Will software patents hinder open source?
In this article we see several views on the practice of patenting
There are interesting observations about patents here, and it is an
area that I find to be very confusing. The labyrinth of hundreds of
thousands of inter-related software patents and the shear complexity
and overlap with other patents, makes the law more complex than the
For me, I’m no lawyer, and I’m amused when I learn things about
copyright and patent law. Here are some “urban legends” that I have
- The word “Middleware” is the copyrighted
property of Techgnosis Inc.
- The term “Data Warehouse” is the property
of Bill Inmon, and cannot be used without permission
Patent law is even more amazing, with hundreds of thousands of
patented “inventions” being filed with the Patent office every year.
The spectre of what Microsoft might do with patents worries
Perens, and he thinks that Sun Microsystems is preparing to reap the
spoils of war. "I think that [Sun] has been positioning [itself] to
be the party you run to once the intellectual property assault on
Linux starts," Perens said. "I suspect that Sun knows something
about Microsoft's intellectual property plans that we don't know."
Even if a technology company tried to ensure that their products did
not violate patents, the complex mire of inter-related patents is
impossible to research, except for in the expensive and rarified
atmosphere of U.S. patent attorneys.
Perens pointed to a 2003 economic survey by the American
Intellectual Property Law Association that showed costs of as much
as $3 million to defend a patent-infringement lawsuit. "Now
obviously any open source project faced with that is just going to
have to just throw in the cards and settle under whatever terms they
can," he said.
Defending against frivolous patent lawsuits?
So, how to small developers continue to exists, when a “frivolous”
patent infringement lawsuit from a stronger competitor can put them
out-of-business, at will? Is software patent litigation an
even-more serious threat to open-source projects? Imagine if your
competitor could put you out-of-business, anytime they wanted, just
by filing an expensive patent challenge?
An acquaintance of mine has studied patent law, and he tells me that
it is not uncommon for any large company to protect themselves from
any patent law suit by collecting their own war chest of patents,
just in-case they ever face a software infringement lawsuit. Most
large software companies possess thousands of patents, and I hear
that’s it is relatively easy to defend against a patent challenge,
by counter-charging that the complaining party has violated dozens
of their patents. Of course, because these patent challenges might
take a Man-century to research and reconcile with other patents, the
costs become too great.