Patent war looms

Flaws on software patents have come to light once again as industry groups and analysts renewed calls for reforms on software patent systems worldwide, saying the process should promote, rather than impede, innovation.

This came days after Microsoft executives were quoted in a Fortune magazine article saying that open source software, including Linux, infringes on some 235 Microsoft patents.

Microsoft’s patent pursuit has certainly brought into focus many of the problems that exist with the current software patent system. For starters, the sheer number of patents today — over 230,000 software patents in the U.S. alone — makes the task of doing a patent search to identify meaningful infringements an impractical endeavour, said Nauman Haque, research analyst at Info-Tech Research Group in London, Ont.

“One of the clauses that make a patent a patent is that the technology is not obvious. With so many of these patents being issued 10, nine or eight years ago when technology was still fairly new, (those patents) might be easily replicated now; [The technology] might not have been obvious then, but it may be obvious now,” Haque argued.

He added that software patent is a “fairly new” legal concept, and that a majority of patent suits in the past decade could be considered weak or unsubstantial today.

Haque doesn’t believe, however, that litigation is a course Microsoft would take to settle its patent infringement issue, nor does he think other software vendors or patent owners would take Microsoft’s lead and launch their own patent fight against open source software.

Microsoft’s move is seen as a FUD (fear, uncertainty and doubt) strategy to force open source users into a licensing deal with the software giant or even migrating to a Microsoft platform, Haque said.

“From a practical sense, [Microsoft is] not going to sue their customers, they are not going to get into another large legal entanglement with someone like Red Hat or another large vendor,” he said.

Microsoft has since clarified that raising the patent infringement issue was a strategy to encourage licensing agreements, similar to the one it reached with Novell last year, rather than pursue a legal course of action.

“Our strategy from everyone in the company — from [Steve] Ballmer to Brad Smith to me and everyone in between — has always been to license and not litigate as it relates to our intellectual property. So we have no plans to litigate. You can never say we’ll never do anything in the future, but that’s not our strategy,” said Bill Hilf, general manager of platform strategy and director of Microsoft’s work with open source projects, in an interview with IDG News Service.

At least one industry group is demonstrating an active push towards patent reforms. Late last month, the Electronic Frontier Foundation announced its partnering with Linux distributor Novell Inc. to lobby governments, national and international organizations to institute legislation and policies around software patents in order to promote innovation.

EFF is a non-profit multi-sector group tackling issues around rights protection in the digital age. Under the partnership, Novell will contribute resources to the EFF’s Patent Busting project, designed to challenge the validity of patents that suppress non-commercial and small business innovation or limit free expression online.

EFF and Novell plan to approach the issue on a global level by proposing software patent reforms to the World Intellectual Property Organization, a United Nations agency dedicated to developing balanced and accessible international intellectual property system.

“Under the current patent system, without a willingness by all companies to share their patents freely, software patents hobble open standards and interoperability, impede innovation and progress, threaten the development of free open source software, and have a chilling effect on software development,” said Nat Friedman, chief strategy officer at Novell.

The patent claims against Linux could also complicate Microsoft’s effort to get along better with the open source community and create more interoperable products.

“They want open source software companies to like them and tell everyone what a good friend to open source software Microsoft is, but it’s clear that the goal is not to embrace but to destroy,” said Dave Rosenberg, CEO of open source middleware vendor MuleSource Inc.

— with files from IDG News Service

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