerPoint be today? These patents would have only expired in the last five or six years," Webbink said. "For some of us, our word processors would still have been a pen or a pencil on a pad."

Kaefer disagreed with Webbink's contention. "Our first patent cross-licenses were signed in the early 1990s," he said. "I don't buy the Visicalc example."

But Webbink also noted that it costs at least $5,000 for a company to review just one patent to judge whether the patent is valid and whether the company's technology infringes it. When larger competitors have thousands of patents, it becomes prohibitively expensive to conduct that review.

There's another financial incentive for big companies to keep up with patent grabs: Applying for one costs merely $15,000, but defending a patent lawsuit typically costs millions of dollars.

Defending intellectual property rights is even expensive for Microsoft. At any given moment, it is typically defending itself against about three dozen patent infringement claims, Kaefer said.

Webbink did laud Microsoft's more cooperative tone, but in a LinuxWorld keynote address, he made two requests for Microsoft to demonstrate its goodwill in patent discussions. "First, make a public, written commitment they will not threaten individual developers with patent infringement claims." Second, Webbink said, "Leave customers out of this debate. If Microsoft has intellectual property that needs to be respected, come to the commercial companies. Come to me, come to Novell, come to our partners, but leave our customers out of the middle. It is the civil thing to do."

Kaefer said the requests were "interesting ideas we'd like to explore further," but preferred to interpret Red Hat's words more generally. "We like the fact that Red Hat has made those suggestions. That signals to us a desire to have a dialogue, and we're open to a dialogue."