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 recognise 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 licence, 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 last 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.
Since no vendor offers such protection, you must assume they recognise 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 defence against patent claims. Proprietary software users can expect their vendor to provide such legal defence because such legal costs are built into the price of the proprietary licence.
But the price of free and open-source software is zero, and there is no ability to build in the cost of patent infringement defence. What's more, companies that might offer indemnification still refuse to offer such protection.
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 licence-compliant patent licenses.
However, none of these are substitutes for the "one entity" comprehensive defence 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 licence 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.
Daniel 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.