Bowling for Linux: The Patent Risk!

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Is your company developing software for the Linux operating system? If so, your company needs to understand the implications and the risks involved with the intellectual property of Linux. I'm not directly referring to the SCO lawsuit against IBM that is currently wending its way through the courts; I'm talking about the "legitimate" intellectual property patents that are held by a variety of vendors, many of whom are not direct contributors to the open source movement. These patents may, in future, create big problems for the developers and users of Linux applications. Is your company one of these?

What Are These Risks?

For the first time, an independent company of patent experts has investigated the Linux kernel. This company, called Open Source Risk Management (OSRM), sells Linux liability insurance and has written a report that identifies 283 software patents not yet reviewed by the courts that could potentially be used to support claims of patent infringement against Linux. The report, entitled "Mitigating Linux Patent Risk", does not portend the demise of the open source movement; it simply cautions companies that the risks for developers are real, potent, and potentially financially damaging.

Bowling for Linux--Striking at Intellectual Property Rights

If you have been following my ongoing "Bowling for Linux" columns (see articles listed below) in MC Mag Online, you already know that the history of UNIX, which SCO Group has used to support its claims of patent and copyright infringement by IBM, makes the legacy of Linux to the UNIX operating system seem like a tempest in a teapot. IBM is being sued for billions of dollars because SCO claims that IBM has "stolen" vital UNIX code and released it to the Linux community through the open source mechanism. SCO has already attempted to wrest UNIX licensing fees from Linux users, and Microsoft is helping fund the extortion through its massive purchase of UNIX licenses for past interfaces that it created for its Windows platform. IBM says the SCO case has no merit and is vigorously contesting the lawsuit, a legal action that will undoubtedly stretch out for years to come.

However, until this recent report, no one had ever studiously examined the Linux kernel for other potential patent claims. "Mitigating Linux Patent Risk" does exactly that. And the fallout of this examination may cause us all to reconsider the nature of software intellectual property and what legal reforms the industry needs to address.

Key Findings

Not surprisingly, OSRM says that IBM holds the largest number of patents on Linux-impacting technologies. The company holds 60 patents that could conceivably threaten the Linux kernel.

But Microsoft Corporation owns 27 of the potentially threatening patents, and according to an internal memo leaked by HP executives in 2002 that is quoted by OSRM, "Microsoft intends to sue companies shipping free and open source products that potentially violate their patents."

HP too holds a number of untested patents that may impact Linux technology.

The End of Open Source?

According to the report, "while patents certainly do not spell doom for royalty-free distribution of Linux, there is a level of patent infringement risk that Linux users and developers should be mindful of and prepared to address."
So what are OSRM's recommendations? According to OSRM, end users and developers should begin taking these five steps to minimize the Linux patent threat:

  • Support structural reform of the current United States patent system.
  • Recognize that patent disputes can and will be resolved in ways that comply with the letter and spirit of free and open source licensing.
  • Contribute to historical databases of previously "inaccessible prior art" to help prove that non-inventive patents are invalid.
  • Be prepared to "design around" patents when necessary.
  • Obtain patent infringement defense insurance.

What's Wrong with the Patent Process?

The former director of the United States Patent and Trademark Office (USPTO), James Rogan, has identified that the our patent system is in a state of "crisis." The USPTO can only allocate a few hours to reviewing each application before it issues patents, and consequently it often issues patents for "non-inventions." In short, they issue patents for technologies that already exist, but that their cursory review did not reveal. Meanwhile, the cost for proving that a particular patent is a "non-invention" falls at random on alleged "infringers," and is in fact an arbitrary tax that burdens true innovators. For instance, the cost to resolve a patent dispute in the court systems costs an average of $2.4 million for each case, according to the American Intellectual Property Law Association.

As a result, a lot of voices are calling for the reform of the United States patent system, including the Federal Trade Commission, the National Academy of Sciences, and numerous independent legal and economic experts.

Faltering System Impedes Innovation

However, while the system falters, this impact is having severe detrimental effects on the software industry. The Linux kernel--as well as other popular products derived through the open source movement--is a highly visible target where such an impact may prove crippling.

"Given the current state of the patent system, it would be, if not impossible, prohibitively expensive to challenge each of the 283 patents identified as posing a direct threat to Linux," said Dan Ravicher, OSRM's lead outside patent counsel. Ravicher is also senior counsel to the Free Software Foundation and Executive Director of the Public Patent Foundation.

"Although I have serious doubts that any of them contain valid claims covering technology critical to Linux, the high costs of patent litigation would make proving that in court a severe burden for some and, unfortunately, an impossibility for others. The system is punishing the very people it was designed to help, and it needs to change; but in the interim everyone must figure out a way to deal with it."

Who Owns What?

Both Ravicher and OSRM have refused to identify the specific patents identified in the OSRM study. According to OSRM, publishing the names of the patents could make it easier for a Linux customer to be sued for "willful infringement," which could then lead to increased damages in the event of a successful lawsuit.

However, it is interesting to note that Ravicher's study found no patents held by SCO that could pose a threat to the Linux kernel.

So, even though the SCO legal debacle may ultimately clear IBM and users from UNIX royalties, the future for Linux legal battles is potentially far from over. If you are looking to Linux as a development platform for your product or your application, be forewarned: There is a future for Linux, but it comes with a potentially high price tag. You may pay for the source code not with a check, but with long hours and extensive lawyer's fees.

Thomas M. Stockwell is Editor in Chief of MC Press Online, LP.

Past "Bowling for Linux" Articles in MC Mag Online

•  Bowling for Linux: AT&T Reaches Out as Artifact Trounces SCO Claim

Bowling for Linux: Episode V

Bowling for Linux: Episode IV

Bowling for Linux: Episode III

Bowling for Linux: Episode II

Bowling for Linux