August 11, 2005 4:00 AM PDT

Open-source allies go on patent offensive

SAN FRANCISCO--Two Linux allies are taking a leaf out of their opponents' book as they try to prevent software patents from putting a crimp in open source.

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.

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What's new:
Red Hat and OSDL have introduced separate efforts to secure and share patents that can be used in open-source software development.

Bottom line:
The moves mark a shift in the collaborative programming community, which is now using the existing intellectual property system to take on the threat of patent-infringement lawsuits.

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"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.

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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

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5 comments

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Patents vs. Patents
If you can't beat them, join them. Now the battle becomes a race. Truly, everyone has the right to protect themselves -- open source or proprietary. Hopefully, it stays as a way to protect and not to enforce licensing for gain (translate: extortion). Remember Eolas?
Posted by Mendz (519 comments )
Reply Link Flag
It's a good idea...
As soon as you have some "killer patents" in your portfolio, all those nice patents from Microsoft et al. will become worthless, as they will need to cross license with the Open Source community.

Wouldn't it be nice to own the "Windows" patent or the "Virtual memory" patent or the "server" patent or any other basic patent (not older than 20 years...).

You could simply stop the civilized world(wide web).
Posted by lucien64 (229 comments )
Link Flag
Education on patent law
In this case, people should be educated in patent law. You cannot patent "published" items as they are then considered "prior art".

Posting "intentive" programs in a publicly accessable database would discard the patent. It's very hard to manage by open source.
Posted by lucien64 (229 comments )
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It is not enough to publish
Publishing is insufficient. If the fact that something was published (i.e., that there is "prior art") is not known to vthe patent examiner who then grants a patent, it becomes very expensive to invalidate the patent, so even if it later becomes well known the the patent shouldn't have been granted, it is still risky to use it unless you have very deep pockets...
Posted by hadaso (468 comments )
Link Flag
Government Sanctioned Monopolies Vs. Innovation
People say that patents exist to provide companies that create things an opportunity to make money, without fear of others ripping off the idea and putting them out of business.

With software patents this changes. If Thomas Edison made the light bulb and patented it. (Which I think he did) Someone could have possibley found another way to make a light and that would have been legal.

With software patents it seems that a lot of the end results get restricted. I heard somewhere that Microsoft has a patent for a menu appearing from the bottom of the screen. That implies to me that even if my code is completely different if in the end what I do is the same Ill be litigated to the ground. I could extend this example to say providing support for a file format you didnt invent yourself, but the code to import it you wrote.

Theres another company that claimed rights to video offered via Internet (which I heard about a while back), even though so many other people toiled to build the technology.

What this boils down to is people Patenting mathematic equations, everyone with access to a compiler effectively being an inventor, and know way of knowing who has what restricted.

The system is completely overrun and only those with enough money to handle the accounting and legal research are able to benefit from the system.

Even those "little guys" who can best benefit from these software patents hardly benefit since theres almost no way to find out who is violating and its almost impossible to police and patrol. Especially for them.

So only the big guys with the patent aresenals really benefit and even most of them are only intrested in staving off others claims.

Thus we see big companies letting Linux use their patents and also why we dont see companies like Nvidia realeasing open source drivers, in fear of patent claims.

For the hundred thousandth time, get rid of software patents. Copyrights are good enough.
Posted by (27 comments )
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