30 Jul 2004

Rumors of Patent War

Last time I pointed out the developments that show that the tide has turned against the legal attacks on the GPL, with German judicial enforcement of the license, and SCO’s retreat from its absurd claims that the license violates copyright law and the US Constitution. The signs this summer are that the anti-freedom strategists working for Mr Gates agree that attacking the GPL has failed; the rumors of war have shifted to the arena of patent law.

I have written here before about the danger patents can pose to free software. Copyright law covers expressions, not ideas. Any idea one finds in a copyrighted work is freely available to be used in another context, but it must be expressed differently, because the right to make modified and unmodified copies of the original work was vested exclusively in the copyright holder, and copying requires license. The principle of “independent redevelopment” therefore protects programmers who reimplement protocols, processes, or ideas contained in existing copyrighted programs. The existence of GNU, Linux, Samba, and other free software programs has always depended upon the right to reimplement from scratch.

Patent law, on the other hand, conveys a statutory monopoly to control every attempt to make, use, or sell products—no matter how they were developed—that practice the claims in a validly-issued patent. If an “invention” contained in a computer program is validly patented, unlicensed independent reimplementation is barred, and not only the developer and distributor, but even the unlicensed end user, is infringing.

For the monopolist, therefore, patent is a potentially powerful weapon, particularly if patents are freely available to cover such things as data file formats, de facto standard protocols, recommended technologies contained in formal standards, etc. But if a monopolist tries to use its own patents to exclude competitors, it risks competition law consequences: use of one’s patents specifically to protect the larger monopoly power outside the domain of the patent may be a violation under US antitrust and European and Japanese competition law. And patents should not be freely available for the sorts of techniques it is most valuable for the software monopolist to control, even under existing patent law. Programming is a superlatively incremental art, and under all major legal systems patents should not be available for purely incremental improvements to existing ways of doing things. Patent law also does not allow patenting of inventions already “on sale” or described in published material.

Nonetheless, as the press has reported this summer, Microsoft has been on a patenting binge. The monopoly has been filing a reported ten applications a day with the US Patent Office, and has also stepped up its filings with the European Patent Office. The company itself trumpeted the patent initiative in a publicity barrage last week, describing it as a major sign of continued innovation at Microsoft. If Microsoft has its way, apparently, so much of its next operating system version—code named Longhorn and scheduled for release sometime later this decade—will be patented that unlicensed interoperation will be difficult or impossible.

The monopoly, too, has been discreetly threatening some free software projects and companies with the possibility of patent infringement lawsuits. Rumors of contacts with CEOs of major companies to deliver a “Linux has patent problems, better think again about switching” message have been rife, though so far publicly unconfirmed. A two-year-old internal Hewlett-Packard memorandum mysteriously leaked, and subsequently acknowledged by HP, stated that Microsoft had refused to cross-license any new patents with HP for use in free software.

In short, it seems likely that there’s a public relations campaign going on, through many different channels, intended to raise awareness of possible patent threats to free software. Whispering in one quarter and blustering in another is a good deal safer for a monopolist than actual infringement actions, with their inevitable antitrust consequences.

But the free world is far from defenseless. Through the New York-based Public Patent Foundation, led by Dan Ravicher, we have recently asked the US Patent Office to reconsider the key patent granted to Microsoft for the FAT file system. The PTO has agreed to review whether the patent issued actually discloses any patentable invention, holding that the free world raised “serious questions” about the patent’s validity. In 70\% of the cases where the US PTO agrees to reexamine a patent, the patent is substantially narrowed or invalidated altogether. This is the first of our initiatives to reduce the harm potential from invalid patents in the hands of the monopoly. The free world will also improve its cooperation with patent examiners, helping them to make better use of the enormous reservoir of prior art and “on sale” inventions that free software includes. This should help us, even within the confines of current patent law, to resist the monopoly’s overpatenting strategy. And this coming month should see some important announcements in the area of patent insurance for free software, about which I’ll write more next time.

This column was first published in the UK in Linux User. It is also available in PostScript and PDF formats.

permalink | columns/lu | 2004.07.30-00:00.00

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