Opposition to

software patents A software patent is a patent on a piece of software, such as a computer program, library, user interface, or algorithm. The validity of these patents can be difficult to evaluate, as software is often at once a product of engineering, something ...

is widespread in the

free software community The free software movement is a social movement with the goal of obtaining and guaranteeing certain freedoms for software users, namely the freedoms to run, study, modify, and share copies of software. Software which meets these requirements, ...

. In response, various mechanisms have been tried to defuse the perceived problem.

Positions from the community

Community leaders such as

Richard Stallman Richard Matthew Stallman ( ; born March 16, 1953), also known by his initials, rms, is an American free software movement activist and programmer. He campaigns for software to be distributed in such a manner that its users have the freedom to ...

, Alan Cox, Bruce Perens, and

Linus Torvalds Linus Benedict Torvalds ( , ; born 28 December 1969) is a Finnish software engineer who is the creator and lead developer of the Linux kernel. He also created the distributed version control system Git. He was honored, along with Shinya Yam ...

; companies such as

Red Hat Red Hat, Inc. (formerly Red Hat Software, Inc.) is an American software company that provides open source software products to enterprises and is a subsidiary of IBM. Founded in 1993, Red Hat has its corporate headquarters in Raleigh, North ...

and

MySQL MySQL () is an Open-source software, open-source relational database management system (RDBMS). Its name is a combination of "My", the name of co-founder Michael Widenius's daughter My, and "SQL", the acronym for Structured Query Language. A rel ...

; and community groups such as FSFE and IFSO all believe that patents cause problems for free software.

Patent licensing

Leading open-source figures and companies have complained that software patents are overly broad and the

USPTO The United States Patent and Trademark Office (USPTO) is an agency in the U.S. Department of Commerce that serves as the national patent office and trademark registration authority for the United States. The USPTO's headquarters are in Ale ...

should reject most of them.

Bill Gates William Henry Gates III (born October 28, 1955) is an American businessman and philanthropist. A pioneer of the microcomputer revolution of the 1970s and 1980s, he co-founded the software company Microsoft in 1975 with his childhood friend ...

has said "If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today".

Problems for free software

Free software projects cannot agree to patent licences that include any kind of per-copy fee. No matter how low the fee is, there is no way for a free software distributor to know how many copies are being made. Also, adding any requirements to pay or to notify someone each time a copy is made would make the software no longer free software. A patent licence that is

royalty-free Royalty-free (RF) material subject to copyright or other intellectual property rights may be used without the need to pay royalties or license fees for each use, per each copy or volume sold or some time period of use or sales. Computer standards ...

, or provides a one-time worldwide payment is acceptable. Version 2 of the

GNU General Public License The GNU General Public Licenses (GNU GPL or simply GPL) are a series of widely used free software licenses, or ''copyleft'' licenses, that guarantee end users the freedom to run, study, share, or modify the software. The GPL was the first ...

does not allow software to be distributed if that software requires a patent licence that does not "''permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you''". The Version 2 of the

of 1991 also says that patents convert free software to proprietary software: "''Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.''"

The 2004 OSRM study

In 2004, Open Source Risk Management commissioned a patent study, carried out by Dan Ravicher. For this study, Ravicher performed patent searches to estimate the patent-risk of the

Linux kernel The Linux kernel is a Free and open-source software, free and open source Unix-like kernel (operating system), kernel that is used in many computer systems worldwide. The kernel was created by Linus Torvalds in 1991 and was soon adopted as the k ...

In conclusion, he found that no court-validated software patent is infringed by the Linux kernel. However, Ravicher also found 283 issued but not yet court-validated software patents that, if upheld as valid by the courts, could potentially be used to support patent claims against Linux.

However, Mark Webbink, who was Red Hat's Deputy General Counsel, said that Ravicher did not deduce the kernel to infringe any of said patents.

Techniques for opposing patents

Patent retaliation

"Patent retaliation" clauses are included in several free software licenses. The goal of these clauses is to create a penalty so as to discourage the licensee (the user/recipient of the software) from suing the licensor (the provider/author of the software) for

patent infringement A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...

by terminating the license upon the initiation of such a lawsuit. Early drafts of version 3 of the

(GPLv3) contained several patent retaliation clauses that varied in scope, some of which were later removed due to concerns about their efficacy. The final published version of GPLv3 contains a patent retaliation clause similar to those in the

Apache License The Apache License is a permissive free software license written by the Apache Software Foundation (ASF). It allows users to use the software for any purpose, to distribute it, to modify it, and to distribute modified versions of the software ...

and

Mozilla Public License The Mozilla Public License (MPL) is a free and open-source weak copyleft license for most Mozilla Foundation software such as Firefox and Thunderbird. The MPL is developed and maintained by Mozilla, which seeks to balance the concerns of bo ...

, which terminates rights granted by the license in response to litigation alleging patent infringement in the software.

Patent pools

In 2005,

IBM International Business Machines Corporation (using the trademark IBM), nicknamed Big Blue, is an American Multinational corporation, multinational technology company headquartered in Armonk, New York, and present in over 175 countries. It is ...

Novell Novell, Inc. () was an American software and services company headquartered in Provo, Utah, that existed from 1980 until 2014. Its most significant product was the multi-platform network operating system known as NetWare. Novell technolog ...

Philips Koninklijke Philips N.V. (), simply branded Philips, is a Dutch multinational health technology company that was founded in Eindhoven in 1891. Since 1997, its world headquarters have been situated in Amsterdam, though the Benelux headquarter ...

, and

Sony is a Japanese multinational conglomerate (company), conglomerate headquartered at Sony City in Minato, Tokyo, Japan. The Sony Group encompasses various businesses, including Sony Corporation (electronics), Sony Semiconductor Solutions (i ...

founded the Open Invention Network (OIN). OIN is a company that acquires patents and offers them royalty free "to any company, institution or individual that agrees not to assert its patents against the Linux operating system or certain Linux-related applications". Novell donated the valuable Commerce One web services patents to OIN. These potentially threaten anyone who uses web services. OIN's founders intend for these patents to encourage others to join, and to discourage legal threats against Linux and Linux-related applications. Along with several other projects, Mono is listed as a covered project.

Lobbying for legislative change

Movements have formed to lobby against the existence and enforceability of software patents. The earliest was the League for Programming Freedom in the USA. Probably the most successful was the anti-software-patent campaign in Europe that resulted in the rejection by the

European Parliament The European Parliament (EP) is one of the two legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it ...

of the

Proposed directive on the patentability of computer-implemented inventions The Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions (Commission proposal COM(2002) 92), procedure number 2002/0047 (COD) was a proposal for a European Union (EU) dir ...

which, the free software community argues, would have made software patents enforceable in the

European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are Geography of the European Union, located primarily in Europe. The u ...

. A fledgling movement also exists in

South Africa South Africa, officially the Republic of South Africa (RSA), is the Southern Africa, southernmost country in Africa. Its Provinces of South Africa, nine provinces are bounded to the south by of coastline that stretches along the Atlantic O ...

Promises from patent holders

Some software companies who hold significant patent portfolios have made non-aggression pledges to the free software community. These have varied in scope and have received a variety of responses. IBM, Sun, and Nokia are three examples. These have been described by Richard Stallman as "significant", "not really anything", and "next to nothing", respectively. Microsoft has irrevocably pledged not to assert any claims against open source developers which CEO

Steve Ballmer Steven Anthony Ballmer (; March 24, 1956) is an American businessman and investor who served as chief executive officer of Microsoft from 2000 to 2014. He is the owner of the Los Angeles Clippers of the National Basketball Association (NBA). He i ...

called "an important step and significant change in how we share information about our products and technologies." This pledge has been accepted with some skepticism.

Infringement claims

Microsoft Microsoft Corporation is an American multinational corporation and technology company, technology conglomerate headquartered in Redmond, Washington. Founded in 1975, the company became influential in the History of personal computers#The ear ...

has claimed that

free software Free software, libre software, libreware sometimes known as freedom-respecting software is computer software distributed open-source license, under terms that allow users to run the software for any purpose as well as to study, change, distribut ...

such as OpenOffice.org and the

violate 235 Microsoft patents and said that it will seek licence fees, but has so far failed to disclose which patents they may violate. However, the 2009 lawsuit against TomTom involved the use of Microsoft's patents for long filenames on FAT filesystems, the code for which was in the Linux kernel, not in any TomTom-developed software. The Linux kernel developers subsequently worked around it. In 2011 a company called Bedrock Technologies LLC won a judgment of $5 million against Google for use of the Linux kernel, which the court found to violate US patent 5,893,120 (which was filed in 1997 and issued in 1999, and covers techniques for software caches likely used in every modern operating system). Bedrock went on to sue Yahoo and lost; Yahoo's defense amounted to the use of a different version of Linux which did not execute the particular code that Bedrock had pointed out as infringing, but the Yahoo case did not invalidate Bedrock's patent. Details of exactly which code Bedrock said infringed the patent and how Yahoo managed to avoid executing that code are not publicly available. In January 2008,

Trend Micro is an American-Japanese cyber security software company. The company has globally dispersed R&D in 16 locations across every continent excluding Antarctica. The company develops enterprise security software for servers, containers, and cloud ...

accused Barracuda Networks of patent infringement for distribution of the ClamAV anti-virus software.

Microsoft's patent deals

In November 2006, a highly controversial agreement was made between Novell and Microsoft that included patent licensing. This led to much criticism of Novell by the

. In June 2007, Xandros announced a similar deal. On June 13, 2007, a deal was reached between Microsoft and Linspire. In return, Linspire would change its default search engine from Google to Live search.

Ubuntu Ubuntu ( ) is a Linux distribution based on Debian and composed primarily of free and open-source software. Developed by the British company Canonical (company), Canonical and a community of contributors under a Meritocracy, meritocratic gover ...

founder and director

Mark Shuttleworth Mark Richard Shuttleworth (born 18 September 1973) is a South African and British entrepreneur, founder and CEO of Canonical, the company behind the Ubuntu Linux operating system. In 2002, Shuttleworth became the first African to travel to spa ...

has said that Ubuntu will not be making any such deal, as have

. These have been joined by a weaker statement from

Mandriva Mandriva S.A. was a Public company, public software company specializing in Linux and open-source software. Its corporate headquarters was in Paris, and it had development centers in Metz, France and Curitiba, Brazil. Mandriva, S.A. was the deve ...

that "''we don’t believe it is necessary for us to get protection from Microsoft''". In October 2007, IP Innovation LLC, a company specialized in patent-protection, filed a suit for patent infringement against

and Novell. However, IP Innovation LLC is a subsidiary of a company classified by some as a patent troll, and commentators suspect a strong connection between this company and Microsoft. In 2010, IP Innovation lost the suit. In December 2007, Microsoft granted the Samba project access to certain proprietary documents and must maintain a list of related patents for a one-time fee of 10,000 Euros. Microsoft was required to make this information available to competitors as part of the European Commission March 24, 2004 Decision pertaining to antitrust violations.

References

External links

CNN: Microsoft takes on the free world
discusses Microsoft and FSF's position regarding software patents and free software

published by Free Software Foundation
Free software projects harmed by software patents
End Software Patents {{DEFAULTSORT:Software Patents And Free Software Software patent law

Patents A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an sufficiency of disclosure, enabling discl ...