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One of the enduring soap operas this year has involved the ongoing patent infringement threats by Microsoft against “Linux, OpenOffice, email, and other open source software.” According to Microsoft, 235 of its (unnamed) patents are being infringed, and it should be entitled to be paid for this use of its intellectual property. Steve Ballmer believes that Microsoft owes it to its stockholders to file patents to protect its innovations, and then to assert these intellectual property rights in this way, and at this time.

Of course, Linux is based on Unix, which has been around for decades, as have many flavors of Unix created by IBM, HP, Sun and others. Curiously, Microsoft is not now, and never has, alleged that those systems infringe upon these same patents. Apparently, its stockholders do not expect it to assert patents against Unix vendors or users - just open source vendors.

Equally curiously, if not more so, is the fact that until a few years ago Microsoft filed only a small number of patents annually, in comparison to the thousands of patent applications per year that it is filing now. Apparently, its stockholders did not expect the fruits of Microsoft’s innovation to be protected and asserted in this way until now.

It is true that many other major vendors file many patent applications each year. But increasingly, IT vendors secure such patents purely for defensive, and not offensive purposes. As a result, patents are today being secured by inventors not to protect their inventions from infringement, but to secure the practical right to infringe upon the inventions of other inventors. If one vendor objects that another vendor’s products are violating its patents, the second vendor simply points to the patents in its own portfolio that are inevitably being infringed by the first vendor’s products. The result? At most a cross license, often with little or no money actually changing hands.

Linux, of course, includes enormous innovation - and more creativity is contributed every day. But the community does not file patents on its innovation. After all - why would it? OSS innovation is intended to be used by all, and for free. And patents by their nature exist to prevent others from using innovation, or to charge for the privilege of doing so.

This leaves open source software, and particularly community software (as compared to OSS that is supported by major vendors), more vulnerable to those that oppose it, or are threatened by it.

All of which goes to show that the whole rationale for the existence of software patents has turned upside down, and inside out. Patents are secured not to protect inventors, but to protect infringers - and to rob OSS users of the ability to benefit from innovation that is intended by its inventors to be freely available to all.

It’s a sad situation, and one that will soon be at least alleviated by legislative reform. But will that be enough?

My own opinion is that software patents not only cause harm, but serve no useful purpose in fostering innovation at all. That’s been my experience over almost thirty years of representing software companies, as I’ve written about in greater detail here.

Maybe, someday, the US will adopt the view of the EU that software is not entitled to patent protection, and can be adequately protected (as it can) by trade secrets and patent protection.

For my money, that would be a happy day.

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• Andy Updegrove

  

  Andy Updegrove is a partner and founder of Gesmer Updegrove LLP, a Boston-based technology law firm, and has represented and helped structure more than 80 worldwide standard setting, open source, promotional and advocacy consortia over the past 20 years. He has also represented hundreds of both emerging as well as established technology companies, and is the founder and editor of both the popular website http://www.consortiuminfo.org and the widely-read Standards Blog

• Karen Copenhaver

  

  Karen Copenhaver is a partner in Choate, Hall & Stewart LLP ‘s Business & Technology practice focusing on technology transfer and licensing of intellectual property with a specific emphasis on open source business models. Most recently, Copenhaver was executive vice president and general counsel at Black Duck Software, Inc.