software patents = waste

A couple weeks ago, Microsoft publicized some details about the number of its software patents currently being infringed upon by open source software. It was a follow-up to the Microsoft-Novell patent cross-licensing and royalties deal last November describing how Novell was infringing on Microsoft’s patents by distributing its SUSE Linux variant. There aren’t many solid details, only that open source software is currently known to be infringing on 235 Microsoft patents.

In this scenario, Novell is distributing open source software and charging a fee for associated services, which is allowed under many open source licenses (most commonly the GNU General Public License). Microsoft says that its patents are infringed upon by this software, which means that customers using it could be subject to patent infringement claims. The deal with Novell essentially indemnifies Novell’s customers against Microsoft’s claims via a large sum of cash handed over from one company to the other and with continuing royalty fees flowing from Novell to Microsoft. It’s the price to pay to avoid getting your pants sued off by Microsoft.

News like this reminds me of what an enormous waste of resources software patents have become. (Actually, I think they’ve always been a waste). It’s rather pathetic. Silly lawsuits bubble up from time to time, but it seems that we operate under a policy of deterrence in the software industry: corporations spend billions in administrative and legal fees to amass patent portfolios for the sole purpose of deterring patent claims against them. I’m not the first one to call it an arms race. Cross-licensing deals like the Microsoft-Novell deal happen now and then; I see these as fairly useless transfers of money from one entity to another. At least it keeps a healthy business going for the patent lawyers.

There are patent protections for consumers of open source software currently brewing, however wasteful such patents might be. Version 3 of the GNU General Public License (GPL) adds protections for end-users of GPL-licensed software against claims of patent infringement from those who distribute the software. For example, under the current version of the GPL, it’s perfectly legal under the terms of the license for me to offer you up some sweet new open source software and once you download it and install it and begin to rely on it for your production operations, I sue your pants off because I have a patent for an algorithm used in that software. Unethical? Ruthless? Probably. But totally legal. Thankfully, GPLv3 extends a royalty-free patent license from all contributors to a licensed work, much like the Eclipse Foundation’s Common Public License.

So maybe I should start collecting patents to protect myself? It is America, after all. We all need protection.