4 ways open source protects you against software patents

Software patents continue to drag down competition and innovation. The troubling news that a consortium of huge companies is using Nortel’s patent portfolio to attack competitors underlines the problem. Continuing their war on Android using purchased patents rather than fair competition, the funders of Rockstar highlight the need for both patent reform and patent defenses.

While many open source advocates remain rightly concerned about the chilling effect of software patents on both innovation and collaboration, open source software has additional defenses against patent aggression that aren’t available to proprietary software. The Open Invention Network (OIN), a novel patent pool fighting for rather than against open source, plays an important role in these defenses.

[ InfoWorld presents the Bossies 2013, the best open source software for clouds, mobile, developers, and more. | Track trends in open source with InfoWorld’s Technology: Open Source newsletter. ]

1. The defensive patent pool

Eight years ago, in November 2005 — at a time when the challenges from patent trolls and anticompetitive use of patents by market giants were small — IBM, NEC, Novell, Philips, Red Hat, and Sony formed the Open Invention Network in order to protect Linux and open source. Back then, it required foresight to see that patents would become a major competitive weapon for technology companies, but today the value of OIN is obvious.

OIN’s network of licensees now numbers more than 600 companies worldwide. The list of open source software those licensees are committed to defend extends far beyond Linux to embrace even recent innovations. For example, MongoDB is included in the updated list that became effective in September.

Amazingly, the defenses offered by OIN are free of charge. As long as you are willing to commit to not initiating patent litigation against the software in OIN’s list and to offering your own patents in defense of that software, you can benefit from access to hundreds of thousands of patents cross-licensed by the network.

It’s easy to sign up, too. OIN recently introduced an online system that allows your company to sign up without the need for paper forms. (Tell ’em I sent you!)

OIN is the first tool on my list, and it’s one you should seriously consider adopting. But the defenses that clear-thinking open source pioneers have created extend far beyond OIN’s defensive patent pool and cross-licensing network.

2. The open source license

You may not realize it, but you may already benefit from extensive protection against the companies most likely to hold patents on the software you use. Open source licenses aren’t just about giving you the freedom to use, study, improve, and distribute the software. Most modern open source licenses — especially the Mozilla Public License, the GNU GPLv3, and the Apache Software License — incorporate some form of reciprocal patent agreement.

Since many of the contributors to open source projects are patent-holding companies, this means you are the automatic recipient of patent licenses. When you innovate and contribute to the project, your innovations share the protection provided by the license.

What must you do to be protected? First, make sure the software you use is under one of these modern licenses; older licenses like BSD and MIT don’t mention patents. Second, comply with the terms of the license — easy enough for almost all open source licenses, especially compared with the labyrinthine complexity of commercial licenses and EULAs. As long as you comply with the terms of the license, you benefit from the protection it offers. Third, work in the open rather than making last-minute contributions. This is good practice anyway, but it adds protection too.

3. Defensive publication

Developing in the open — with mailing list discussion of new features and improvements linked to public commits right from the start of prototyping — creates an ever-growing raft of published knowledge that can be mined to provide prior art to defend against future patent infringement claims. Of course, patent aggression relies on a modern protection racket, threatening costly legal ruin if you don’t pay up, so the extra step of researching prior art is not a perfect defense. If only it were possible to stop the patents being issued in the first place…

Perhaps it is. You can more directly inject evidence of your innovation into the patent process itself, without the expense of creating patents or the risk they create to your community for the future. Among other approaches, the Linux Defenders program allows patentlike documentation of innovations to be added directly to a database used by the U.S. Patent and Trademark Office in its analysis of new applications. If your company works with Linux Defenders, you can create “scorched earth” around your work, ensuring that new patent applications in your field have to respect your work.

4. Open standards

Open standards create an environment where the patent threat is largely known, either because patents are declared during the standards development process or via a subsequent patent pool like MPEG-LA. A patent pool is an obstacle to adoption for open source, but at least it makes it clear the standard is one that should be avoided.

Truly open standards come with “RF terms” — free of restrictions on who can use them and how. For extra credit, some standards — like Open Document Format (ODF) — are also accompanied by a nonassert covenant from the leading contributors to the standard, so implementers can have extra confidence that the space is as patent safe as possible.

No perfect solution

Of course, none of these measures offers a perfect solution to software patent aggression. Until the law is reformed, patent trolls like Rockstar will prey on the work of innovators, seeking profit and anticompetitive influence for their investors. But these measures together mean that open source software has more defenses than the proprietary work of closed development. Getting the same protections for proprietary software as most open source software has would cost big bucks.

Of course, you need to make sure you’re taking up the available defenses by picking modern open source licenses, developing in the open, using truly open standards, and joining the Open Invention Network. OIN is just one of the ways smart people working together are making open source better for us all — and one more reason why, if we weren’t so intoxicated by the word “free,” we would see that open source ought to cost more than proprietary solutions!

This article, “4 ways open source protects you against software patents,” was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.