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Path to software innovation leads away from patents

A patent plea at LinuxWorld ended with a call to Microsoft to back its open source rhetoric with some action.

SAN FRANCISCO -- At the LinuxWorld Conference & Expo this week, it didn't pay to be a software patent.

Whether it was a keynote address by Red Hat Inc.'s deputy general counsel Mark Webbink or a conference session led by Open Source Risk Management founder Daniel Egger, the software patent was slammed as a hindering component to innovation in the industry.

"There is a real disconnect between the concept of innovation and the concept of patents in software," Webbink said, adding that as far as innovation was concerned, software patents would have stifled many of the programs that users take for granted today.

Programs like VisiCalc and WordStar were not patented, and gave way to invaluable applications like Microsoft Word and Excel, Webbink said.

"Our word processor today for some of us would have still been pen-and-pad," Webbink said, of the way things could have been if software patents were as abundant in the past as they are today.

Indeed, the U.S. Patent and Trademark Office has issued, to date, more than 150,000 software patents, at a pace of 10,000 to 12,000 issued per year on average.

As an example of how the software industry has filed patents in excess, Webbink displayed a slide that compared the pharmaceutical industry to Microsoft. Two drug examples, Zocor and Viagra, each had one patent, while Microsoft's Cursor Position and Movement had 14.

As further evidence of over-saturation of software patents, Webbink pointed to a report from researchers James Bessen and Robert M. Hunt, "An Empirical Look at Software Patents," which found software patents don't correlate to innovation, they correlate to keeping the competition back.

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March of the penguin lawyers

The focus on software patents was also a signal that this was not the LinuxWorld of old.

Gone were the penguin suits and in their place were serious keynotes from industry leaders like Oracle president Charles Phillips, who touted on Tuesday the belief that Linux was already well established in the enterprise and that big league topics like grid computing were the next challenge on the horizon.

"You know LinuxWorld has changed when the attorneys are up here talking," Webbink said.

However, in an era where tens of thousands of software patents are expected to be filed each year, an army of attorneys may be necessary to wade through each of them to make sure none of those filed infringe on the patents of competitors.

"Do the math, it's $5,000 in costs per patent," Webbink said. "Surely all of those don't read on my company's application, and they probably don't, but knowing which do and which don't is challenging."

For all of the challenges Webbink mentioned in his keynote, however, Egger explained the factors that would contribute to environment with less litigation.

These included the fact that open source code is largely non-infringing and highly modular; that developing non-infringing subs for any module is relatively inexpensive; many soft patents issued before 2000 are vulnerable to challenge for obviousness of prior art; and finally that IBM and other high profile Linux distros will defend their $35 billion market.

"Companies like IBM and Red Hat, Novell, HP and Oracle, and now even the mobile device companies, simply cannot afford Linux and OSS to become unusable -- they've already invested hundreds of millions of dollars in these technologies," he said, adding, "Microsoft is probably bluffing."

If Microsoft is bluffing, Webbink took them to task with a few requests to conclude his presentation.

"We need to ask Microsoft to respect open source; we heard in the last year that they do respect open source … and we'd like to take them at their word, and they can prove that they are sincere in what they are saying," Webbink said.

Webbink said to prove its sincerity, Microsoft should issue a public, written commitment that states it will not threaten independent developers with patent infringement claims.

"The other issue goes to the customers. If one lesson we should have learned from the SCO Group is that threatening your own customer with litigation is not good biz practice. Let's leave customer out of this debate," he said. "If Microsoft has intellectual property that needs to be respected, then come to Red Hat, Novell, our partners -- but leave the customers out."

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