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Patents not an open-and-shut case

In response to the April 16 Perspectives column by Steven J. Frank, "Will patents pillage open source?":

You bring to light what I believe is a serious consideration for users of open-source software, but you quickly extinguish this illumination by erroneously concluding that "the prospect that patents could doom open source grows ever more unlikely."

On the contrary, open source is far more vulnerable to patent claims than proprietary software, such as Microsoft's Windows operating system.

You also write: "To be sure, open-source software is as vulnerable to claims of intellectual-property infringement as any other category of software."

In principle, this is entirely correct, but in practice it is very misleading. One of the significant hurdles in asserting a U.S. patent is the development of a good-faith belief that the patent claims are infringed. (Lawyers refer to this as crossing the "Rule 11" threshold.) As a practical matter, it is very difficult to determine patent infringement when all you have is the executable code. The proprietary nature of Microsoft's Windows provides a substantial hurdle to patent holders who suspect their patent is being infringed. Not having the source code requires reverse engineering, and a great deal of guesswork.

On the other hand, open source means the source code is available to everyone. This obviates the task of reverse engineering, removes the guesswork and makes infringement analysis very nearly a trivial exercise. In this regard, the strength of open-source software--being feely available to everyone--is a substantial weakness.

There is also the issue of indemnification. Consider the present case of Lucent versus Dell Computer and Gateway. Microsoft is obliged to hold Dell and Gateway harmless for any infringement resulting from use of a licensed Microsoft product. (An assumption on my part, but seeing as Microsoft recently filed a countersuit against Lucent, it is reasonable to assume that Microsoft will have to assume financial liability for any judgment against Dell and Gateway.) If they were using Linux, Dell and Gateway would most likely have to stand alone and assume the financial risks themselves.

For every member of the World Wide Web Consortium who agrees to give its patent away royalty-free, there are more than likely several patent holders who are not members of W3C and who will properly and correctly seek compensation if their patents are used in Internet standards. It is probably impossible, at least very unlikely, that W3C can make a standard completely free of such patents.

For these reasons, and others, from a risk of patent-infringement perspective, open source presents a much larger risk for companies than using a proprietary package. At the end of the day, the license fee paid to Microsoft may turn out for many to be a lot less expensive.

Finally, I must object to the general tone of the article which (from my perspective) assumes that software patents are by their nature invalid and that any attempt to enforce patents is "pillaging" and that such efforts lead to "doom." The development of Internet standards is not simply a piecing together of known and obvious technologies. The increasing scope and complexity of these standards demand that developers create new and innovative (that is, legally patentable) solutions.

It is a disservice to the ingenuity of the open-source community to assume that every thing they do will be obvious and not patentable, and an insult to patent holders to characterize their legitimate licensing efforts as "pillaging."

Eric Stasik
Stockholm, Sweden