Trend toward software patents threatens open-source movement

BOSTON'Despite its current vibrancy in the IT community, the future of open-source software is threatened by aggressive software patent-based litigation, warned Bruce Perens, one of the figureheads of the Linux open-source movement.

'We have no solution to the software patent problem,' Perens said, speaking at the LinuxWorld Conference and exposition held in Boston this week. Perens works as an author and strategic consultant for IT companies and has been instrumental in forming a number of open-source groups, including the Open Source Initiative and The Linux Standard Base.

For users in government and elsewhere, excessive litigation based on software patents could lead to increased software costs, limited innovation and even the chance of being taken to court.

Software companies increasingly are applying for patents on aspects of their applications. Traditionally, vendors have used copyright laws to protect their works. Patents help the inventors profit by granting them exclusive rights to the innovation, which they license out.

The danger in patents for open source developers is that they cannot duplicate the functionality of a patented feature. With a copyright, you can write your own version of the work, Perens said, but patents 'actually stop us from creating our own material.'

'Patents are tools of large companies' to limit competition, Perens said. A large company can bring a patent infringement suite against a smaller, competitive one. Such cases can cost $3 million or more to defend and could cripple smaller businesses.

Vendors also could sue companies that sell open-source solutions. The way patent laws are written, patent holders could even sue users, such as government agencies.

While almost all of the larger open-source-related companies are indemnifying customers against such lawsuits, small companies may not have a wellspring of cash to protect their customers, Perens said. As a result, companies in direct competition with open-source software, such as Microsoft Corp., could easily use their library of patents to put a chill on the entire open-source market.

The impact on users of open-source software extends beyond possible litigation, Perens said. The proliferation of software patents also will increase the cost of software, since companies must pay more for litigation insurance, and limit the input of innovation from smaller companies, Perens said.

Perens also took to task some large companies that have handed portions of their patent portfolios over to the open-source community, promising not to bring any legal action against open-source developers who use those ideas in their software. Last year, IBM set aside 500 patents that can be used by the open-source community. Earlier this year, Sun Microsystems Inc. opened 2,600 patents from its own portfolio.

These efforts, while laudable, are severely limited, Perens said. IBM applies for more than 1,500 patents a year, so 500 is a limited subset of IBM's holdings. And among the patents IBM turned over is one for a type of screw, which is useless for IT applications, Perens said. Sun's patents can only be used by people developing for Sun's own Open Solaris operating system, Perens said.

Perens suggested that open-source advocates take their concerns to Congress, to ask for a revision of laws regarding software patents.

Other speakers at LinuxWorld also voiced displeasure at the emergence of software patents.

'The world will be a better place without software patents,' said Martin Mickos, CEO of MySQL AB of Sweden, a vendor of open source database software, during his keynote speech.

About the Author

Joab Jackson is the senior technology editor for Government Computer News.

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