Why patent consortia are a good thing

When the subject of patents and cross-patent consortia comes up everyone is a troll. They have to be because courts do not recognize the legal requirements of open source.

When the subject of patents and cross-patent consortia comes up everyone is a troll.

Pamela Jones is an IBM troll. Florian Mueller is a Microsoft troll. It must be true because their enemies say so.

IBM and Microsoft both have patent consortia. IBM's is organized as the Open Invention Network. Microsoft's is a contract, the one first signed by Novell and since by many others.

Both are important to readers of this blog because they both claim to protect Linux. IBM acted after the SCO case was filed. Microsoft acted after it made a corporate decision to enter the open source arena.

The purpose of both is also the same.

To minimize patent risk among those inside the consortia. Since both are open to new members (OIN now has 36 members) the costs of entry are seen as modest, a great value compared with going into a gun fight with only a pocket knife.

Neither is an absolute assurance you won't find yourself paying big bucks to patent attorneys. IBM looks set to spend many Euros on them in the coming months. That's the risk of a monopoly. Patents, like copyright, were seen as monopolies by the Founders.

Personally I find the whole thing wasteful. That's why I recently called software patents the John Roberts tax. If courts were clear -- if it were not possible to patent math or how you do business as the Founders intended -- none of this would be necessary.

Mueller calls OIN a "patent trap" and Groklaw's acolytes have their own names for Mueller, most of which can't be repeated on a family blog.

I think both sides are missing the point.

Absent legal clarity, or legislative action, this is the situation open source has to live with. It is a tax on innovation, which the Constitution sought to avoid. Of course, the Constitution also sought to avoid the direct election of Senators.

In his book The Most Powerful Idea in the World (above), William Rosen calls the ownership of ideas one of two key ingredients in bringing about the Industrial Revolution. The other, he writes, was the organization of workers into enterprises.

Open source is a shared enterprise. Its purpose is to organize really big ideas, ideas so big they can't advance under the control of any one company, no matter how big.

Today's software is something like the Egyptian pyramids we see today, or Machu Picchu as tourists see it today. That's not what its builders saw. That's what was underneath. It's a foundation.

Critics of open source like to talk about how it doesn't innovate. To some extent that's true. But that's not the point, my friend.

Without a sound foundation, software with billions of lines of code in it could never be written, or delivered bug-free at a profit to the world. It's an organizing principle that works, within the framework of a free society.

It deserves more respect from the legal profession. And perhaps from historians.