Intellectual Property Law Threatens Innovation

We've recently seen a rush of support for open source by major proprietary vendors. IBM said it will open-source its Cloudscape database.

Sun Microsystems previewed its Project Janus technology to allow Solaris to run Linux applications natively and allow customers to run Solaris and Linux applications side by side.

Hewlett-Packard said it will sell its first Linux notebook.

Unisys introduced its first Linux server.

And a slew of proprietary vendors, including Novell, Niku, Computer Associates, and BEA systems, are releasing their old applications as open source. That's mostly good news, but it does carry with it a certain risk.Proprietary vendors have their own agendas--serving their own profits and stockholders--and those agendas may conflict with the needs and goals of the open-source community.

As writers Charles Babcock and Larry Greenmeier report: "Linux and other open-source software customers might fear a train wreck, given that the intellectual-property agendas of some of the largest IT companies appear to be on a collision course."

Software patents are the issue; established companies have large portfolios of patents, and they use the patents to stifle competition from upstarts. Established companies have a hard time using patents as weapons against each other, because they all have big portfolios of patents and each company has patents that other companies need. As a result, companies will cross-license patents to each other--I'll let you use my intellectual property in X if you let me use the intellectual property in Y.

But patents can and are use to quash competition from startup and open-source developers. And "quash," in this case, is spelled "S-C-O," which has been attempting to use intellectual property law to extort from the open-source community. (SCO is using copyright rather than patent law, but the results being sought are the same.)

And the situation is likely to get worse. Open Source Risk Management Inc., a startup that offers insurance against patent and copyright violations, released a study that cites 283 possible patent claims that might be applied against Linux. It's more or less in line with other software projects of comparable size. And many of the Linux patents have never been tested in court.A third of the patents are owned by Hewlett-Packard, IBM, Novell, Oracle and other Linux backers. On the other hand, Microsoft owns 27 of the patents, and plans to accelerate patent filings, from about 2,000 this fiscal year to 3,000 next fiscal year.

Intellectual concerns are already starting to do damage. City officials in Munich asked for a delay in plans to migrate 14,000 PCs from Windows to Linux, while they investigate the state of software patents.

Vendors with strong Linux strategies, such as IBM, Red Hat and Novell, are attempting to mitigate the threat. IBM said it will never use Linux patents as a weapon. Red Hat said it maintains a portfolio of software patents to use for defensive purposes. We can expect both vendors--IBM and Red Hat--to keep their promises, and avoid using patents to attack other vendors, for as long as it's expedient and not a minute longer.

Software patents represent a significant threat to the Linux community. Fortunately, there are ways of fighting back. Insurance from OSRM is one; defending a patent lawsuit is expensive, averaging $3 million, and insurance can mitigate that cost significantly.

Also, the Linux community is taking matters into its own hands; Pamela Jones, author of the Groklawblog, is developing Grokline,a history of intellectual property in Unix, to help Linux developers mitigate intellectual property risks in Linux.0