Perspective: Patent problems pester penguin

The patent system is in crisis--something the former Patent and Trademark Office director himself acknowledged just last year.

The system is supposed to encourage technological innovation. Instead, it rewards those who have the knowledge and resources to work it to their advantage. Although many are beginning to recognize the problem, not enough is being done to fix the broken system--to the detriment of software users.

Most of the free and open-source software community has long known all about this.

The GNU General Public License, the most widely adopted free and open-source software license, stated more than a decade ago that "any free program is threatened constantly by software patents." When the results of a comprehensive study of the Linux kernel for patent risk were announced this week, no one should have been shocked or surprised to learn this: Although no court-validated patents cover the Linux kernel, 283 issued patents may, if upheld as valid, cover it.

The response from some has been denial. They maintain there is no patent risk to Linux and that the sponsor of the study is spreading fear, uncertainty and doubt in order to profit. If they truly believed their denials, you would expect them to back their declarations up by offering patent indemnification for free.

As of yet, no vendor offers patent protection; IBM offers no indemnification at all.

The response from some has been denial. They maintain there is no patent risk to Linux.

Since no vendor offers such protection, you must assume they recognize the existence of some level of risk. But with so little available information about the extent of that risk, it is a guessing game, leaving the field open to those with an interest in spreading fear.

A study that quantifies the potential risk eliminates the guessing game by supplying users with specific information they can use to determine whether they are sufficiently prepared. Studying a threat does not create the risk; it only makes that risk easier to more accurately address. You would not accuse a weatherman of spreading fear for profit by warning of a 25 percent chance of showers and saying "tune in later for more information." Rather, such specific analysis helps those wishing to avoid or prepare for rain.

On the opposite extreme, others interpret the study's results to mean the sky is falling and Linux is doomed. Such a statement manifests little understanding of the patent system, under which the same patent risks exist for proprietary and free and open-source software alike. Users spooked by these results would gain no benefit from discarding Linux because switching to another form or software provider does not eliminate the patent risk.

However, what is unique to free and open-source software is that users are more likely to be called upon to provide their own legal defense against patent claims. Proprietary software users can expect their vendor to provide such legal defense because such legal costs are built into the price of the proprietary license.

But the price of free and open-source software is zero, and there is no ability to build in the cost of patent infringement defense. What's more, companies that might offer indemnification still refuse to offer such protection.

On the opposite extreme, others interpret the study's results to mean the sky is falling and Linux is doomed.

We need not ask whether there is a risk or whether the sky is falling. Instead, we need to know what can be done about the risk patents pose to free and open-source software. There are several answers, none of which are mutually exclusive.

The community can promote structural policy reform and it can stockpile prior art. It also should be prepared to design around patents and negotiate free and open-source software license-compliant patent licenses.

However, none of these are substitutes for the "one entity" comprehensive defense role that proprietary vendors fill. There is an opportunity for an entity to aggregate the community's risks under an insurance-like structure and make the risks financially predictable. In this way, open-source users can simply price in legal risks, just like proprietary software users do through their proprietary license fees.

Free and open-source software is not uniquely threatened by patents; but it is also not uniquely immune to the threat patents pose to all software. I, too, get upset when the weather forecaster tells me there is a chance of rain. However, I understand that rain is a natural part of the world I live in, and that moving will not necessarily make my weather any better. In the end, I enjoy the benefits of living where I want to live; and, if rain does come, I will be thankful for having been told to bring along my umbrella.

Biography
Dan Ravicher is a registered patent attorney, senior counsel to the Free Software Foundation, executive director of the Public Patent Foundation and outside patent counsel to Open Source Risk Management.

More Perspectives

[ehj]

Weather forecast for Europe

Umbrella-business may not have a market in Europe in the field of software if the EU software patent directive is passed with the European Parliament amendments:

"Member States shall ensure that the production, handling, processing, distribution and publication of information, in whatever form, can never constitute direct or indirect infringement of a patent, even when a technical apparatus is used for that purpose."

"Member states shall ensure that data processing is not considered to be a field of technology in the sense of patent law, and that innovations in the field of data processing are not considered to be inventions in the sense of patent law."

Together with proper definitions of what is technical (i.e. "statutory subject matter").

The european national parliaments have an uniqe chance to improve weather conditions back home if they ask the Dutch Council Presidency to withdraw the voting on the software patent directive this fall. They have good reasons to renegotiate, since the Council has ignored and rejected all the work of the European Parliament and the consultative organs of the EU without any justification.

<a class="jive-link-external" href="http://swpat.ffii.org/letters/cons0406/index.en.html" target="_newWindow">http://swpat.ffii.org/letters/cons0406/index.en.html</a>

[BrucePerens]

Dan's working for Open Source Risk Management

Dan is counsel for FSF and executive director of the Public Patent Foundation, but to be fair we should also mention that he has been retained by Open Source Risk Management, a company that insures against patent risk for Open Source users, to work on the problems mentioned in his editorial. I'm a member of the board of directors of that company.<p>Thanks<p><i>Bruce Perens</i>

[TurboG]

Thanks for the added info

But to be fair, isn't this the same Mr. Ravicher that's mentioned in the Forbes article found at this link:
<a class="jive-link-external" href="http://www.forbes.com/home/enterprisetech/2004/08/02/cz_dl_0802linux.html" target="_newWindow">http://www.forbes.com/home/enterprisetech/2004/08/02/cz_dl_0802linux.html</a> ?

Now, I don't know if I'm supposed to take Forbes word for it, or if I'm supposed to believe Mr. Ravicher's online bio at <a class="jive-link-external" href="http://www.pubpat.org/Board.htm" target="_newWindow">http://www.pubpat.org/Board.htm</a> but either way, this doesn't sound like someone who's truly concerned with the problems patents pose for the open source movement. Rather, it sounds to me like someone that's out to get a piece of the pie. The recipe for that pie? Simple, really. Make people scared, tell them that patents threaten Linux, and then sell them insurance. (Sounds a lot like how the mafia used to work, doesn't it? ;)

You can't have an independant opinion, regardless of what your experience may or may not be, and at the same time be associated with a company who's business it is to make money out of the opinions you express - and on top of that expect to be taken seriously.
Think of it as if a politician would campaign for a new law, that would make it illegal to sell white cars, and at the same time is engaged as a lead counsel for a company that sells black cars. You probably wouldn't take this guy very seriously, would you?

[gary.wilkinson]

working around patents

The problem with trying to work around patents is two fold. The first that some patents are so broad you can't work around them easily and secondly the complexity of trying to find out if a patent actually exists or is even valid. Generally you only find that out when the lawyers have finished fighting - 20 years down the line when the last appeal has finished.

IP Keiretsu

Bruce, why is it that when this topic is discussed in these articles, neither you nor members of your community mention the alternative where communities form IP keiretsu in the form of standards and specifications organizations with participation agreements that protect members jointly but still enable open implementation. The W3DC does this.

As many with experience in the software industry have noted, it is almost impossible to write code without stepping on someone's patent. That means that many of the formerly proprietary codebases now being released into open source have to be vetted or simply accepted as also risky. Unless steps are taken to indemnify or to form these IP keiretsu, the middle tier vendors who MUST indemnify as a result of RFP-driven contracting are accepting the majority of the risk and for them, open source is too risky given proprietary alternatives.

I agree the system is broken. I assert that the combinations of approaches such as risk management and IP keiretsu are here now to mitigate the situation until a more effective remedy such as international patent law reform (this is not just a US problem) is undertaken.

[ahzzmandius]

All software faces the same level of risk

If you haven't noticed the number of software AND hardware patent lawsuits lately then you must not be reading the news. Patent lawsuits have become a part of daily business life in the last few years. Just about EVERY software and hardware product out there infringes on some patent somewhere somehow.

Linux is no different in it's threat level than any other company. Do you really think that Big Blue will sit back and not defend it's new cash cow if it becomes threatened? Or RedHat? Or Novell?

Combined, these companies have plenty of firepower to defend Linux. The threat to linux via patents is no worse or better than the threat of patents to say Windows (Remember IE loss that MS sustained recently?)

This is why people are saying that it is FUD. Not because it doesn't exist, but rather, because it is nothing unique, new, or more dangerous than any of the threats to any other product out there.

[herrwitt]

patent disputes ???

Will MicroSoft quash LINUX in a storm of patent disputes ??? Somehow , in the (cyber)scheme of things , I feel that MS has broken , @ one time or another , nearly the total number of patents it now possesses ... The very sense of a 'spirit of innovation' , so well scripted by MicroSoft in its recent p.r. campaign , may find itself thwarted by this very fact ... To those who read this , who still possess an 'open mind' on the subject , may I (humbly) suggest that ... if we truely seek a truly dynamic cyber environment , filled with hyper creativity , then we need a vibrant , open source community as an integral part of it ... Else where will MicroSoft find all its 'innovative' ideas ???