OSS Watch team blog

In the last few days there have been a number of reports that Steve Ballmer (CEO of Microsoft) has made a veiled threat against commercial open source providers with respect to software patents. At least one report provides the whole context of the alleged “threat” and has given Microsoft the opportunity to clarify any potential misunderstanding. The response does not appear to indicate any misinterpretation. Microsoft reaffirmed that their intention is to license their patent protected IP, stating that “Our agreement with Novell is yet another affirmation of our policy to license our IP to others – including open source companies.”

So do software patents threaten open source?

Patents do not threaten open source any more than they threaten closed source.

“Open source” is a term used to identify a licensing model, it is not a term that represents every single software package released under an open source licence. It is therefore true to say that patents threaten individual open source software projects, but it is also true to say that patents threaten individual closed source projects too. It is worth noting that Microsoft themselves were recently ordered to pay $US1.52 billion in damages as a result of a case concerning MP3 patents owned by Alcatel-Lucen (and that’s not the only case MS have lost or are fighting).

How is Open Source Tackling the Patent Issue?

Some open source licences explicitly protect the user against patent claims, for example the Apache License 2.0 contains a patent grant for any code contained within the product. This clause allows the licensee to exercise patent rights that would normally only extend to the licensor.

The validity of this clause is largely dependent on the organisation that issues the licensed software since it assumes that the contributor of the affected code owns the patent and therefore can legally grant that patent licence. Organisations such as the Apache Software Foundation (ASF) have formal IPR management policies to ensure that all downstream users of ASF produced software are adequately protected by this clause.

Even without a patent clause within an open source licence supporters of open source would argue that the peer review process found in community developed open source projects will reduce the risk of inadvertently infringing a patent. In a closed source development model this peer review process is rarely present and so the protection it affords the software producer is lost.

One more protection for open source software is the fact that many companies, such as Sun, IBM, Oracle and Novell have granted licences to use at least part of their patent portfolios within any open source software products. That is, they will not (can not in many cases) sue open source companies. It is interesting that these companies usually retain their right to use their patents against closed source companies.

The Conclusion

It is clear that patents are an issue for all of us to consider, whether we produce open or closed source software. They are not a threat to “open source” since this is a licensing model. They are, however, a potential threat to individual software projects regardless of the licence those projects adopt.