August 2, 2004

A fresh -- and optimistic -- take on patents and open source

Author: Robin 'Roblimo' Miller

Dan Ravicher, President, Executive Director, and Founder of the Public Patent Foundation, believes there are plenty of ways open source developers, advocates, and users can fight against innovation-hindering software patents. But he also believes fighting may be less necessary than some people believe.First, Ravicher says, individual open source software users don't need to worry. The most a company like Microsoft could get out of them would be the value of products they didn't buy because they were, instead, using products that infringed Microsoft patents, and it simply wouldn't be worth Microsoft's time and effort to track all the users down and sue us.

Second -- and this is the big one -- Ravicher says the oft-quoted figure that only one half of one percent of all patents are overturned in court is misleading; that there are 200,000 patents issued every year, and only about 2000 of them -- that's one percent -- are challenged. And of those 2000 cases, the patents' challengers win 46 percent of the time. In other words, the win rate on legal patent challenges is closer to 50 percent than to one half of one percent. Seen in this light, a proprietary software company bringing an infringement lawsuit against an open source project isn't in a situation where it has nothing to lose and everything to gain, but has a nearly fifty-fifty chance of having its patent overturned. This figure makes it unlikely that even the most rapacious proprietary software company is going to start suing open source projects. No sane Board of Directors would want to take the chance of losing potentially valuable patents because of an attempt to pry money from people who probably don't have enough to make winning worth the risk.

You can't sue companies over patents you believe are invalid

"You can't litigate a patent unless the patent owner has aggressively asserted the patent against you," Ravicher says. "Otherwise there's no case or controversy."

But what you can do, he says, is "ask the patent office to revoke a patent. That's an administrative procedure, not a court thing."

This is not necessarily easy, but it's something individuals can do, and groups like the EFF can do even better -- and the EFF has an active patent busting effort under way that can use your help.

Not a single validated patent covers Linux

No patents that might conceivably cover any part of the Linux kernel have been proven in court. But, Ravicher says, there are 283 patents that he and other researchers believe might be construed as covering some piece of the kernel.

Of those, he says, about one third are owned by companies including Cisco, HP, IBM, Intel, Novell, Oracle, Red Hat, and Sony that have large investments in GNU/Linux and are unlikely to use those patents as weapons against open source.

On the other hand, 27 patents that might cover some part of the kernel are owned by Microsoft. Uh oh. And an undetermined number of other patents on the list of 283 may be held by companies that offer no viable products or services and, in many cases, exist only to sue productive companies and people over patents (or patent rights) they have acquired one way or another, much the way Ludlow Music has jumped on JibJab for their hilarious "This Land" parody even though the original "This Land is Your Land" song was not written by Ludlow Music. (Indeed, its composer, Woody Guthrie, was a notorious song-sharer who would probably be doing benefits for the EFF's patent busting efforts if he were still alive.)

But such is life in America, where, you might say, "This lawsuit's made for you and me," is sung by far too many people, far too often, especially when it comes to patents. In light of this problem it's good to be prepared with lots and lots of prior art for everything possible, which is why many groups -- including the EFF -- are now collecting instances of prior art so they can make it extra-risky to sue open source projects over patent use.

Ravicher also doesn't believe Linux and open source are being singled out for patent attacks or that there are an exceptional number of patents that could affect Linux. He says, "The patent risk for Linux is very typical. It's not unlike any other successful software product."

Developers shouldn't know too much about patents

Linus Torvalds has been jumped on by some proprietary source advocates for supposedly having a cavalier attitude toward intellectual property and not wanting to know about patents that might cover part of the Linux kernel. Ravicher says that this is the smartest attitude Linux can take in a legal sense, because if you willfully infringe on a patent the potential damages are three times as much as if it's a mistake made in ignorance.

This is why Ravicher hasn't publically released the list of 283 patents that might affect Linux (and why we didn't ask to run it on NewsForge): As long as kernel developers stay ignorant of those patents, they can't be liable for treble damages if an infringement is found -- and those treble damages are plus legal fees, so that even if the amount a court finds is due because of an infringement is ludicrously low, like $30 instead of $10, the legal fees could run into millions of dollars.

Sometimes, it seems, ignorance truly is bliss.

How open source software can incorporate patented code

Ravicher says the idea that open source and even GPL free software can't include patented code is false. (Don't claim the Free Software Foundation says otherwise. Ravicher is the FSF's senior counsel these days, working hand-in-hand with Eben Moglen.)

The trick is, you can't require per copy patent royalty payments for GPL software (or for software distributed under any license approved by the Open Source Initiative). But it's perfectly fine to acquire patented software for a lump sum or use patented software that has been expressly donated to your free (or open source) software project.

Remember, the freedom to redistribute is what counts, not that the code was created for free. And if the original author patented it, so it goes. That's the style these days. Living with a system where software patents are common, and dealing with that system, is not the same as agreeing with how that system operates. Obviously, if you look at what Ravicher's Public Patent Foundation does, you'll see that one of his goals is "improvements to the patent system."

And now, the sales pitch

Ravicher is also affiliated with a company called Open Source Risk Management (OSRM) that hopes to make money insuring Linux and open source users against patent lawsuits and other IP claims. Groklaw maven Pamela Jones is the company's director of litigation risk research. And NewsForge interviewed OSRM founder Daniel Egger back in May.

They can't sell insurance quite yet -- they have a lot of regulatory hoops that need jumping through first -- but they're trying to drum up interest in policies that cost $150,000 per year and offer indemnification for up to $3 million in infringement damages, plus -- included in that low, low price -- consulting and "risk mitigation services." There will only be a limited number of policies available the first year, and Ravicher says there are already companies on a waiting list for them, although he declines to state how many.

In any case, Ravicher gave us the URL for a white paper he wrote called "Mitigating Linux Patent Risk" that you might want to read if you're interested in this sort of thing:

Meanwhile, if you're at LinuxWorld Expo (LWE) this week, you might want to spend a few minutes talking with Dan Ravicher if you can round him up. He's an interesting guy. I first met him in the course of a Slashdot interview back in 2001 when his interest in how the law affects free and open source software was still a personal hobby. Since then he's become a formidable expert on the topic. We'll talk with him again after the LWE flurry dies down. We always learn when we listen to Dan.


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