Round-up: Experts dispute effectiveness of open-source patent pools

["Florian Mueller" <florian.mueller@nosoftwarepatents.com>]

EXPERTS DISPUTE EFFECTIVENESS OF
OPEN-SOURCE PATENT POOLS

Analysts, community leaders and campaigners comment skeptically
on the Open Invention Network and the OSDL Patent Commons --
"Those announcements don't put us closer to a real solution, but even further away"

(19 November 2005) – Recent announcements of the Open Source Development Labs' (OSDL) www.patentcommons.org site and the Open Invention Network (OIN, www.openinventionnetwork.com) claimed to reduce or even eliminate threats from software patents to open source, but have come under fire from industry analysts as well as free and open-source software (FOSS) advocates.

Florian Mueller, the founder of the NoSoftwarePatents.com campaign that successfully opposed a European patent bill this year, believes that "those announcements by the OIN and the OSDL grossly overstate the effectiveness of those partially ill-conceived approaches. By misleading people they don't put us any closer to a real solution, but even further away from one."

In a guest commentary on popular IT discussion site Slashdot, Mueller explained his skepticism in detail:
http://yro.slashdot.org/article.pl?sid=05/11/15/1715235&tid=166

He argues that certain patent-related promises made by such companies as IBM, Sun and CA had serious shortcomings, but "even the best pledges can't solve" a number of issues outlined in his position statement. When the OSDL announced its Patent Commons project in August, it was also viewed as "spitting in the wind" by Bruce Perens, the author of the Open Source Definition, since the "enemies" of open source would never contribute their own patents. In Mueller's opinion, "retaliatory arsenals" -- portfolios of patents with which an open-source entity might countersue a company like Microsoft -- "could indeed make a major difference", although they "wouldn't help against trolls that have no products of their own. And a strategic aggressor could secretly arrange for such a troll to do the job."

Like Perens, Mueller also believes that the only solution to the software patent problem is new legislation: "If the same companies who are behind those initiatives were serious about it, the problem could be solved politically, but those organizations and especially their in-house lawyers don't want to." Moreover, Mueller is worried that the OIN would primarily "serve the interests of its five shareholders", some of whom might want to gain "effective control over parts of the open-source universe". Developers working on such well-known FOSS projects as the PHP programming language seconded Mueller's views in their blogs.

On Friday, online newsletter Linuxgram cited an unnamed "informed source" which said that the OIN's funding only amounted to $40 million, down precipitously from the $280 million originally envisioned by its founders. The newsletter claims that "in these days of billion-dollar settlements, $40 million just doesn't go very far" when one intends to acquire intellectual property rights.

The OIN's shareholders include IBM, Sony, Philips, Novell, and Red Hat, which according to an SEC filing kicked in half of the OIN's financing alone. Nokia and Yahoo are reported to have dropped out between the OIN's foundation and its first announcement. Matt Asay, a vice president of open-source company Alfresco and former executive of Novell, said in his weblog that the OIN is "shamefully underfunded":
http://weblog.infoworld.com/openresource/archives/2005/11/open_invention.html

Asay also says that the OIN's backers should either get serious about this effort or "stop wasting our time and bandwidth on press releases".

Concerns over the OIN's funding as well as its agenda have previously been voiced by analysts. A weblog quotes Laura DiDio, a Yankee Group research fellow, as saying that the OIN's announcement raises more questions than it answers:
http://www.informationweek.com/blog/main/archives/2005/11/new_linux_ventu.html

DiDio, who has been accused of spreading "FUD" (fear, uncertainty and doubt) by some activists because of her long-standing concerns over IP issues for Linux, added: "All you need is one successful suit against Linux for the game to change."

Research firm Gartner also claims that the OIN "raises issues":  
http://www.gartner.com/DisplayDocument?doc_cd=136346

According to Gartner, "software patents pose the single largest threat to the open-source software model", and "the Linux community will have few defenses against the power of Microsoft, if the software giant should seek to claim royalties from the use of allegedly misappropriated IP."

In a list of five recommendations for the OIN to succeed, Gartner calls on the OIN to provide more information on its business model and the licensing terms on which it plans to grant royalty-free usage rights to its patents.

NOTE: Florian Mueller founded the NoSoftwarePatents.com campaign in 2004 with the support of three corporate sponsors, and managed it until March of 2005. He then gave his website to the Foundation for a Free Information Infrastructure (FFII), the leading European pressure group that opposes the patentability of computer programs.

CONTACT INFORMATION
Florian Mueller
florian.mueller@nosoftwarepatents.com