Journal einhverfr's Journal: Why the patent threat hasn't materialized 1
Everyone worries about software patents. Yet despite sabre rattling from Microsoft, we haven't yet seen any major patent litigation against Free and Open Source Software. This entry explores the disincentives for enforcing patents against Free and Open Source Software as well as a little more information as to which project may need to worry more than others.
The scope of patent problems in the software industry are fundamentally new. Even the auto industry which at one point had several hundred manufacturers with major patent litigation for many years did not compare to the problems today. Not only are there overlapping patent claims, but the claims themselves are somewhat vague, and not tied sufficiently to a physical machine to be readily understandable as to what, exactly, is covered. Yet for all these problems, we see a few patent infringement lawsuits in the industry and these almost exclusively fall into two categories: countersuits and small players suing big players.
While patent protections and litigation may have been a big part of the reason for the consolidation of the auto industry in the early 20th century, patents apply to manufacture of physical goods with a high barrier to entry in a fundamentally different way to the production of intangible goods with a low barrier to entry. This is why business process and software patents have been threats which have failed to materialize.
To make an automobile, you have to:
- Build a factory
- Buy lots of expensive equipment
- Hire workers
Each of these costs money up front one hopes to make back through the manufacture of the product. A successful injunction means you are not only out of marketing your product, but also out your startup costs which would be substantial. Thus the mere possibility of patent litigation is an effective way to prevent competition.
In contrast, we see Free/Open Source Software requiring none of these. It can be made from home on common household equipment with essentially no startup costs. Some folks don't even make money writing the sotware, and it isn't terribly common that the developers themselves or the distribution companies have enough assets to make suits against them worth it.
So when we look at a company that might want to use patents to forestall competition, we see three real options:
- Do nothing, but maybe issue press releases stating that these infringe on unspecified patents. The problem with this is that until one notes which patents are at issue, this doesn't have a lot of credibility or effect.
- Issue a press release mentioning which patents one believes are infringed by which products. This has more credibility but opens up the business to a number of problems. First, the open source projects are likely to look at the patents and engineer around problem spots. Then one might see re-examination proceedings started, and some patents successfully challeged. So while this offers some short-term gains, it offers no long-term benefits and has some serious problems.
- One could actually sue over patent infringement. This would have more of an effect still than #2 above, but it has the same drawbacks. Furthermore, it is far more expensive than merely announcing the patent infringement issues because actual, costly patent litigation ensues along with, very likely, a great deal of pro bono work for the defence. Finally, it is even more risky because there is the chance that either the court or the patent office will invalidate the patent.
In these cases, litigating patents against Free or Open Source software doesn't make any strategic sense. No rational player will seek to use patents in this way. However, patents are a liability for big players (which is why I support Red Hat's patent pool). For larger players, it is typical for patents to be mostly useful in defence, but risky in offence. However, large players are vulnerable to patent lawsuits because they CAN pay royalties, etc. Consequently nearly every suit we see is by a smaller business against a big business.
I have concluded that software patents are useless against Free and Open Source software simply because they are usually easy to work around and the damage done by actual litigation is fairly limited.
Of course, IANAL, TINLA, and if you don't get that you shouldn't be reading Slashdot!
Who has to worry more (Score:2)
BSD-licensed projects which are courting commercial re-use are the projects which need to worry, as do GPL projects which follow a dual-license model. Community projects for the most part which are not interested in commercial re-use seem to my mind to be fairly robust against the software patent threat.