The Open Source Approach to Patent Policy

February 24, 2005

Column by Sean Kellogg, Editor-at-Large
The past months have witnessed amazing developments in the area of software patents. First IBM, and then Sun Microsystems, announced they were granting the rights to more than 2000 patents to open source developers for use in software development. The announcement comes at a critical moment in Free/Open Source Software (FOSS) history, with some companies in active litigation over the Linux operating system and others issuing veiled threats. This topic seems a bit removed from the usual fare available on the ACSBlog, but if you give but a few minutes to the following paragraphs, you may decide patents are a bigger deal than you originally thought.
From a legal perspective patents rank as a rather dry subject. A largely technical area of expertise, the patent practice is sometimes called "the sport of kings" as it is dominated by attorneys wielding Ph.Ds and litigated by only the wealthiest companies. It is no wonder many developments in the patent world go unnoticed by the universe around it. But while we may be quite oblivious as to the effects of patent policy, as technology continues its unstoppable creep into our lives, so to does the public policy of patent protection.
The technology hobbyist often acts as our coal mine canary. Hobbyists have often pushed the envelope of technology, offering a glimpse of what behavior is "acceptable" under patent law well before the average user gets their hands on it. They come in all varieties, from ham radio operators to recreational pilots, amateur star gazers, even private astronauts. Each one choosing to embrace a technology, to iron out the kinks and suffer the hazards of early adoption. None of these amateurs have ever really been in a position to threaten their corporate counterparts, until the evolution of the open source software developer.

In these individuals, and the movement around them, propriety software developers suddenly find real competitive threats (see here and here for more on threats), but also find themselves in a position to use their market dominance to stifle meaningful competition. Market leaders often use their existing software patents to shut down outside developers for the 20-year length of the U.S. patent term, then count on the development of a whole new set of patents ready to force out the competition by the time the original patents expire. So while patent policy is designed to drive innovation and apply market forces to intellectual property, in practice whole industries become locked down for 20 years, and permanent barriers to market entry are erected.
So why worry about software developers, after all patent policy went largely unnoticed during the industrial revolution? That question points to a critical difference between software development and manufacturing. Patent infringement in the manufacturing world is a corporate enterprise. To pose any real threat to a patent holder, it would require millions of dollars in capital to deploy the technology required to truly infringe. That is not the case for software, where one individual with a broadband internet connection can do as much damage to a patent holder as a Fortune 500 company. The difference makes things sticky at the policy level.
Unlike copyrights, to infringe on a patent you need never have known about the original invention. Sitting in an isolated box, removed from all other input, a FOSS developer can violate any software patent in the world if they only think hard enough. A group of developers seeking to write software to interoperate with Windows file sharing called SAMBA provide a classic example. By developing a protocol that allows a non-Windows computer to interface with a Windows computer, SAMBA developers unwittingly violated Microsoft patents. Although their work enhances the usefullness of Microsoft technology and opens the door for greater interconnectedness, their work is under the constant threat of Microsoft litigation.
Thankfully, not is all lost for the FOSS developer. Just as was done with copyrights and the General Public License (turning copyrights around to aid FOSS) so too will be done with patents from IBM and Sun. Each company's contribution presents unique challenges and opportunities for FOSS. The 400 patents from IBM can be used freely by any project under a license approved by the Open Source Initiative (OSI). By building on these 400 patents, FOSS developers can develop and integrate the technologies with other FOSS technology, increasing their societal worth. As the patents themselves become more valuable, other developers, propriety or otherwise, seeking to benefit from the freely available patents may be persuaded to adopt an open license to comply with IBM's terms of use.
Application of this approach is not limited to software. In the biotech sector a group of scientists, upset with the licensing fees associated with using gene therapy technology licensed by large multinationals, developed an entire set of unencumbered technologies. Instead of licensing them under the same model as the multinationals, these scientists are allowing anyone to use them and develop them so long as those developments are licensed under the same terms. They hope to develop a completely new way of working with genes that is focused on investing resources into research instead of corporate shareholders.
All this being said, sometimes it is wise to look a gift horse in the mouth. Sun has promised 1,400 patents, the largest grant to date. However, to use the patents the software must be licensed under Sun's Common Development and Distribution License (CDDL). The CDDL is incompatible with the GPL, the dominate FOSS license, making it impossible to integrate existing open source software with Sun's patents. Additionally, the largest application available under the CDDL is Sun's OpenSolaris, a product Sun hopes to directly profit from FOSS development. And perhaps they will, its far to soon to say if Sun's approach to open source involvement represents the right path or if IBM's more open approach becomes the dominate granting method. Regardless, this development in software patents demonstrates a small flicker of hope that the hobbyist, and some day mainstream consumers, will continue to operate free from patent enforced market oppression.