Moving on With Patents and Open-Source Software

I'm starting to wonder if we in the open-source community need a grass-roots effort to address patent and license issues. For the moment, let's just call it "usethesystem.org." Its purpose will be to help our open-source community put aside a resistance to patents and some of the misperceptions that are preventing the community from defending itself with a strong patent portfolio. We have the opportunity to thrive by embracing patents and highly promising means to do so, if we accept them as a fundamental part of our system.

I understand the open-source software community's frustration with the existing software patent infrastructure; like many of you, I engage in discussions and negotiations around patents regularly. But denouncing the patent system and refusing to file for patents isn't the answer, and avoiding the controversy won't make the need for patents go away. It doesn't change the legal system, remove the threat to your intellectual property or prevent others from continuing to file for patents. On the contrary, refusing to resolve the issue by addressing it head-on simply enables other interests, also known as your competitors, to keep on collecting the patents that will put them in the driver's seat with a greater ability to put their own interests ahead of yours -- and in some cases, the community's.

Two misconceptions about patents fuel the open-source community's resistance to creating a stellar patent portfolio and defense strategy. The first misperception, which I've heard often from open-source developers, is that prior art is a better method than patents for defending our ideas. But there's a fundamental flaw in that argument: Other parties are filing for patents while we are relying solely on prior art. While prior art prevents others from obtaining patents on the same idea and can be used to invalidate an inappropriately issued patent, a patent provides additional negotiating leverage that prior art simply can't. Leverage in negotiations is the name of the game.

The second commonly held, yet false, notion is that the open-source community can rely on corporations to give it the tools it needs to defend itself. There's a bit of wishful thinking and some rather skilled public relations spin in that idea. When a patent holder gives the community a license to use its patent, the patent holder is just saying that it won't sue the community for using that patent. What it's not giving the community is the ability to use that patent as defense against other patent holders. Unless the community is able to convince every U.S. patent holder to give it a right to use their software patents, the licenses to use that they have so graciously been granted are virtually meaningless.

The more effective and realistic means to protect the health of the open-source development model and community is to take a page from the corporate playbook. Hewlett-Packard Co., for example, uses its patent portfolio to defend the products it ships, and that certainly includes open-source software products. Just as HP and many other corporations have done for decades, we encourage fellow members in the open-source community to accumulate patents of their own.

Building its own portfolio of actual patents, not just the right to use them, enables the open-source community to effectively defend open-source software and to use its patents to negotiate cross-patent agreements. Open-source developers should file for as many software patents as they can and stockpile them. By working with the system, you can file for patents, accumulate them and use them to protect your software rights.

In regards to the process for filing patents, I think as a community we missed a golden opportunity when Stuart Cohen, the CEO of Open Source Development Labs Inc., suggested that OSDL should be the forum to help the open-source community deal with the patent issue. He went so far as to suggest tools, such as a database for open-source patents. We should have embraced Cohen's offer. The process for filing and stockpiling patents being hosted by an organization such as OSDL, and the implementation of the open-source database tool he mentioned, are ideal means for the open-source community to move beyond resistance to enjoy the many benefits of patents can provide.

Those of us who believe in open-source software need to band together to ensure its success as a software development model, and we need to do this proactively. In our case, "proactively" means using good licensing models, promoting a thorough understanding of the legal models and addressing issues concerning intellectual property in the context of the open-source development model through educational efforts.

Most importantly, we need to be proactive by accumulating a portfolio of patents that can be used by open-source software developers both in writing their code and in negotiating agreements with others who might hold patents of value to open-source software solutions. The open-source software community has a lot of brilliant minds. Together, they can put together an outstanding portfolio of patents for use by the entire open-source software community that could rival any single existing patent holder today.

Maybe we don't need a grass-roots effort called usethesystem.org. But we do need to encourage the open-source community to get over our resistance to patents and begin to focus on the implementation of patents as a primary means to protect and promote our collective best interest.

Stormy Peters is manager of HP's Open Source Program Office.

Copyright © 2005 IDG Communications, Inc.

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