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List:       opensolaris-mktg
Subject:    [osol-mktg] Open Source/OpenSolaris: patent commons coverage
From:       Terri.Molini () Sun ! COM (Terri Molini)
Date:       2005-08-12 16:22:41
Message-ID: 42FD2E97.9030701 () sun ! com
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OSDL patent commons gets chilly reception from the "ouspoken"
8/12/2005, David Berlind; zdnet

In case you missed it, Open Source Development Labs (OSDL) announced 
this week at LinuxWorld that it would be creating a patent commons as it 
looks to further bolster the open source community's resilience to the 
patent related issues that could hold it back. Red Hat piled on by 
offering financial assistance to  open source developers who were 
seeking patents as long as those patents would be made available to the 
open source community.

As a quick refresher, most open source licenses are licenses that apply 
to source code and are very much like copyrights. The refer to what you 
can do with the source code.  However, to the extent that the source 
code in question is an implementation of a process that's patented (for 
example a business process), the license may not cover that.  In fact, 
it doesn't matter how you implement a patent.  It could be in the source 
code you use.It could be in the way you connect vegetables.Until the 
patent system is reformed, those implementations must be expressly 
allowed by the patent holder.It's for this reason that some view certain 
bodies of open source code as potentially infringing on patents, thus 
leaving licensees of it (users, developers, distributors, etc.) 
vulnerable to patent infringement suits.

To offset that risk, some of the more well known vendors that also 
happen to be patent holders (including IBM, Sun, and Red Hat) have been 
revolutionizing how their patents are made available on a royalty-free 
basis in such a way that those patents form a sort of defensive 
perimeter around those who practice them.Earlier this year, IBM issued 
such a patent pledge with respect to 500 specific patents. Then, Sun 
granted licensees of open source software that conforms to the Common 
Development and Distribution License (the CDDL) accessto 1600 of its 
patents. Not only does the typical pledge or grant involve royalty-free 
access, they also include a promise of defense should a practicer of 
those patents get sued by some other party for infringement. There have 
been other similar moves, all of which have been met with both praise 
and criticism from various open source circles.

Likewise, when OSDL jumped on board this week with its patent commons 
announcement, some of the more outspoken proponents of open source 
questioned the extent to which such a move really moves the ball 
forward.Two of those individuals ? attorney Larry Rosen who literally 
wrote the book on open source licensing and Bruce Perens who earlier 
this summer joined SourceLabs as vice president of developer Relations 
and Policy ? were talking virtually the same language when I interviewed 
them separately.Preaching to the same choir, both men questioned the 
need to donate patents to such a commons in the first 
place.Characterizing a patent commons as a questionable effort given the 
alternatives (one of which is just publishing the patent to the public 
domain) Rosen said:

If by "patent commons" an inventor really means that "anyone can do 
anything with that invention," I recommend that he or she merely publish 
the invention and thereby allow it to pass into the public domain 
without the expense of a patent filing. Contributing an implementation 
of a software invention in the form of working code under an open source 
license to SourceForge or Apache or Linux any other published open 
source project is sufficient for publication purposes, at least under US 
patent law, thereby preventing anyone else from filing a patent on that 
invention. (There is an important timing problem relating to the US' 
"first to invent" system rather than everyone else's "first to file" 
system, but I'm ignoring that here.)? Don't waste your money on a patent 
filing. If you want to contribute your invention to the world for free, 
publish it!

Perens echoed the questionable worth of a commons, telling me:

The patents that would be put into a commons like this are coming form 
the wrong people. Those people already our friends and they're not 
likely to prosecute us. In addition to that, the companies who donating 
patents are already cross-licensed with most of the other large patent 
holders.So, the problem is, if we get in trouble wth Microsoft or 
whoever Microsoft puts up in front of them as a proxy, IBM and HP 
already have a cross-license wth that compay. In a situation like that, 
the fact that their patents are in a pool won't make them useful for 
defensive purposes.

But in the same breath, Perens was careful not to criticize the 
OSDL."What should I say? Sure thanks! Let's not look a gift hourse in 
the mouth.OSDL means well" he told me."But,this move is not going to be 
effective."Perens also pointed out that the patents going into the pool 
don't really benefit the entire open source community, but rather just 
those entitities that OSDL is associated with ? primarily Linux and open 
source code that's licensed under the GNU Public License (the GPL).This 
of course is one of the bigger problems with open source.While many on 
the outside view the open source community as one big free love 
movement, the truth is that it's heavily balkanized along the lines of 
dissimilar and non-interminglable licenses.Both Perens and Rosen also 
seized the opportunity to say what it is the open source community 
really needs.According to Perens, the one thing that's desperately 
needed is patent reform.But he questions whether the OSDL could lead 
such an effort given how dependent the OSDL's board members are on their 
patent portfolios for revenues.Said Perens:

This effort may distract from the legal reform we need.Unfortuantely 
part of that is because if you look at OSDL's membership,they are 
between a rock and hard place.Most of OSDL's membersare patent holders 
who would profit from the tighter restrictions that come from patents in 
software.IBM has the largest patent portfolio in the industry. HP is in 
top 10.OSDL can try and take some half measures. But they can't address 
the problem the way it really needs to be addressed. So, it's kind of weird.

As long as the patent system is what it is, Rosen has his own suggestion 
for where to apply resources (as opposed to establishing patent 
commons).Said Rosen:

Patent attorneys helping open source can perhaps contribute more by 
helping us organize and search our existing prior art data bases to 
invalidate other companies' pesky patents rather than by filing a few 
more patent applications in order to give them away for free.

What's my take? Given how small the open source community is ? and what 
I mean by that is the number of people who are influencing its direction 
and who are really empowered to make changes ? just about any move on 
the patent front really requires that everyone preach to the same 
choir.That hasn't been the case for as long as I've been following the 
intellectual property issues as they relate to open source and clearly, 
things are not changing.The move by OSDL certainly comes across as being 
a nice gesture and the organization's heart may be in the right 
place.But ultimately, another isolated defense mechanism ? in addition 
to the pledges, defense funds, indemnifications, new licenses like the 
CDDL that require patent grants, etc. ? is just more confusing to the 
market and is unlikely to have a noticeable impact on the overall 
situation. The only way licensees of open source will end up exposed to 
less risk as a result of this or any other commons is if it simply 
encourages more patent holders to donate those patents to the public 
domain. And, as Rosen pointed out, there are other easier ways to do that.

-- 
A moment's insight is sometimes worth a life's experience.
Oliver Wendell Holmes


Terri Molini
Sun Microsystems, Inc.
Global Communications
408/404-4976 office; x6-9968
408/608-0377 fax
408/406-9021 mobile
AIM: tmolini

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