Despite recent efforts by IBM and Sun Microsystems to make thousands of software patents available to open source developers, patents remain a major source of concern, according to a panel of open source luminaries who discussed the issue at the OSDL Enterprise Linux Summit in Burlingame, California.
"Software patents are clearly a problem, and I think it's a problem that the open source community has been pretty aware of for the last five years," said Linus Torvalds, the lead developer behind the Linux kernel project. "The good news is that a lot of proprietary vendors are starting to see it as a problem as well."
Last month, IBM made 500 of its patents available to the open source community, saying that this would promote innovation in the field of information technology. Sun Microsystems followed suit two weeks later, releasing more than 1,600 patents of its own.
More companies are expected to follow, according to panel host Stuart Cohen, who is chief executive officer of Open Source Development Labs, (OSDL) the consortium that employs Torvalds.
Other members on the panel echoed Torvalds' criticism. There are an estimated 150,000 to 300,000 registered software patents in the U.S. alone, and many open source developers would like to seem them invalidated. They believe that many such patents are frivolous and that copyright law is a better mechanism for protecting software innovations.
Part of the problem is that the U.S. Patent Office has been lax in granting patents, said Mitchell Kapor, a founder of Lotus Development and a prominent backer of the Mozilla browser. "There have been tens of thousands of bad software patents issued which never would have been issued if the Patent Office had actually been following its own rules," he said.
Ultimately, these bad patents may come back to haunt the open source community, Kapor predicted, saying that Microsoft eventually will be driven to launching wide-ranging patent lawsuits, which he called "patent WMDs," (weapons of mass destruction) against open-source projects. "Their business model no longer holds up in an era where it's clear that open source is simply an economically superior way to produce software," he said. "Of course they're going go unleash the WMDs. Why would they not?"
Torvalds, for his part, was reluctant to make predictions. "I'm the anti-visionary. I distrust people with visions," he said. "You don't see what's right in front of your face and you don't see the technical issues that face everyday users."