OSDL patent commons gets chilly reception from the "outspoken"

OSDL patent commons gets chilly reception from the "outspoken"

Summary: In case you missed it, Open Source Development Labs (OSDL) announced this week at LinuxWorld that it would be creating a patent commons as it looks to further bolster the open source community's resilience to the patent related issues that could hold it back.   Red Hat piled on by offering financial assistance to  open source developers who were seeking patents as long as those patents would be made available to the open source community.

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TOPICS: Patents
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In case you missed it, Open Source Development Labs (OSDL) announced this week at LinuxWorld that it would be creating a patent commons as it looks to further bolster the open source community's resilience to the patent related issues that could hold it back.   Red Hat piled on by offering financial assistance to  open source developers who were seeking patents as long as those patents would be made available to the open source community.

As a quick refresher, most open source licenses are licenses that apply to source code and are very much like copyrights.  They refer to what you can do with the source code.  However, to the extent that the source code in question is an implementation of a process that's patented (for example a business process), the license may not cover that.  In fact, it doesn't matter how you implement a patent.  It could be in the source code you use.  It could be in the way you connect vegetables.  Until the patent system is reformed, those implementations must be expressly allowed by the patent holder.  It's for this reason that some view certain bodies of open source code as potentially infringing on patents, thus leaving licensees of it (users, developers, distributors, etc.) vulnerable to patent infringement suits. 

To offset that risk, some of the more well known vendors that also happen to be patent holders (including IBM, Sun, and Red Hat) have been revolutionizing how their patents are made available on a royalty-free basis in such a way that those patents form a sort of defensive perimeter around those who practice them.  Earlier this year, IBM issued such a patent pledge with respect to 500 specific patents. Then, Sun granted licensees of open source software that conforms to the Common Development and Distribution License (the CDDL) access  to 1600 of its patents.   Not only does the typical pledge or grant involve royalty-free access, they also include a promise of defense should a practicer of those patents get sued by some other party for infringement.   There have been other similar moves, all of which have been met with both praise and criticism from various open source circles.  

Likewise, when OSDL jumped on board this week with its patent commons announcement, some of the more outspoken proponents of open source questioned the extent to which such a move really moves the ball forward.  Two of those individuals -- attorney Larry Rosen who literally wrote the book on open source licensing and Bruce Perens who earlier this summer joined SourceLabs as vice president of developer Relations and Policy -- were talking virtually the same language when I interviewed them separately.  Preaching to the same choir, both men questioned the need to donate patents to such a commons in the first place.  Characterizing a patent commons as a questionable effort given the alternatives (one of which is just publishing the patent to the public domain) Rosen said:

If by "patent commons" an inventor really means that "anyone can do anything with that invention," I recommend that he or she merely publish the invention and thereby allow it to pass into the public domain without the expense of a patent filing. Contributing an implementation of a software invention in the form of working code under an open source license to SourceForge or Apache or Linux any other published open source project is sufficient for publication purposes, at least under US patent law, thereby preventing anyone else from filing a patent on that invention. (There is an important timing problem relating to the US' "first to invent" system rather than everyone else's "first to file" system, but I'm ignoring that here.)... Don't waste your money on a patent filing. If you want to contribute your invention to the world for free, publish it!

Perens echoed the questionable worth of a commons, telling me:

The patents that would be put into a commons like this are coming from the wrong people. Those people already our friends and they're not likely to prosecute us.   In addition to that, the companies who donating patents are already cross-licensed with most of the other large patent holders.  So, the problem is, if we get in trouble with Microsoft or whoever Microsoft puts up in front of them as a proxy, IBM and HP already have a cross-license with that company. In a situation like that, the fact that their patents are in a pool won't make them useful for defensive purposes.

But in the same breath, Perens was careful not to criticize the OSDL.  "What should I say? Sure thanks! Let's not look a gift horse in the mouth.  OSDL means well" he told me.  "But,  this move is not going to be effective."  Perens also pointed out that the patents going into the pool don't really benefit the entire open source community, but rather just those entities that OSDL is associated with -- primarily Linux and open source code that's licensed under the GNU Public License (the GPL).  This of course is one of the bigger problems with open source.  While many on the outside view the open source community as one big free love movement, the truth is that it's heavily balkanized along the lines of dissimilar and non-interminglable licenses.  Both Perens and Rosen also seized the opportunity to say what it is the open source community really needs.  According to Perens, the one thing that's desperately needed is patent reform.  But he questions whether the OSDL could lead such an effort given how dependent the OSDL's board members are on their patent portfolios for revenues.  Said Perens:

This effort may distract from the legal reform we need.  Unfortunately, part of that is because if you look at OSDL's membership,  they are between a rock and hard place.  Most of OSDL's members  are patent holders who would profit from the tighter restrictions that come from patents in software.  IBM has the largest patent portfolio in the industry. HP is in top 10.  OSDL can try and take some half measures. But they can't address the problem the way it really needs to be addressed.   So, it's kind of weird.

As long as the patent system is what it is, Rosen has his own suggestion for where to apply resources (as opposed to establishing patent commons).  Said Rosen:

Patent attorneys helping open source can perhaps contribute more by helping us organize and search our existing prior art data bases to invalidate other companies' pesky patents rather than by filing a few more patent applications in order to give them away for free.

 

What's my take? Given how small the open source community is -- and what I mean by that is the number of people who are influencing its direction and who are really empowered to make changes -- just about any move on the patent front really requires that everyone preach to the same choir.  That hasn't been the case for as long as I've been following the intellectual property issues as they relate to open source and clearly, things are not changing.  The move by OSDL certainly comes across as being a nice gesture and the organization's heart may be in the right place.  But ultimately, another isolated defense mechanism -- in addition to the pledges, defense funds, indemnifications, new licenses like the CDDL that require patent grants, etc. -- is just more confusing to the market and is unlikely to have a noticeable impact on the overall situation.   The only way licensees of open source will end up exposed to less risk as a result of this or any other commons is if it simply encourages more patent holders to donate those patents to the public domain. And, as Rosen pointed out, there are other easier ways to do that.

Topic: Patents

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  • Patents are evil unless they are ours...

    Seems a strange argument to take into court.
    No_Ax_to_Grind
    • Patents are good unless they're from the OSS community... (nt)

      NT
      Anti_Zealot
    • EnTIREly predictable

      I wish you would surprise me once No_Ax and actually try to look at things from another perspective. We are not talking about ALL patents here - just software ones. Software is ALREADY copyrighted - and you are pretty fervent in your support of prosecution of infringers, so WHY does software ALSO get to be patented?
      Roger Ramjet
      • Because it's possible to write...

        ... different software that does the same function, it's necessary to patent the function in order to make the IP meaningful.

        An inventor may want to make money instead of providing ideas to others to implement as they will.
        Anton Philidor
        • Let's look at all of those patented ideas ...

          One click, using traceroutes to determine the location of an ip address, sending messages between remote objects, browser plugins, etc. They all involve patenting the use of a common or public domain technique to do what it was designed to do. Maybe you can come up with other innovative gems.
          Taz_z
          • The Microsoft Apple duel...

            ... might give another good example. Supposed to be over some aspects of the interface which also happen to be in use on iPod, oddly enough.

            Wonder if they include the button that says "On". Or activating the "On" button with a single instead of a double click of the mouse.

            Western civilization has rarely hung on a thinner thread than the question of which company gets to patent the "On" switch.

            The patenting of design features is one of the reasons patent lawyers are so well paid.
            That and the superhuman tolerance for boredom required, limiting entry into the field.

            As we like to say about p2p technology, the fact something can be misused doesn't mean it can't be valuable.
            Anton Philidor
        • Not neccessarily

          [Because it's possible to write...
          ... different software that does the same function, it's necessary to patent the function in order to make the IP meaningful.]

          In terms of a movie, you can re-make the movie with new actors - but it's obvious that you are infringing. With music, you can use the same tune or lyrics and change some stuff, and its been proven in court that infringers have to pay. In terms of software, if you copied Windoze - right down to the colors and menus, you SHOULD be able to prove infringement. ANYONE should be free to create their own windowing environment, but once you look and feel (and sound) the same - its infringement. Shouldn't that be enough?
          Roger Ramjet
          • Actually

            With copyright you can do those things. You can redo a movie that has been done already.

            For example you could do a Star Wars like movie over and over again. Just don't use the same dialog, characters, and such.

            you can do a song over and over again just don't use the same string of notes and lyrics.

            You can write a book on same topics too.

            Now imagine patenting the SCI_FI adventure movie, or the Mexican cookbook, or the country music, and so on.

            Look and feel also fall under trademark law not copyrights.

            Still look back in time. Did Microsoft need software patents to get their billions? No they did not. So why the need today?
            voska
      • Almost as predictable as your reply :-)

        Re-read the story again and see if you can understand what David said. Copyright does NOT protect the method/idea/concept, it protects (in a very minor way) the actual code used.

        But that isn't the point I was making at all. If your going to go before Congress and the courts to claim all software patents are evil, it makes you look foolish having a fistful of your own.
        No_Ax_to_Grind
        • There is a difference between foolish and prudent.

          First, a silly analogy. Just because the only clean pair of pants you have left is pink. Doesn't mean you go the day naked.

          Second, perhaps going before Congress with a fistful of patents whose protection you are willing to sacrifice in the name of innovation will be a compelling argument.

          Why enter a M.A.D. situation for patents? How is that rational? With software patents as they are, the system effectively says, "Alright, we're all infringers, but I won't sue you if you won't sue me." Honor among criminals?
          Zinoron
          • Ah, now your crying about the system.

            Sorry, I am not the designer.
            No_Ax_to_Grind
        • but you argue the opposite all the time

          I believe your argument went something like this:

          "If you're against patents obviously you don't have any and couldn't possibly understand"

          But now if they are against patents and have some of thier own that's a bad thing too.

          Could it be that you just don't like those disagreeing with you?
          voska
          • Confused again?

            Hey, I am all for open source using the system like everyone else, just don't whine to Congress or the courts about how a horrible tool it is you are using.
            No_Ax_to_Grind
    • True they're evil

      But are they a necessary evil? Or even a beneficial evil?

      (The following post is limited to software patents.)*

      Since you can't effectively search prior art, you can't knmow if your product is clear of infringements. There is an uncertainty hanging over your business that is unparalleled in any other field. Call that an evil. I do.

      But why must we have patents? The Constitution empowers the Executive to grant a monopoly in return for disclosure of an innovation, for the purpose of advancing or adding new industries and fuel for the economic engine.

      The U.S. patent system has been singularly successful. We have tales of Edison laboring endlessly in his lab, experimenting with various materials until he hit on the right one for the filament of his light bulb. Any pharmeceutical company must subject a new drug to extensive and expensive testing before they are permitted to bring it to market. No prudent businessperson would make that kind of investment if a competitor could just step in with zero research investment to develop and sell a similar product. Patents exist for the underlying purpose of inducing inventor to invest the capital to make advances for the economy. By the way, why do you think the PTO is in the Commerce Department?

      Can the argument be made that software patents have had the desired effect on the software industry, or that they were necesary in the first place? I for one have not seen the case. The marginal cost of most software innovation over that of simply production is close to zero. The time and cost of realizing an innovation in a product is, again, very slight. What software do we enjoy today that would not be available to us were it not for the patent?

      Again recall the killer apps, where a lot of time and effort had to be invested to make a usable advance, Visicalc and GUI, came along before software patenting. What could we argue would not be available on the market if the PTO hadn't given in, in a snit, to specific court cases? Where is the benefit to the public of the monopoly it grants to software applicants?

      An evil, yes. But a necessary one, I have my doubts.

      *I feel like biologists who must continually caution "intelligent design theorists" not to take them out of context.
      IT_User
  • Patents are the greatest threat to ISVs

    There is nothing in the horizon more threatening to ISVs than patents. They simply introduce legal uncertainty ? and hence potential unbearable costs for ISVs, and a broad range of other companies that do programming. It is an oversimplification to suggest that OSS alone, or mainly, is having issues with patents. Patents are not an OSS vs. proprietary software issue: patents are a large, established computer company vs. everyone else issue.
    P. Douglas
    • Not necessarily

      "...patents are a large, established computer company vs. everyone else issue."

      Patents can also be a small, one-person company against a large, established company.

      Carl Rapson
      rapson
      • Yes They Are

        [i]Patents can also be a small, one-person company against a large, established company.[/i]

        Maybe if that company has a significant focus on making money from patents, and gears itself towards that end. But then you are talking about probably less than 5% of small companies that write software ? if that many. The overwhelming majority of small companies cannot play the patent game, because it would divert too much resources from developers to lawyers, as the companies would have to seriously begin worrying about paying fees for the many patents they violate in their product development, and also unrealistically find funds to pursue ?abusers? of their patents, having far larger war chests and cunning lawyers.
        P. Douglas
        • But...

          "...as the companies would have to seriously begin worrying about paying fees for the many patents they violate in their product development, and also unrealistically find funds to pursue ?abusers? of their patents, having far larger war chests and cunning lawyers."

          But how is that different from copyrights? A company also has to avoid infringing on someone else's copyrights and enforce its own copyrights. Last time I checked, it takes just as many lawyers to sue someone over a copyright infringement as it does over a patent infringement. Just ask all the people who accuse Microsoft of "stealing" someone's copyrighted IP.

          If copyrighted IP can be protected, it would take lawyers and money to do so. If not, how can copyright be a viable alternative to patents?

          Carl Rapson
          rapson
          • Copyright and patent are two different animals

            [i]But how is that different from copyrights? A company also has to avoid infringing on someone else's copyrights and enforce its own copyrights. Last time I checked, it takes just as many lawyers to sue someone over a copyright infringement as it does over a patent infringement. Just ask all the people who accuse Microsoft of "stealing" someone's copyrighted IP.[/i]

            Things are very different with copyright. For someone to be guilty of copyright violation, that person would have to be guilty of stealing actual code ? not encroaching on someone else?s ideas. Also a person can cheaply protect his code via copyright, by merely mailing himself a copy of the code, and filing away the unopened Post Office stamped envelope. Does it cost a lot of money to pursue a copyright violator in court? Yes. But it is also generally much harder to use someone else?s code in your own, inappropriately, and most people, if they guard their code well won?t run into the issue.
            P. Douglas
          • Well then...

            "For someone to be guilty of copyright violation, that person would have to be guilty of stealing actual code ? not encroaching on someone else?s ideas."

            Then shouldn't people quit accusing Microsoft of "stealing" Apple's GUI for Windows? Or is there is evidence that actual Apple code was used?

            Carl Rapson
            rapson