Rage against the patent machine, but is anybody listening?

Triggered by Sun's granting of access to 1600 patents -- but only if the resulting implementations are licensed under the recently Sun-authored, Open Source Initiative (OSI)-approved Community Development and Distribution License (CDDL, pronounced "cuddle") -- the squeakiest of the anti-patent wheels are letting their disappointment be known. Last week, the Public Patent Foundation's executive director Dan Ravicher wrote an open letter to Sun CEO Scott McNealy asking for answers to "serious questions."

This week, the equally outspoken director of software in the public interest Bruce Perens as well as Free Software Foundation president Richard Stallman have each penned treatises that summarize the recent grants made by both IBM and Sun, and that explore the dangers lurking at the intersection of patents and software.

Said Perens in his commentary: "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."

In characterizing the risks to the largest known surface of potential legal exposure (developers and users of customized software that's used by only one or a handful of entities), Stallman said in his article, "The danger of software patents is not limited to free software, which is why the opposition to software patents is not limited to free software developers. Everyone involved with computers, aside from the megacorporations, must expect to lose. For instance, proprietary software developers are much more likely to be the victims of patents than to have a chance to use patents for aggression. Although I don't think proprietary software is ethically legitimate, it is a fact that developers of proprietary software are in the same danger from patents, and many of them know it."

Out of my discussions with thought leaders Ravicher and long-time OSI general counsel Larry Rosen, there is little doubt that the patent system is broken. But those same thought leaders are also in agreement that it's not as simple as wiping out software patents altogether. They acknowledge that developers who make enormous personal and financial sacrifices -- only to emerge out of a bunker two or three years later with masterpieces that everybody wants -- are probably entitled to some sort of protection that makes their sacrifices worthwhile. Between the protection that should be afforded to that "inventor" and the American patent system as it stands today (as it applies to software and business methods) is a giant gray area for which no detailed correction proposal exists. In other words, not only aren't the answers easy, no one has stepped forward with the obvious answer.

Even worse, while the debate over patents on software has yet to conclude in other parts of the world, nobody who is empowered to reform the way patents are applied to software in the United States is paying attention. The last time anybody officially contemplated the issues was in 2002, when a parade of experts on the subject of software patents, such as the World Wide Web Consortium's Danny Weitzner, testified before the Department of Justice and the Federal Trade Commission on the matter. Since then, according to Ravicher, there have been relevant proposals by organizations such as the FTC and the National Acadamy of Sciences on how to deal with broader patent system malaises such as discerning between willful and non-willful infringements and what to do about both, but nothing that's specific to patents on software or the concerns expressed by advocates of open source such as Stallman and Perens.

Said Ravicher in a phone call today, "In terms of activity, there's nothing documented, but I've heard rumors of mumblings on the issue by some judges in the federal circuit court system and that some people at the United States Patent and Trademark Office (USPTO) are talking about it."

Ravicher's note about the federal court system wasn't just a throw away comment. "A lot of people want to blame the USPTO for the situation we're in, and that blame is misguided. The USPTO once had a much more conservative view of what matter was eligible for patents. But after some software developers who were denied patents took their cases to court and won, the USPTO's hands were tied. The court essentially ordered an expansion on the sort of subject matter that could be patented. The USPTO doesn't have the right to reject what the court tells it to do." Ravicher told me that because of the court's involvement, whatever the fix is, that fix doesn't necessarily have to be mandated by Congress. It can just as easily come from the court that's empowered to undo what it has done.

But the bottom line is that the patent system is what it is. Today, software developers-- including IBM, Sun, and Microsoft-- answer to their shareholders before they answer to anybody else and, to put it bluntly, the patent system remains a legal avenue for maintaining or improving shareholder value. As long as there's no official discussion taking place, we should have no illusions of patent holders going beyond some of the nice gestures we have so far seen (gestures that came with no risk to shareholder value, by the way) and fully abandoning their software patent portfolios any time soon. It would be the equivalent of expecting drivers on the German autobahn to start obeying some fictitious speed limit. Yeah, right.