The open source patent war

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The mechanism for dealing with unintentional infringement of software patents is cross-licensing. Robert Barr, the patent counsel for Cisco, told the hearings of the US Federal Trade Commission on "Competition and Intellectual Property Law and Policy in the Knowledge Based Economy" in 2002 that: "It makes more business sense to assume that, despite the fact that we do not copy other company's products, and despite the fact that we do not derive solutions to problems from the patent literature, we will be accused of patent infringement. The only practical response to this problem of unintentional and sometimes unavoidable patent infringement is to file hundreds of patents each year ourselves, so that we can have something to bring to the table in cross-licensing negotiations. In other words, the only rational response to the large number of patents in our field is to contribute to it."

Stockpiling the patent arsenal

This is a view with which Webbink concurs. "People in the software industry commonly talk about patents in cold war terms," he says, "of mutually assured destruction and of nuclear meltdown." No company is prepared to be the first to move, and the company that does is taking a risk of stellar proportions. So many companies have so many software patents covering so many areas of computer technology that if one pushes the button no-one can predict the outcome. One side effect of this phenomenon is that Linux companies have been compelled to join the fray.

In January 2005, IBM and Sun contributed over 2,000 patents to the free software community. In August 2005, the Open Source Development Labs (OSDL) announced the formation of a Patent Commons repository, and in November of the same year IBM, Novell, Philips, Red Hat, and Sony announced the formation of the Open Invention Network (OIN), "a company that has and will acquire patents and offer them royalty-free to promote Linux and spur innovation globally." The company asserts that "patents owned by the Open Invention Network will be available on a royalty-free basis to any company, institution or individual that agrees not to assert its patents against the Linux operating system or certain Linux-related applications."

Microsoft has followed a similar strategy during the last few years. Back in 1991, Bill Gates wrote: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete stand-still today."

In the same leaked Microsoft internal 'Challenges and Strategy' memo, Gates outlined a solution to the problem: "patenting as much as we can. A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors." By 2004 Microsoft was accumulating 3000 patents a year.

Shooting the Archduke

In the unlikely event that Microsoft does have usable patents that it believes are infringed by Linux and is confident that its software doesn't infringe the operating system patents of HP, IBM, Sun and SGI, there are three ways that the progress of open source software could be interrupted by patent infringement claims, by suing the customers, suing the developers, or suing the distributors. In each case the problems are far greater than the solution, and the outcome is unpredictable.

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