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Study: Linux may infringe on 283 patents

Insurance company finds patent threats to open-source software; 27 held by Microsoft

By Robert McMillan
August 2, 2004 12:00 PM ET

IDG News Service - A total of 283 registered software patents, including 27 held by Microsoft Corp., could be used as the basis of patent lawsuits against the Linux kernel, according to a study of U.S. software patents released today.
The study was funded by Open Source Risk Management LLC (OSRM), a company that provides insurance against lawsuits related to the use of open-source products. It was conducted by patent attorney Dan Ravicher, executive director of the Public Patent Foundation and senior counsel to the Free Software Foundation.
"There is a nontrivial risk of patents being asserted against Linux," said Ravicher, who added that his findings shouldn't come as a great surprise given the broad scope of the Linux project. "The conclusion we came to is not that Linux is doomed and that this is horrible," he said. "It's very similar to the result you would get if you investigated any other software program that's as successful as Linux."
Though a patent lawsuit relating to some piece of open-source software is "inevitable," it is unlikely that Microsoft will be the company to launch such a suit, said Jeffrey Norman, a software lawyer at Kirkland & Ellis LLP in Chicago. "I don't know if it's going to be Microsoft," he said. "There are some PR issues for Microsoft."
Because of their open nature, projects like the Linux kernel are more vulnerable than proprietary software to patent claims, Norman said. "It's much easier if you have a software patent to go through an open-source product and verify that your patent is there," he said.
But a larger problem is that in the relatively young craft of software development it's easy to come up with techniques that, while novel, should probably not be patentable, said Norman, who cited Amazon.com Inc.'s patent for one-click purchasing as an example of such a technique. "The novelty is not novelty with a capital N. You're not inventing the internal combustion engine," he said.
Norman was skeptical about the effectiveness of such a study, given the vastness of the code in the Linux kernel and the large number of software patents that have been issued. "I don't think that you could identify all of the patents that were possibly relevant to the Linux kernel," he said. "The only way you could do it was if you were a kernel developer."
Ravicher's organization, the Public Patent Foundation, which claims that half of the patents issued by the U.S. Patent Office contain no innovation, is lobbying for reform of patent laws. Ravicher said that efforts like Grokline.net, an OSRM-sponsored effort to

Reprinted with permission from IDG.net. Story copyright 2014 International Data Group. All rights reserved.
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