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Will software patents hinder open source?

In this article we see several views on the practice of patenting computer software:,289142,sid39_gci1059267,00.html


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 software itself! 


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 heard:


  • 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.


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