August 10, 2004

Can the open source community beat software patenters?

Author: Jay Lyman

Patents and the threat they pose to open source and overall software innovation are a hot topic, but patents may not be a useful weapons against a community that works with, ardently supports, and defends open source with money, time, and expertise.

Jason Shultz, an EFF staff attorney whose organization has posted an Old West-style 10 most wanted patents" list, said there are a number of patents -- which the group argues are overly broad and stifling to innovation -- that could potentially harm open source projects or plans.

"As more and more average computer and Internet users start to adopt open source technology, it's going to make the technology itself a more attractive target [for patent holders] and I think the whole idea of open source being low cost and being affordable is very threatening to property owners looking to extract rent," Shultz said.

Shultz added that a patent holder might target an open source project or product that is competing with the patent holder's proprietary software even if there is little chance of collecting mometary damages.

Shultz pointed to the iPIX 3D picture plug-in as one open source project that was eventually destroyed by on patent claims. "In that particular case, the patent did shut down the open source effort," he said.

Throwing down the gauntlet

"I think open source is vulnerable not only because they do make money, but because they force other providers to keep their prices lower," Shultz said. "Open source takes advantage of those market forces and that's exactly what these patent holders don't want, so I think it's a big threat."

Shultz said the openness and availability of open source code also makes it an attractive target for patent holders, who can easily scour open source software on the Internet for anything resembling infringement.

"It's easy to get a copy [of an open source program] and it's easy to find its creators," Shultz said. "In that sense, it makes it pretty vulnerable."

On the other hand, Shultz pointed out, one of the best weapons that patent holders possess, especially in terms of the most-wanted patents on EFF's list, is a lack of community among the companies that are sued or threatened.

"[Patent holders] find companies who work alone or against each other," Shultz said. "In the open source world, I think they're going to confront some real community. The opportunity for open source to come together and crush the patents, I think, is very exciting."

While it involves contract and copyright more than patents, Shultz said the open source community's response to the SCO Group's suits may discourage similar strategies in the future.

"I definitely think the open source community has done an excellent job of throwing down the gauntlet to prevent future predators from trying to attempt [similar things]," Shultz said.

Response to SCO routine, law trumps community

Roger Cook, an attorney with San Francisco-based IP law firm Townsend & Townsend, said although many in the open source community see SCO's claims as particularly offensive and unsupported, SCO-type scoundrel-hounding is not uncommon when a company attempts to enforce patent rights.

"People who enforce patents are often criticized," Cook said. "By the same token, patent right is in the U.S. Constitution."

"There's always a feeling of that and it's certainly a popular thing," Cook said. "It makes good copy to say, 'Look at what they're doing now.'"

Cook, who referred to his own work for an individual who was chided SCO-style and later vindicated when the courts found in his favor on a laser patent, said the idea of patent cases against open source may be new, the patent enforcement struggle remains the same as it has always been.

"Some argue that allowing patent enforcement against open source projects is dangerous and will thwart open source enterprise," Cook said. "Others feel if you're infringing any patents, you shouldn't be doing it or someone should get paid for it."

Cook, who said he would not be surprised to see federal legislation that channels rights in open source, added that open source is a likely target of patent holders because of a lack of control combined with heavy use.

Just as the vitriolic response to SCO is nothing new, the formation and strength of community is a typical answer to patent issues and is not unique to open source, according to Jeff Berkowitz, an IP attorney with Washington, D.C.-based Finnegan-Henderson.

"You'd be surprised where you'd find community and companies coming together under certain circumstances," Berkowitz said. "In general, the fact that there is community help in the process of defending against patent holders' claims of infringement is often the case."

Berkowitz said while it certainly helps compared to situations where there is only a single patent and a single infringer involved, the community support does not always add up to much in court.

"It's just another flavor of another organization," Berkowitz said. "Not everything is invalid because the community says it is so."

Berkowitz said the outcome of the SCO case may very well impact whether other companies or groups attempt similar strategies of intellectual property enforcement, but he added that despite the negative PR and the legal fight, SCO has not backed down at all.

Pushing back with prior art

Some of the concerns revolving around the patents issue include the fear that U.S. patents are pushing good open source projects outside America, and that those same U.S. patent laws may be coming soon to a European nation near you.

Remi Denis-Courmont, a student engineer at the Ecole Centrale Paris and system administrator at VIA Centrale-Reseaux, said his organization's open source streaming solution, VideoLAN, probably violates "a lot of overly broad patents."

"And we hope not to have to stop because of that," Courmont said. "So far, the policy concerning patents consisted of not taking care of it until a real problem arises. Besides, the VideoLAN project and its home non-profit VIA Centrale Reseaux are based in France, where software patents are still invalid."

Asked whether the community aspects of open source will help fight infringement claims, Denis-Courmont said he personally felt open source projects were less likely to be attacked because they are perceived as, and often really are, "pennyless."

"Which is not untrue for VideoLAN, which is part of a not-quite-rich nonprofit," Denis-Courmont said.

"That might not however be true for [patent] holders that are particularly opposed to open source," he added.

To combat such a patent holder, the open source community offers a somewhat intangible weapon in the networks that make up this part of the software industry. Those networks, and the technophiles and geeks that are part of them, are an excellent source for one of the best patent infringement defenses: prior art.

Mark Spencer, president of open source VoIP provider Digium, said his venture is likely unaffected by any of the EFF's most wanted, but warned, "...with patent law, there is definitely no telling."

Spencer argued that to counter infringement claims based on overly broad patents, the open source community should secure its own patents.

"It has been my view that so long as silly software patents are permissible, the free and open source software community must prepare a strategy for building its own patent repository for patent licensing," Spencer said. "However, the community in general seems to be quite resistant to such notions."

Spencer, who said his own company avoids much of the patent problem because the technologies involved in traditional telephony are so old that patents have expired, indicated Digium still faces challenges in the newer, VoIP technology area.

Spencer said the other way to fight patents is by "busting them" -- finding prior work that trumps a patent issued at a later date.

"In any case, Groklaw's impressive handling of the SCO case demonstrates that the open source strategy can be applied outside of software," Spencer said. "Look at the mountains of research that the community has done on that case."

Just before he responded for this article, Spencer said he had encountered a peer who held a patent on "jitter buffering" in VoIP, which is similar to one of the EFF's 10 most wanted patents.

"[His patent] is from 1994, meaning that he was already doing VoIP then, and he believes there may be prior art as early as the 1980s for voice over packet in general," Spencer said. "He took down the two patents on the EFF Web site and said he'd see what he could dig up, so maybe that's some good news."


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