Sun's anti-climactic announcement Tuesday (they could take a few lessons from Apple here) for DTrace and the OpenSolaris release contained one minor surprise -- Sun's offer of 1,600 patents for use by the open source community, or at least those who are using OpenSolaris and Sun's CDDL.
While it's nice to see Sun and IBM trying to out-nice each other to prove their commitment to open source, the main problem remains: Software patents are an inherent threat to software innovation. So long as we have software patents, software innovation is threatened, no matter how many patents Sun and IBM make available. Sun and IBM have both acknowledged that the current patent system is a threat to innovation, but they're trying to score PR points while allowing the real problem to fester and grow.
The patent system was not designed to deal with software, and it shows. The patent grant system lacks the necessary safeguards to prevent granting overbroad and non-innovative "inventions" a patent. The lifespan of a patent is ridiculously long when one considers the speed of software development. Patenting software works entirely against promoting "the progress of science and useful arts" by discouraging innovation and progress. If Sun and IBM are serious about encouraging innovation and open source, they need to be working to get rid of software patents entirely, or at least reforming the system, rather than propping up a broken system by offering a token set of patents as a gesture of goodwill.
I do believe that Sun and IBM, at least their current management, are serious about open source. But, then again, so was Caldera before they became the litigation company known as SCO. Rather than trusting the good intentions of any organization, supporters of open source need to be working to fix the system -- regardless of assurances from IBM and Sun that they come in peace.