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The open-source patent conundrum

OSI founder Bruce Perens cautions that the patent picture around open-source software is turning increasingly murky.

    The latest tactic in the software-patenting battle is the granting of patent rights to open-source developers. But are the grants really the equivalent of wolves in sheep's clothing?

    That's not the only movement on the patent front. The possible approval of a software-patenting measure in Europe this Wednesday could bring a barrage of lawsuits on both sides of the Atlantic, affecting proprietary software as well as the open-source community.

    Let's take a closer look.

    Sun Microsystems recently made software patents available for use by open-source developers. But its patent grant came with strings attached: The 1,600-some patents may only be used under Sun's Common Development and Distribution License, which is incompatible with the General Public License used on Linux.

    The irony here is that Sun's open-source license is derived from the same license used for Mozilla.

    So while claiming to make the patents available to open-source developers, Sun can sue folks who work on Linux rather than Solaris. The irony here is that Sun's open-source license is derived from the same license used for Mozilla.

    But Mozilla's developers have made most of their software available under the GPL, as well as under terms of their own license. If Sun wants to be a partner in the open-source community, then shutting out the Linux developers isn't a good start.

    Contrast that with IBM's recent patent grant. Big Blue made available patents for use under any of the more than 50 open-source licenses that were recognized by the Open-Source Initiative as of Jan. 11.

    The timing is no coincidence. IBM is one of the major forces lobbying for software patenting in Europe. It's possible that IBM's action may help convince European legislators that open source and software patenting are compatible. But IBM's 500 patent grant is tiny next to the 1,500 software patents the company files each year, the 30,000 software patents already granted by the European Patent Office and the hundreds of thousands that annually arise in the United States.

    According to the American Intellectual Property Law Association, software patent lawsuits come with a defense cost of about $3 million. Even before the case could be fully heard, a single patent suit would bankrupt a typical small or medium-size applications developer, let alone an open-source developer.

    Even before the case could be fully heard, a single patent suit would bankrupt a typical small or medium-size applications developer, let alone an open-source developer.

    IBM proposed the creation of a patent commons for open-source, which would probably be operated by Open Source Development Labs, an industry organization that has already dedicated a multimillion-dollar legal defense fund for open-source developers. But that sum could be eaten up by one or two patent lawsuits.

    OSDL's board and officer roster is dominated by the world's largest software patent holders, including the likes of IBM, Intel and Hewlett-Packard. Although those deep pockets can mitigate some of the financial burden that might arise, it's unreasonable to believe that the OSDL would work against software patenting in the interests of the broader open-source developer community.

    The most poorly represented party is not open source at all, but the community of small and medium-size proprietary software developers and e-businesses. Every significant software program and business Web site today infringes on one or more software patents granted in the United States. These businesses are just beginning to realize how much they have to lose.

    Every significant software program and business Web site today infringes on one or more software patents granted in the United States.

    Meanwhile, European businesses are being lulled into the belief that theirs is a less litigious society and that the patent suits won't arise. They wrongly assume that their patent office will hold to a much higher standard than the one that prevails in the United States. But the software patents already granted in Europe track the text of the U.S. versions, and the same litigious companies file patents on both sides of the Atlantic.

    Earlier this month, 61 members of the European Parliament filed a resolution asking to restart the software patent debate because, they said, the process had been tainted by politics. But appointed bureaucrats attempted an end-run around the elected representatives, twice scheduling motions that would enable software patent approval without a vote by the representatives. So far, Polish representatives have delayed the item, but final approval could come at a Feb. 2 meeting of JURI, the European Parliament's committee on legal affairs.

    Many holders of software patents have been holding back on lawsuits until the European software-patenting measure is approved, lest they provide examples against the very legislation they desire. If the legislation passes, expect a rash of lawsuits in both the United States and Europe.

    Europeans are starting to realize that the software patent battle can't be caricatured as a battle between open source and the rest of the world. They should support the members of the European Parliament in restarting the patent debate. And this time, they should make sure that they are involved.

    At least the Europeans get to have a debate. In the United States, software and business method patenting is the result of two court decisions. And Americans have yet to get started on legislation to solve the problem.