"Are software patents useful? That's pretty clearly not the case. Software patents are clearly a problem," OSDL Linux Summit here.said at the
Torvalds wasn't alone in his. He was joined in a panel discussion by Brian Behlendorf, a co-founder of the Apache Web server software, and , chairman of the Mozilla Foundation and the Open Source Applications Foundation.
Behlendorf said the way to rebut the argument that software patents provide an incentive for innovation and research investment is to imagine the world without them.
"If you could not patent software algorithms or ideas, how much of the money spent on writing software would go away? How much innovation would disappear? How much investment in that innovation would disappear? I don't think any would disappear," Behlendorf said.
Recent events have drawn attention to the intersecting realms of patents and open-source software.for use in open-source software, for use with its open-source Solaris operating system, and a Hewlett-Packard executive believed in 2002 that rival open-source projects with its patents. And the .
In recent months,its patent portfolio.
One fear is that a patent attack against an open-source programmer or customer could cripple the programming project--in particular, one without financial or legal resources. Linux, a well-protected project,, according to one study funded by a company that sells insurance to customers worried about such attacks.
But patents can serve as a defensive as well as an offensive weapon. When the SCO Group sued IBM, alleging that Big Blue moved Unix technology to Linux against the terms of a contract with SCO, IBM countersued with three cases of patent infringement.
, whom Torvalds describes as his "right-hand man" in maintaining Linux, sees that patent defense playing a role. "We might suffer from a patent attack in the future. I assume IBM might lead a counterattack to help defend us," Morton said in an interview after the panel discussion.
Kapor was alarmist about the situation, predicting that Microsoft will use its patent portfolio to attack open-source software. He believes tens of thousands of software patents never should have been granted in the first place, and he likened them to weapons of mass destruction.
"We have to be concerned about...the use of patent WMDs. That will be the last stand of Microsoft," Kapor said. "If totally pushed to the wall--because their business model no longer holds up in an era in which open-source is an economically superior way to produce software, and the customers understand it, and it's cheaper and more robust, and you've got the last monopolist standing--of course they're going to unleash the WMDs. How can they not?"
Microsoft didn't comment for this article.
But there might be change in the software patent works, Torvalds said.
"It's a problem the open-source community has been pretty aware of for the last five years. The good news is I think a lot of the proprietary vendors are starting to see it as a problem too," Torvalds said. "I'm hopeful that that may eventually cause the solution to come, although it probably takes take a long time."
Added Behlendorf said, "IBM's patent grant was a very good thing...Hopefully there will be more of those."
Stuart Cohen, chief executive of the Open Source Development Labs Linux consortium, said he believes others will follow IBM's move.
"We do think there will be a great number of companies following suit," Cohen said.
"We think the idea of a couple thousand patents from 10 companies is a great idea."