Open source: The new patent regime

I was talking on Wednesday with Daniel Tunkelang, chief scientist for Endeca, about potential competition his company faces from open source (e.g., Lucene). In response, Tunkelang made an exceptionally interesting point, which I summarize here:

Open source drives innovation by making yesterday's technology a commodity, forcing proprietary vendors to innovate in order to justify their paychecks.

This got me thinking. Patents are short-term monopolies (20 years) designed to give inventors sufficient time in which to recoup their R&D costs and turn a profit. Open source turns the 20-year patent term into two years, if that. As a relentless, ever-growing competitor, open source keeps the proprietary world in check and on its toes to a degree that the industry has never before seen.

This is an exceptionally positive trend for customers. It means that not only will they save money on core technology that yesterday cost a significant amount, but they also benefit from the rush to innovate by proprietary (and open-source) vendors as they seek to deliver compelling, marketable value.

Today, nearly every software vendor faces increasingly stiff open-source competition. Had this been the case 20 years ago when Microsoft Office was developed, we would likely have far more innovation in office productivity technology than we do today. Ditto for Windows desktop, SAP's ERP system, etc.

Fortunately, we now have open source to shorten the shelf-life of complacency in proprietary software. Vendors may find it uncomfortable, but it's good for them and good for customers by accelerating innovation.

[parasubvert]

I generally agree with this, though I think two years is a bit optimistic for an open source commoditization effect. It's like 5 to 7 years in my experience -- though I'm talking about production usage , stable codebase, paid support , etc. , not just early adoption and hacking.

The risk is that this can be turned around: proprietary patents can be filed and used against open implementations unless they offer an olive branch patent license. I can see this happening in niche areas where proprietary license fees will be high and make up for the patent troll stigma.

[the_redistributor]

Yes, but what about the issue of prior art? Couldn't the open source version of the software be used as an argument by the patent attorney that it's not an original design concept? Just guessing here.

[Penguinisto]

It ain't just "yesterday" that Open Source is good at driving... almost all of the eye-candy and gee-whiz things that MSFT and Apple have added to their repetroires have come straight out of open-source projects: tabbed browsing, widgets (Vista puts its collection of them a "sidebar"), 3D desktop effects, journaling filesystems, and a list of things that would take way too much space to list in its entirety.

[mbenedict]

3D desktop effects did not come from open-source. For example, SGI (Irix) had 3D desktop effects long before any open-source implementation, primarily because 3D hardware was very expensive back then, and was generally only available on high-end graphical workstations. Now that I think about it, even hardware 2D support was rare in the open-source world back then (I remember needing to buy commercial XWindow servers for FreeBSD to get 2D acceleration).

Commercial journaling filesystems also long predated open-sourced ones. IBM's JFS had its full production release in 1990 as part of AIX. Veritas came out around the same time.

Open-source journaling filesystems weren't available until 10 years later. According to Wikipedia both ext3 and ReiserFS were introduced in 2001. But by then, every major commercial OS already had journaling (Solaris, AIX, HPUX, Digital, Irix, etc). Even Windows already transitioned to a journaled NTFS by then (with NTFS v3, introduced in 2000).

There were even earlier incarnations of journaling file systems in the commercial world, such as Xerox's Cedar FS which had journaling since the late 1980s, but these were more research-oriented than production-ready systems.

[Penguinisto]

Granted on Irix and JFS (forgot all about them...) but you still have to admit that there were many innovations taht came straight out of OSS.