Has FOSS lost the battle against patents

Software patents are a fact of life. Their abolition isn't achievable, writes the author of the FOSSPatents blog.

"Software patents are a fact of life. Their abolition isn't achievable."

The author of these words is not Larry Ellison, not Steve Jobs. It's Florian Mueller (right), and he wrote it on his FOSSPatents blog last week, shortly after I met with him in Munich.

Mueller is a passionate, knowledgeable, and fast-talking advocate, best known here for fighting the Sun-Oracle merger over the issue of mySQL. "FOSS must find ways to deal with patents, and in fact, it already has," he adds.

Curiously, when we met for dinner near Munich's Marienplatz, we were carrying the same phone, a Samsung Galaxy Si9000. (I took the picture at right with mine. Not bad for being in a dark alley.)

NOTE: Florian writes the photo was taken in the restaurant, not outside. My apologies. My memory was working from the section of the photo I used, not the whole photo.

He offers this as an example of his point. Samsung pays royalties for the Intellectual Property (IP) rights on its phones, including its Androids.

This isn't just true for Linux, but for Java as well, he writes. Oracle provides Java under the GPL, but its patent grant is among the most restrictive in the industry.

The context he was writing in is important.

As David Meyer of ZDNet UK writes, the Free Software Foundation Europe and the Business Software Association are engaged in a pitched battle over open standards, as a new European Interoperability Framework (EIF) is developed. Mueller's point was that fair, reasonable and non-discriminatory (FRAND) patent licenses offer a way out, a way for business to go forward.

Mueller says the reason the GPLv2 remains the standard open source contract is because of the GPLv3's stand against software patents. He goes back to the new license's birth, which came alongside the Microsoft-Novell agreement acknowledging Microsoft rights over Linux, and he quotes Richard Stallman on how the GPLv3 would forbid such deals.

"GPLv3 ultimately became very restrictive, but as a result, it's a big-time failure. No major open source project (such as Linux) has embraced it." Whatever your opinion it's hard to argue with his facts.

In terms of the EIF, which is the point at issue, Mueller wants a compromise. "I'm pro-FOSS and against the patentability of software, but I also know that FRAND is a good concept in principle," he writes today.

So if the war over patents is over and patents won, what now for open source?