Friday, August 12, 2005

Comments on OSDL patent pool from David Berlind

from ZDNet on the OSDL patent pool:

Said Perens:

This effort may distract from the legal reform we need. Unfortuantely part of that is because if you look at OSDL's membership, they are between a rock and hard place. Most of OSDL's members are patent holders who would profit from the tighter restrictions that come from patents in software. IBM has the largest patent portfolio in the industry. HP is in top 10. OSDL can try and take some half measures. But they can't address the problem the way it really needs to be addressed. So, it's kind of weird.

As long as the patent system is what it is, attorney Larry Rosen has his own suggestion for where to apply resources (as opposed to establishing patent commons). Said Rosen:

Patent attorneys helping open source can perhaps contribute more by helping us organize and search our existing prior art data bases to invalidate other companies' pesky patents rather than by filing a few more patent applications in order to give them away for free.

[LBE note: looking backwards, searching the prior art, has proved remarkably unsuccessful. Note's one-click patent, and more recently the ineffective prior art mobilized by W3C against the Eolas browser. In the end, those references were tossed by the PTO in the re-exam.
looking forward , creating art, the best bet is to thoroughly and publicly document efforts in open source. Filing more patent applications, especially ones that aren't going anywhere, is a waste of time.]

What's my take? Given how small the open source community is — and what I mean by that is the number of people who are influencing its direction and who are really empowered to make changes — just about any move on the patent front really requires that everyone preach to the same choir. That hasn't been the case for as long as I've been following the intellectual property issues as they relate to open source and clearly, things are not changing. The move by OSDL certainly comes across as being a nice gesture and the organization's heart may be in the right place. But ultimately, another isolated defense mechanism — in addition to the pledges, defense funds, indemnifications, new licenses like the CDDL that require patent grants, etc. — is just more confusing to the market and is unlikely to have a noticeable impact on the overall situation. The only way licensees of open source will end up exposed to less risk as a result of this or any other commons is if it simply encourages more patent holders to donate those patents to the public domain. And, as Rosen pointed out, there are other easier ways to do that.


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