David A. Wheeler's Blog

Fri, 14 Apr 2006

Open Invention Network (OIN), software patents, and FLOSS

Software patents continue to threaten the software industry in the U.S. and some other countries. They’re especially a threat to smaller software development organizations and individuals (who do most of the innovating), but even large software organizations are vulnerable.

If you’re not familiar with the problems of software patents, here’s some information and resources to get you started. The FFII patented webshop is a short demonstration of why the problem is so serious — practically all commercial websites infringe on patents already granted (though not currently enforceable) in Europe. Bessen and Hunt found good evidence that software patents replace innovation instead of encouraging it. In particular, they found that those who create software patents are those who do less research, and the primary use of software patents appears to be in creating a “patent thicket” to inhibit competition. There’s also the evidence of history; software is the only product that can be protected by both copyright and patent, yet there’s general agreement that the software industry was far more innovative when patents were not permitted. Copyright is sufficient; there’s no need for software patents, which simply impede innovation. Software patents were not even voted in; software patents are an example of U.S. courts creating laws (which they’re not supposed to do). India and Europe have (so far) wisely rejected software patents. Some large companies (such as Oracle Corporation and Red Hat) have clearly said that they oppose software patents, but that they must accumulate such patents to defend against attack by others. Some organizations are working against software patents, such as the FFII, No Software Patents, and League for Programming Freedom. Groklaw has a massive amount of information on software patents. Yet currently the U.S. continues this dangerous practice, and so people are trying to figure out how to deal with it until the practices can be overturned. In particular, free-libre / open source software (FLOSS) developers have been trying to figure out how to deal with software patents, and there has been some progress on that front.

Recently a new organization has been added to the mix: the “Open Invention Network” (OIN) . Its website is short on details, but Mark H. Webbink’s article “The Open Invention Network” in Linux Magazine (April 2006, page 18) gives more information. Webbink reports that OIN was founded by IBM, Novell, Philips, Red Hat, and Sony, for two distinct purposes:

  1. “To provide a network, or commons, around Linux and Linux-related applications; and
  2. To assure that the resulting, large, patent-free “safe area” remains large, safe, and patent-free.”
Joining OIN costs nothing; OIN’s November 2005 press release says that joining OIN requires that the participant agree to “not assert its patents against the Linux operating system or certain Linux-related applications.” In return, the participants get to use patents owned by OIN — some of which may not be related to Linux or the key applications at all, but may be valuable to them. In particular, OIN has the Commerce One patents (donated by Novell) that cover web services, which potentially threaten anyone who uses web services. By having a number of participants, OIN reduces the risks of software patent lawsuits to all users and developers of FLOSS products — whether they’re an OIN member or not.

The list of key applications considered by OIN, according to Webbink, includes Apache, Eclipse, Evolution, Fedora Directory Server, Firefox, GIMP, GNOME, KDE, Mono, Mozilla, MySQL, Nautilus, OpenLDAP, OpenOffice.org, Perl, PostgreSQL, Python, Samba, SELinux, Sendmail, and Thunderbird. Of course, it’d be nice if OIN protected everything with a FLOSS license, not just a listed set. Webbink says they chose to not do that because the “size of the safe area is critical to OIN’s future. If the commons is too narrow, it offers little protection. If it’s too broad, it makes it difficult for a company to join the commons…” Then, if someone tries to bring a patent infringment lawsuit against any of these projects, the OIN can take various kinds of actions. You can get more information via the Wikipedia article on the Open Invention Network (OIN). I suspect that even a FLOSS product that’s not on the list might still get some protection, because a software patent claim brought against that product might also apply to one of the covered applications… and OIN might try to pre-empt that. But still, even given its many limitations, this is a step forward in reducing risks of developers and users.

Another patent commons project for FLOSS programs is the Patent Commons Project, whose contributors and supporters include Computer Associates, IBM, Novell, OSDL, Red Hat, and Sun Microsystems. This is a much looser activity; it is simply a repository where “patent pledges and other commitments can be readily accessed and easily understood.”

The U.S. Patent and Trademark Office (PTO) has had some talks about using FLOSS as examples of prior art, as well as other ways to try to reduce the number of unqualified yet granted patents. I guess it’s good that the PTO is trying to prevent some invalid patents from slipping through; it’s better than the current practice of rubber-stamping massive numbers of patents that are actually illegal (because they actually don’t meet the current criteria for patents). It’s particularly galling that someone can read another’s publicly-available code, get a patent, and then sue the original creator of the code into oblivion — it’s not legal, but those who do it aren’t punished and are usually handsomely rewarded. (Yes, this happens.) How does that help advance anything? But the notion that the PTO cannot currently look at prior art, due to its own boneheaded rules and absurd timelines, merely shows how broken the whole process is. I suspect patents are worth their problems in some other industries, but in software we’ve now thoroughly demonstrated them as a failure.

The U.S. Constitution only permits patents when they “advance the arts and sciences”; since this is not true for software patents, software patents need to be abolished immediately. Still, until that happens, half-steps like OIN and getting the U.S. PTO to reject illegal patents (for a change!) will at least reduce some of the risks software developers face.
