OSDL patent commons gets chilly reception from the "outspoken"

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.