Software Patents Redux

It's a coincidence that last month's "On the Docket" discussed the dangers of software patents just as a troubling headline appeared: according to an exhaustive study by the Public Patent Foundation (http://www.pubpat.org), the Linux kernel infringes 283 patents.

It’s a coincidence that last month’s “On the Docket” discussed the dangers of software patents just as a troubling headline appeared: according to an exhaustive study by the Public Patent Foundation (http://www.pubpat.org), the Linux kernel infringes 283 patents.

Although that news seems dire, having this information in hand is a good thing for at least two reasons. It raises awareness of the dangers that software patents pose to free software, and it quantifies the intellectual property risk associated with the Linux kernel, so that companies like Open Source Risk Management (OSRM, http://www.osriskmanagement.com) can offer risk insurance to organizations that want to deploy Linux (for more on OSRM, see August 2004′s “On the Docket”). Although OSRM’s insurance isn’t a product designed for individuals at $30,000 or more annually, the insurance does permit large organizations to make plans based on known risks, yielding a fixed insurance premium rather than unknown litigation expenses. In years past, Linux risks have gone unmeasured, while commercial software companies have been able to provide comforting assurances.

For example, if someone sues a user of a Microsoft product for patent infringement, Microsoft will likely come to the user’s aid during litigation to prevent the devaluation of Microsoft’s products. Microsoft’s cost of defending itself is built into the price of their commercial software. However, up until now, Linux vendors haven’t been in a position to vigorously defend their products, although Red Hat has promised to rework their software to avoid patent infringement, if necessary.

So, despite the headlines in the Wall Street Journal and elsewhere, the 283 patent “infringements” aren’t all that serious. (For the moment.) One-third of the patents are owned by Linux supporters; none of the patents have been validated in federal court; OSRM isn’t disclosing the identity of the patents, so patent owners must find infringements themselves; and there’s serious doubt that any of the patents include valid claims covering technology critical to Linux. That’s the opinion of Dan Ravicher, the New York patent attorney and the head of the Public Patent Foundation who conducted the review of the Linux kernel for OSRM.

Still, no one is ignoring the news. The city of Munich, for example, which recently made a splash by announcing it would move entirely to Linux, has put its plans on hold because of fears of open source software infringing up to fifty patents (see http://kwiki.ffii.org/Limux040730En). Ravicher suggests that this may be no more than a form of civil disobedience — a protest against current political efforts to legalize software patents in Europe — given that it’s highly unusual to preemptively change plans based on an ill-defined possibility of infringing someone’s patents.

If you’re told that you are infringing a patent, you have (essentially) four choices: challenge the patent as invalid before the Patent and Trademark Office (PTO); prove in court that what you do doesn’t infringe; purposely change what you’re doing so you know you’re not infringing; or, get a license from the patent owner. The first choice is called a re-examination request. It costs about $20,000 to $300,000 in legal fees, and is generally much less stressful than actual litigation. About 12 percent of the patents that the Patent and Trademark Office re-examines are canceled as invalid. Another 55 percent are narrowed, making it harder for the owner to bring a lawsuit for infringement.

The key to a successful re-examination request is locating prior art for the patent you are challenging. Prior art is evidence of something that was in existence before the patent was filed that does what the patent claimed was new.

Grokline — thanks to Pamela Jones, again [see Ms. Jones' "Shutdown" column on the last page] — is working to create such a pool of prior art that lawyers working for open source interests can draw on to defeat or narrow patent claims, either proactively or in the defense of a patent infringement suit.

Grokline focuses on the history of Unix, which, while admittedly a large topic, won’t cover all of the patent troubles that free software programs might run into. Further efforts are likely in the future, in part because Grokline and others are working on simple training materials that can teach a developer how to research patents appropriately.

Besides contributing knowledge, it’s important for technical experts involved with Linux and other free software programs to be aware of patent issues so that they don’t feel overly vulnerable. Anyone threatened with a lawsuit should contact groups like the Open Source Development Labs and the Public Patent Foundation before signing any confidentiality statements that would prevent disclosing information about potential infringement.

The patent system is widely recognized as being in “crisis.” Invalidating individual patents and spreading the monetary risk of patent infringement are both important. But the changes that are most needed will come only through Acts of Congress. Congress creates the regulations that govern the PTO, they occasionally draft laws that reverse what courts have said about patents, and they can make wholesale changes if they’re convinced of the need — and find the will to act.

Nicholas Wells has written numerous books on Linux, Apache, network security, and related topics. Email him at nwells@law.gwu.edu.

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