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You say Intel wouldn't do that to Mono, one of the Open Source answers to Microsoft's .NET technology. Maybe not. Some considerations: Intel has a love/hate relationship with Microsoft, and has been the target of what some say are strongarm tactics by Gates and company. Who's to say that Microsoft isn't behind the scenes, influencing Intel's moves? Arguably, Microsoft would like nothing better than to see all Open Source development stopped. Then there's the partnership between Intel and HP. Did you know that Hewlett-Packard and Intel have a "front" organization to which they've assigned dozens of patents over the last 10 to 15 years? It's called the Institute for Development of Emerging Architectures. (The emerging architecture being 64-bit chips.)

Carly Fiorina, giving the keynote talk at LinuxWorld NYC 2002, didn't try to hide the fact that Hewlett-Packard practices operating system polygamy for the sake of the customer. At any moment, Microsoft could become the jealous wife who stamps her foot and threatens withholding of favors. What Intel-strings would HP pull to keep MS happy?

Keep in mind the rivalry between Microsoft and Sun. Remember the fight over Java? They'll do just about anything to knock each other off kilter. Sun continues to taunt Microsoft with the free StarOffice suite, a collection of business applications specifically designed to compete with MS Office, at zero cost to the consumer. Sun has adopted Gnome as its desktop window manager of choice. If MS could get a dig on Sun by knocking GNOME out, do you think it'd do it?

Miguel de Icaza, the CTO of Ximian and one of the first Gnome developers, is also the Mono project leader. He said he'd like to see future versions of Gnome based on .Net technology. Even if Gnome refuses to be infected by Mono, just by changing the license, de Icaza has opened the door for patent holders to get entangled in the Mono project and possibly in any number of Free Software projects that decide to make use, intentionally or unintentionally, of patent-encumbered Open Source software that evolves from those libraries. How can Open Source software be patent-encumbered?

First, some background

The problem with software patents is easily illustrated if we use music and songwriting as an analogy, like Simson Garfinkel, Richard Stallman, and Mitchell Kapor did in their 1991 article "Why Patents are Bad for Software."

Songs are created from individual notes combined with chord progressions. There are really only 12 notes to choose from, whether one is composing a melody or placing the melody over a pleasing chord arrangement. When someone writes a song, his copyright on that song covers the original combination and arrangement of some or all of those 12 notes and the progression of harmonies created by the chord selection. No one is allowed to copy the author's melody without his permission, but the notes and the chords that make up the song are freely available for use by anyone. In fact, most, if not all songs have note progressions that have been used in other songs before, kind of like algorithms.

What if all of a sudden the U.S. Patent Office decided that musicians could patent chords or certain note phrasings? Say a composer decided that this note progression was unique: C, F#, E, D, C and the patent office, being unfamiliar with music, agreed with him? Now the composer can force anyone who writes a song that uses his "invention" to pay him any fee he deems appropriate, or stop singing it. It sounds ridiculous. But if this happened, we would soon see an end to the seemingly endless flow of new songs. What starving artist could afford the royalty payments?

On a larger scale, this is what is happening with software patents. The difference is that with software, there are many, many more "notes" to choose from in the creation of an application or process, which makes the process of that creation more complicated and difficult to understand from the patent office's perspective. It also makes a programmer's life dangerous because she never knows when she might be violating a software patent. What if at the very same time she wrote her program, another company filed patent applications on the very same processes and algorithms she used? It has happened, in the case of the LZW compression used in the creation of GIF images.

Software patents can nullify the freedom of free software

If company A modifies a piece of free (as in speech) software, adding patented procedures in the process, it is possible that software could be encumbered by restrictive patent licensing terms. For instance, company A could require royalty payments from company B at any time during company B's use of the "free" software that includes patented processes. Company A could further restrict the "freedom" of such software by refusing to grant a patent license to Company C, effectively, if not technically, declaring null and void the "free" software license.

When Richard Stallman and the Free Software Foundation drafted the GPL and subsequently the LGPL, they wanted to do all they could to protect developers and users from the encumbrances of software patents, so they included the following statements:

"... Software patents pose a constant threat to the existence of any free program. We wish to make sure that a company cannot effectively restrict the users of a free program by obtaining a restrictive license from a patent holder. Therefore, we insist that any patent license obtained for a version of the library must be consistent with the full freedom of use specified in this license."

"If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Library at all. For example, if a patent license would not permit royalty-free redistribution of the Library by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Library."

Other licenses, such as the MIT (or X) license adopted by Mono for its class libraries, do not explicitly require a patent license grant. Some experts say that the MIT license and others like it, including the BSD license, carry an "implicit" patent license grant. But this has not been tested.

We are surprised we heard little complaining when Ximian CTO and Mono project leader de Icaza told The Register, "I'd like to see Gnome applications written in .NET in version 4.0 -- no, version 3.0. But Gnome 4.0 should be based on .NET. A lot of people just see .NET as a fantastic upgrade for the development platform from Microsoft." de Icaza took issue with The Register over the headline on the article, but he didn't deny that he made the statements as quoted. We don't know what, if anything, will come of the Mono license change, and of course, de Icaza is not the CTO of Gnome, only of Ximian. However, we're also not sure why Intel insisted on the MIT license instead of the LGPL, but you can be sure it has everything to do with protecting so-called intellectual property.

So, even if they are not part of the Free Software religion, shouldn't Open Source software developers be doing everything they can to keep software patents out of their projects? If you think Intel. or any other company, would do whatever it takes to protect their profits, then the idea that they would insert patented processes into the Mono libraries, sit back while Gnome makes use of them, and then try to cripple or even shut down Gnome through sky-high royalties or refusal to grant license doesn't seem implausible. What better reason to use the GPL or the LGPL? What was de Icaza thinking when he adopted the MIT license?

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