MESSAGE
| DATE | 2004-08-02 |
| FROM | From: "Inker, Evan"
|
| SUBJECT | Subject: [hangout] Study: Linux may infringe on 283 patents
|
Study: Linux may infringe on 283 patents
Insurance company finds patent threats to open-source software; 27 held by
Microsoft
http://www.computerworld.com/softwaretopics/os/linux/story/0,10801,94986,00.
html?nas=PM-94986
News Story by Robert McMillan
AUGUST 02, 2004 (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 catalog the roots of the Unix
operating system, could also protect open-source software from patent suits.
The patent study, which took three months to complete, involved examining
patents that had been held up in court, as well as those that had simply
been issued by the U.S. Patent and Trademark Office. Using a variety of
automated search tools, Ravicher refined his search to 400 patents that had
been tested in court and 1,000 that had not, which he then examined to see
if they could conceivably form the basis of a lawsuit against Linux.
Ravicher found that none of the 400 court-tested patents could be used
against Linux, but that 283 of the 1,000 untested patents pose a potential
threat. Twenty-seven of those patents are owned by Microsoft.
Linux ally IBM owned the largest number of patents uncovered in Ravicher's
research. The company held 60 patents that could conceivably threaten the
Linux kernel. Hewlett-Packard Co., Intel Corp. and Novell Inc. also held
some of the patents in question, Ravicher said.
Ravicher's research didn't examine the risk posed to parts of standard Linux
distributions that reside outside of the kernel, such as the K Desktop
Environment, or the Samba file-sharing software, but OSRM intends to study
the risks posed to other open-source products, a company spokeswoman said.
The topic of open-source patent risks was raised earlier this month when a
2-year-old HP memo urging company executives to develop a strategy to
protect HP from Microsoft patent lawsuits against open-source technologies
was published on the NewsForge.com Web site.
"Basically Microsoft is going to use the legal system to shut down
open-source software," wrote Gary Campbell, who was HP's vice president of
strategic architecture at the time. "We don't have to exit selling to the
open-source market, but we need to plan smartly where to reduce our
exposure."
Both Ravicher and OSRM declined to identify the specific patents identified
in the study. Publishing the names of the patents could make it easier for a
Linux customer to be sued for "willful infringement," which could then lead
to increased damages in the event of a successful lawsuit, said an OSRM
spokeswoman.
Ravicher's study found no patents held by The SCO Group Inc. that could pose
a threat to the Linux kernel. SCO, which has been at the center of a number
of prominent lawsuits against Linux companies and users, claims that Linux
contains code that violates its intellectual property.
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