A new online patent library hopes to offer developers a little more confidence when they’re developing open-source applications, but one developer says he’d rather see patents done away with all together.
The Patent Commons project (www.patentcommons.org), which went live Nov. 15, was first announced by The Open Source Development Labs (OSDL), a pro-Linux industry group, at the LinuxWorld Conference in August.
The free database includes information on patents and technology pledges, including commitments by companies that want to retain ownership of their patents but will allow their use in software implementations. Backers include CA Inc., Red Hat, Novell, Sun Microsystems and IBM Corp., which pledged 500 of its own patents to the database in January.
Diane Peters, the OSDL’s general counsel, said the goal is to provide information to developers about what the pledges provide, what the rules are, and what’s available. “Just the mere fact you don’t know about the patent isn’t a defence to a claim of patent infringement,” said Peters.
IBM spokesperson Todd Martin said that in addition to the 500 U.S. patents it has pledged, IBM has also promised not to assert its intellectual property against certain standards organizations within the health care and education sectors that are creating open standards for those industries in areas like electronic forms and open document format.
Martin said IBM believes patents are an important resource in supporting innovation, but a balance must be struck between open-source and proprietary software.
“Patents should be granted based on ideas that are truly genuine scientific progress and technological innovation,” said Martin. “We would maintain intellectual property policies should be careful to require that type of innovation before granting a patent.”
Sun hasn’t contributed patents to the Commons, but Chief Open Source Officer Simon Phipps said the company has contributed something as important to protecting developers: its Common Development and Distribution License (CDDL), which includes certain patent grants, and a patent non-assert covenant.
Phipps said the existence of software patents has a “chilling” effect on open-source software development, because one of the fiats of open source is to save software developers from having to secure legal advice. He said in areas where there are strong patents, such as Web services, there is little to no open source activity.
“The existence of software patents exposes individual developers to the risk of litigation,” said Phipps.
While he sees the Patent Commons as a positive development, Milind Joshi said he would still rather see an end to software patents. Joshi is the president of Idea Technosoft Inc., a Toronto application development company specializing in data capture, extraction and forms processing, and a user of open source tools.
He said the usefulness of the Patent Commons depends on how new the patents in the database are, and their quality.
He also sees potential problems down the road. A company may grant usage of patented processes now, but another company with different ideas could acquire the patent holder down the line.
MySQL has been a popular open source database for many years and Helsinki, Finland-based Innobase has developed InnoDB, an add-on storage engine for MySQL distributed through an open-source license and bundled with MySQL. Innobase was recently acquired by Oracle and the company has said it expects to continue the relationship, but Joshi said he’s still concerned about the future of the tool and the impact any licensing changes may have on his clients.
Another issue for Joshi is patent trolls, or shell companies that scoop up patents and go after software companies, claiming patent infringement and demanding one-time license fees approaching $250,000. Fighting them in court can be expensive, and Joshi said even if the troll looses, it simply declares bankruptcy since there are no assets to seize.
“A lot of companies I know of have just chosen to pay the $250,000,” he said.
As an open source developer, Joshi said he puts his work into the community to share his experience, get peer acknowledgement and “feel cool.” He said he’s against patents because the innovators can’t afford to get them; it’s the business people who didn’t come up with the idea but have deep pockets who snap them up.
The OSDL’s Peters said her group doesn’t take a position on software patents, but said they are a danger to open source innovation and the system is in need of reform. She said the patent commons is one step in that reform process.