We're All Trapped in the Patent Holders' Nets

Michael J. Jordan, Linux Online Managing Editor

February 27, 2007

The Novell-Microsoft pact has made us all aware that we can be clubbed over the head by a Microsoft intent on protecting what it calls its "intellectual property"

Reading between the lines of some statements made by Microsoft CEO Steve Ballmer on February 15, underscores the fact that they may be planning to swing the patent bat against us at some point. But this is nothing new. Not long after signing the now infamous agreement, Microsoft and Novell started debating publicly about exactly what the agreement meant. On November 16th of last year, only two weeks after the agreement was signed, Ballmer pretty much said that Linux users "owed them" for their intellectual property and that we were going to have to pay up.

But if there is such a thing as poetic justice, we saw it this past Thursday. Microsoft was ordered to pay a billion and a half dollars for infringing Alcatel-Lucent's MP3 patents

In this world where the big fish eat the little fish, it's interesting to see how the little fish will sometimes bite back. But this is no reason to gloat. Above the fish in the food chain is the patent holder. He has the net that can snare us all. As most open source and free software developers will tell you, and even most IT professionals probably feel privately, software patents are bad.

Apart from making real IT innovation almost impossible, which is the number one problem, there is residual negative impact on our society. First, suing becomes the main revenue stream for unproductive and irrelevant companies. SCO is the best example that we in the Linux community know. While SCO at least attempts to produce something, some patent holders, it seems, want to be the modern-day equivalent of the large landholding classes of the past. They don't do anything but employ lawyers to strong-arm potential violators. Like those to the manor born, they, essentially, just want to collect 'rent' and live from that. If their actions impede progress, then too bad for progress, as far as they see it.

And I never realized how much innovation and progress in IT could be affected until I read this recent piece on the problem. It talks about Ogg Vorbis, a favorite music format with those of us in the Linux community. Because the Alcatel-Lucent ruling deals with MP3, many are looking (including Microsoft, ironically) to Ogg as an alternative format, since it is known to be unencumbered by patents and therefore royalty-free. Well, I should probably now rephrase that to say believed to be unencumbered. Because, as you might already know and can probably imagine, some software patents are so general that it's almost impossible not to violate them. Chris Montgomery, better known as 'Monty', the inventor of the Ogg Vorbis format, has said that he has had trouble convincing companies to adopt the format due to the potential for legal problems. The Ogg situation really demonstrates for me the chilling effect the patent problem can have on innovation.

But all is not gloom and doom. Fortunately, in Europe, they realize how bad of an idea software patents are and last year the European Parliament rejected the Software Patent Directive, which would have effectively brought US-style patents to software processes. This was defeated with the help of grass-roots lobbying efforts of open source and free software developers. Hopefully, we can bring that kind of grass roots effort to foster reforms of the US patent system.

In a world where Microsoft can threaten Linux companies with patents one week and then pay a billion and a half dollars for patent infringement the next, it seems like it's in everybody's interest to reform a highly dysfunctional patent system. It's time we all stopped being victims of patent holders.

Michael J. Jordan is the Managing Editor of Linux Online. He can be reached at Michael.Jordan**AT**linux.org