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Jan. 25, 2010

Some observers in the Linux community feel that on average, the open source community does a rather poor job at protecting itself from patent infringements. Over the past few years, Andrew Tridgell, a Samba developer and systems integrator has had quite a bit of experience dealing with some nasty legal issues while trying to get Linux servers communicating with Windows servers.

Still, Tridgell now sees the exploitation of software patents as the biggest threat to the open source movement, and there are a few more that think the same.

"I strongly feel that software patents are unfortunately going to be more and more of a problem for the free software community," Tridgell said in a presentation at Linux.conf.au 2010 in Wellington, Australia.

He added "I am also concerned that patent attacks on the free software community are going to become more common in the near future as well. The software industry is changing and changing very rapidly. And we need to adapt."

Tridgell's comments are very similar to some remarks made by his Samba co-developer Jeremy Allison last Friday suggesting that Microsoft would actively use its patent portfolio to fight off netbook and mobile phone competitors.

While many online forums spend time trying to find prior art examples when an open source project is threatened by a patent claim, people often don't look any further than the abstract, he noted. "The abstract is often very different to the actual claims."

Righteous anger has its limitations as a practical strategy.

"It's your job not to just blow your stack at the whole patent system. For most free software projects, certainly for the vast majority of projects in your average distribution, one death is enough."

To counter such threats, Tridgell offered some guidelines on how to construct responses to claims of patent violation, though he was careful to point out he was not a lawyer.

Tridgell argues that several attempts to displace patent claims by trying to invalidate them by demonstrating prior art were not well thought out.

"The prior art defence is really hard to pull off. Prior art is not a panacea. It is very hard to kill all claims. You've got to knock them off completely.

The best defence to this is to identify the specific claims inherent in a patent, and demonstrate that a given piece of software doesn't actually perform the tasks specified in those claims.

Proving that software doesn't infringe is a lower barrier than trying to prove the patent invalid, Tridgell said.

"For a non-infringement defence, you only have to care about the independent claims. For prior art or invalidity, you must demolish every claim in the patent completely," said Tridgell.

Several concerted efforts to help defend software patent rights will be the best long-term strategy, Tridgell added.

"We need to be a lot more tougher for patents. We have a technical community that's really good at the sort of logic and knowledge to fight against patents. If we can find a way to co-ordinate within our very own community, we can make a very big difference going forward."

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Source: LCWHG.

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