The Open Source Development Labs (OSDL) opened the Patents Commons Reference Library in November, providing an overview of patents that have been pledged towards open source. OSDL's chief was quoted as saying that the open source patent was hereby diffused.
During the past year corporate Linux supporters from IBM to Philips have scrambled to support Linux, pledging that they will not enforce their patents against the open source operating system and, in some cases, to open source in general.
But others claim that neither OSDL nor the commercial pledges offer any help. Linux advocate Bruce Perens lashed out against both at the LinuxWorld conference in San Francisco in August.
"The patents come from the wrong people," he said during a meeting with reporters, because only friends of open source will submit to the pool.
"If Microsoft turns out to be the aggressor, that does not help," noted Perens, because all large technology companies have cross-licensing deals indemnifying them from patent infringement claims. "The pool unfortunately turns out to be spitting in the wind," he concluded.
The discussion around the open source patent threat is still very much a theoretical one. There are no known cases of open source developers or users who have been sued for patent violations.
Industry insiders counter that those cases have occurred, but have always been settled and wrapped up in a non-disclosure agreement to prevent the public from finding out.
To add credibility to the discussion, Open Source Risk Management (OSRM) commissioned a study in 2004 that claimed to have identified 283 patents on which the Linux kernel was infringing.
One third of the patents were owned by IBM, and others by parties including HP and Cisco.
The study was published at LinuxWorld in San Francisco and hit the conference like a bomb. But it was also controversial.
OSRM used the results to sell its open source indemnification insurance. The firm also declined to identify the patents making it hard to verify the claims.
OSRM countered that it could not disclose the patents because it is one thing to unknowingly infringe upon a patent, and quite another when a software user or developer is aware of the violation.
IBM is a major Linux backer and has a large business in providing consultancy services to customers switching to Linux. Seeing a potential problem for its Linux business, the firm quickly rallied to lighten the mood.
"I can assure you that IBM has no intention of using its patents against the Linux kernel," IBM's senior vice president for technology and manufacturing, Nick Donofrio, told delegates at LinuxWorld.
Last January the firm added credibility to its promise by crafting a legally binding document pledging to refrain from enforcing 500 of its patents against all software governed by an official open source licence. The promise effectively meant that IBM granted a royalty free licence for the patents.
Others were quick to respond with pledges of their own, including Nokia and Computer Associates. Sun Microsystems pledged 1,670 patents in support of the open source Common Development and Distribution and Licence (CDDL) in February.
But limiting its patent generosity to CDDL isolated Sun. The Free Software Foundation lashed out against the server maker, as did Bruce Perens.
Adding oil to the fire, Sun chief executive Scott McNealy said that he would not make a wider patent pledge nor rule out enforcing Sun's patent portfolio against Linux.
"Sun has an obligation to its shareholders to leverage and protect its intellectual property. We are granting [access to our intellectual property] to people who are responsible and who are signed up licensees of the CDDL," McNealy countered.
Sun's move had another unintended side effect in causing a renewed debate about the proliferation of open source licences.
HP's Linux luminary Martin Fink urged the Open Source Initiative (OSI), the organisation in charge of labelling software licences as open source, to change its procedures in February.
"Approving licences simply based on the compliance of the specification, rather than on the basis of the ability to further open source business models, represents a clear and present danger to the very core of these open source models," said Fink. "If this is the path the OSI continues to choose, it is picking a path towards irrelevance."
OSI took the recommendations to heart. The organisation has since appointed Red Hat's chief technologist as its president and is currently working on reforming its licence approval procedures.
The OSDL patent library is mostly a way to help developers cope with the abundance of terms and licences around patent pledges. It lists the terms, allowing developers to prevent potential violations.
But in the end patent reform is the only true solution, according to Florian Mueller, a German open source activist who has been a key figure in the European campaign against software patents.
"Especially in the field of software, the patent regime no longer serves the public interest," Mueller wrote in an opinion piece on Slashdot.
"In a perfect democracy, software patents would already be history. In the suboptimal democracies in which we live, there are special interests that oppose changes.
"Those have influence and deep pockets, but at the end of the day the most valuable currency in politics is voter popularity."
But while the lobby might be able to prevent software patents from reaching Europe, they are a reality in the US today. Although patent reform is being pushed in the US, the OSDL library and enterprise patent pledges are considered a way to "retrofit patent law", as one observer put it.
Courtesy - Tom Sanders, vnunet.com
During the past year corporate Linux supporters from IBM to Philips have scrambled to support Linux, pledging that they will not enforce their patents against the open source operating system and, in some cases, to open source in general.
But others claim that neither OSDL nor the commercial pledges offer any help. Linux advocate Bruce Perens lashed out against both at the LinuxWorld conference in San Francisco in August.
"The patents come from the wrong people," he said during a meeting with reporters, because only friends of open source will submit to the pool.
"If Microsoft turns out to be the aggressor, that does not help," noted Perens, because all large technology companies have cross-licensing deals indemnifying them from patent infringement claims. "The pool unfortunately turns out to be spitting in the wind," he concluded.
The discussion around the open source patent threat is still very much a theoretical one. There are no known cases of open source developers or users who have been sued for patent violations.
Industry insiders counter that those cases have occurred, but have always been settled and wrapped up in a non-disclosure agreement to prevent the public from finding out.
To add credibility to the discussion, Open Source Risk Management (OSRM) commissioned a study in 2004 that claimed to have identified 283 patents on which the Linux kernel was infringing.
One third of the patents were owned by IBM, and others by parties including HP and Cisco.
The study was published at LinuxWorld in San Francisco and hit the conference like a bomb. But it was also controversial.
OSRM used the results to sell its open source indemnification insurance. The firm also declined to identify the patents making it hard to verify the claims.
OSRM countered that it could not disclose the patents because it is one thing to unknowingly infringe upon a patent, and quite another when a software user or developer is aware of the violation.
IBM is a major Linux backer and has a large business in providing consultancy services to customers switching to Linux. Seeing a potential problem for its Linux business, the firm quickly rallied to lighten the mood.
"I can assure you that IBM has no intention of using its patents against the Linux kernel," IBM's senior vice president for technology and manufacturing, Nick Donofrio, told delegates at LinuxWorld.
Last January the firm added credibility to its promise by crafting a legally binding document pledging to refrain from enforcing 500 of its patents against all software governed by an official open source licence. The promise effectively meant that IBM granted a royalty free licence for the patents.
Others were quick to respond with pledges of their own, including Nokia and Computer Associates. Sun Microsystems pledged 1,670 patents in support of the open source Common Development and Distribution and Licence (CDDL) in February.
But limiting its patent generosity to CDDL isolated Sun. The Free Software Foundation lashed out against the server maker, as did Bruce Perens.
Adding oil to the fire, Sun chief executive Scott McNealy said that he would not make a wider patent pledge nor rule out enforcing Sun's patent portfolio against Linux.
"Sun has an obligation to its shareholders to leverage and protect its intellectual property. We are granting [access to our intellectual property] to people who are responsible and who are signed up licensees of the CDDL," McNealy countered.
Sun's move had another unintended side effect in causing a renewed debate about the proliferation of open source licences.
HP's Linux luminary Martin Fink urged the Open Source Initiative (OSI), the organisation in charge of labelling software licences as open source, to change its procedures in February.
"Approving licences simply based on the compliance of the specification, rather than on the basis of the ability to further open source business models, represents a clear and present danger to the very core of these open source models," said Fink. "If this is the path the OSI continues to choose, it is picking a path towards irrelevance."
OSI took the recommendations to heart. The organisation has since appointed Red Hat's chief technologist as its president and is currently working on reforming its licence approval procedures.
The OSDL patent library is mostly a way to help developers cope with the abundance of terms and licences around patent pledges. It lists the terms, allowing developers to prevent potential violations.
But in the end patent reform is the only true solution, according to Florian Mueller, a German open source activist who has been a key figure in the European campaign against software patents.
"Especially in the field of software, the patent regime no longer serves the public interest," Mueller wrote in an opinion piece on Slashdot.
"In a perfect democracy, software patents would already be history. In the suboptimal democracies in which we live, there are special interests that oppose changes.
"Those have influence and deep pockets, but at the end of the day the most valuable currency in politics is voter popularity."
But while the lobby might be able to prevent software patents from reaching Europe, they are a reality in the US today. Although patent reform is being pushed in the US, the OSDL library and enterprise patent pledges are considered a way to "retrofit patent law", as one observer put it.
Courtesy - Tom Sanders, vnunet.com