Opinion: Open Source Intellectual Property Has Protection - InformationWeek
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7/28/2004
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Opinion: Open Source Intellectual Property Has Protection

Attorney Lawrence Rosen believes worries over patent issues shouldn't derail open source developers from going forward with projects.

I've been a worry-wart lately that patent issues could be a ticking time bomb for at least some open source projects. Witness, for example, last week's brouhaha over an old HP memo suggesting that Microsoft would unleash its lawyers on Linux and Samba in a crushing wave of intellectual property litigation.

A recent article by attorney Lawrence Rosen, however, just took some of the wind out of my sails. Rosen is an attorney, which means he knows a lot more than I ever will about patent law. He's also intimately familiar with the strategy and tactics of big-business legal weasels, and he has a realistic grasp of what they can--and cannot--do to open source developers.

Here's Rosen's advice in a nutshell: relax, take a deep breath, and keep on coding. Open source developers and software distributors do face a potential threat from companies that decide to wield software patents as weapons. But the open source community also has a few weapons of its own, and in any case companies face a long battle before they collect a penny in royalties--or force an open source project out of business.

Perhaps Rosen's most interesting observation is that some corporations might offer their own patent portfolios as a shield to protect open source projects. Corporations, he notes, routinely cross-license their patents to prevent litigation. These common (but usually secret) cross-licensing arrangements would make companies think twice before they decide to adapt litigation as part of their business models.

Although Rosen doesn't say so, it's clear that IBM, with its staggering collection of technology patents, could guarantee that the very idea of suing an open source project or distributor for patent infringement would be the equivalent of economic suicide. Throw in a few other software companies with major stakes in the open source community, notably Sun Microsystems, and you're talking about a serious shift in the balance of legal power in favor of the open source community.

In the meantime, Rosen says, it's still a good idea for open source developers to pay close attention to patent issues and to avoid potential conflicts whenever they can. But ultimately, the future may not be as uncertain as some of us had feared.

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