Get rid of software patents says leading open source law professor

The current patent system is dominated by the needs of pharma, not tech.
Written by Tom Foremski, Contributor

Eben Moglen, founding director of the Software Freedom Law Center, Wednesday called for reform of the US patent system as applied to software, because current laws are designed to protect the interests of pharmaceutical companies rather than technology companies.

Mr Moglen was speaking on a panel at the LinuxWorld trade show in San Francisco. He is one of the top lawyers in the open source movement.

"Software patents don't make much sense in the tech industry because markets move too fast. Yet the software patents put developers on guard that they could be vulnerable to future claims," said Mr Moglen.

He said that tech companies were having to register software patents as a defensive move, and that none could "unilaterally disarm" and stop filing for patents. And with potentially many rights holders in software, negotiating licenses becomes very difficult and harms innovation.

He said that many companies were having to bear the burden of IP laws that have been influenced by pharma, and that it was time for the tech industry to be freed of constraints created to serve the interests of just "the few."

The Software Freedom Law Center provides legal services to corporations and developers using open source software to ensure that their projects will not encounter a possible legal challenge.

Christine Martino, vice president of Hewlett-Packard's open source and Linux business, said HP would support a move for reform of the patent system in the US and internationally. Ms Martino, speaking at the same LinuxWorld panel, said, "As a global company and with global customers, we realize that this is an issue that needs to be addressed everywhere."

Another fellow panelist, Stuart Cohen, CEO of Open Source Development Labs, a sponsor of Linus Torvalds Linux kernel work, said that US patent laws affect other countries even if their own IP laws are weak. "Developers in other countries know that we live in a flat world, and that means that they could be vulnerable to legal challenges from IP owners in other countries," said Mr Cohen.

As Linux and other open source software grows in popularity, the community of tens of thousands of developers has built a strong legal infrastructure to protect their work from third-party challenge. The key to the success of Linux and open source has been the General Purpose License (GPL), an extremely well crafted legal document that that has so far, managed to repel or discourage any challenge.

However, the latest version of GPL has become controversial and has split the open source community, with Linus Torvalds its leading critic. And large IT vendors such as HP have said that the new GPL must have strong protection for proprietary technologies.

Mr Moglen said that the debates over the new GPL are good and are unlikely to stall an agreement. "I believe in the wisdom of crowds, we have a community of ten thousand that have a say in this."

He said he expected an agreement on the wording of the license by spring of 2007. But he also said that there would likely be two versions of the GPL, and that that was okay.

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