Compliance Toolkit

Do patents threaten your business?

Bruce Perens CNET News

Published: 02 Feb 2005 10:50 GMT

The timing is no coincidence. IBM is one of the major forces lobbying for software patenting in Europe. It's possible that IBM's action may help convince European legislators that open source and software patenting are compatible. But IBM's 500 patent grant is tiny next to the 1,500 software patents the company files each year, the 30,000 software patents already granted by the European Patent Office and the hundreds of thousands that annually arise in the United States.

According to the American Intellectual Property Law Association, software patent lawsuits come with a defence cost of about $3m. Even before the case could be fully heard, a single patent suit would bankrupt a typical small or medium-size applications developer, let alone an open source developer.

IBM proposed the creation of a patent commons for open source, which would probably be operated by Open Source Development Labs, an industry organization that has already dedicated a multimillion-dollar legal defence fund for open source developers. But that sum could be eaten up by one or two patent lawsuits.

OSDL's board and officer roster is dominated by the world's largest software patent holders, including the likes of IBM, Intel and HP. Although those deep pockets can mitigate some of the financial burden that might arise, it's unreasonable to believe that the OSDL would work against software patenting in the interests of the broader open source developer community.

The most poorly represented party is not open source at all, but the community of small and medium-size proprietary software developers and e-businesses. Every significant software program and business Web site today infringes on one or more software patents granted in the United States. These businesses are just beginning to realize how much they have to lose.