Now we have Ed Walsh on patents an Open Source. He's an IP lawyer in Boston. This is the "what's the catch" talk of the day. He defines the FSF folks as in the ideologue camp. Then you have the people creating OSS, the developers. Finally, you have the people distributing OSS software (bundlers, like RedHat). You might also classify them as integrators. Finally, there are the users (and the employers of the users). So to answer a patent question about OSS, you have to figure out where people sit (to find out where they stand).
A separate group are patent "trolls" (i.e., the fine folks at Eolas - or, given this absurd filing, Jeff Bezos. So - Ideologues, developers, distributors - all things being equal, they might prefer that they not be patents at all.
Integrators: Building products on base of hardware/software. Wants "base" products to be free of restrictions. May want to distribute a product with restrictions. Does not want costs, wants freedom to operate.
Users: Want freedom to operate. Want to keep using software, don't want costs - direct or indirect.
Freedom to operate - is OSS more risky? The main risk is infringement of IP (or at least the perceived risk of that). Many of the proprietary vendors hold lots of patents (IBM, MS, Sun, etc). There haven't been many infringement cases yet - the SCO case is a bad example of what could come about. [ed] - I'll note in passing that Jonathan Schwartz of Sun has said "I like IP" - which means that even the supposed friends of open systems could easily jump ship.
First rule of litigation: Sue someone solvent (i.e., follow the money). Many of the larger vendors are using patents as "trading cards" - the rest of the field has to "pay to play" (settlements). With widespread distribution of source, (alleged) infringement is easy to spot.
What about community countermeasures? There's a public patent foundation that challenges egregious patents. There's also the Open Source law Center and the OSDL's legal defense fund. There's also infringment insurance and indemnities offered by vendors. As well, some of the OSS vendors (RedHat, for instance) are getting patents - potentially as a defensive measure (the MAD theory of patent acquisition). Many patents are bad simply because the PTO primarily looks for duplicative patents, not for prior art. This is a problem in a new field (like software). What about the "Patent Pledges" of some of the big vendors (IBM, Sun, MS)? They are claiming that they won't assert their patents against the OSS community - there are potential anti-trust limits on large scale agreements this way. Bearing in mind that a patent assertion typically costs $2M, and most OSS projects are (financially) poor, this can easily be taken as grandstanding.
The GPL has an implied patent license
- Uncertainty about what is licensed and to whom
- Your contributions, anything in the code, or anything in the code or later added to it?
- Your chain of title or the entire open source community?
What risks surround IP really depend on which OSS license you use. For instance - how do you manage patent cross-licenses and obligations under the GPL? How can you know who you aren't supposed to sue?
Ideologues don't like patents, never will. Distributors don't like patents, but are pragmatic. Integrators want it both ways, need a rational plan for their patents and those of others. users don't want to deal with patents, but need a rational plan.