[Commons-Law] The open-source patent conundrum

[Ram]

The open-source patent conundrum

By Bruce Perens

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.


Source: CNet News 
(http://news.com.com/The+open-source+patent+conundrum/2010-1071_3-5557340.html )

 

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