Linux potentially infringes 283 patents

http://zdnet.com.com/2100-1104_2-5291403.html

Group: Linux potentially infringes 283 patents
By Stephen Shankland
CNET News.com
August 1, 2004, 9:01 PM PT

Linux potentially infringes 283 patents, including 27 held
by Microsoft but none that have been validated by court
judgments, according to a group that sells insurance to
protect those using or selling Linux against
intellectual-property litigation.

Dan Ravicher, founder and executive director of the Public
Patent Foundation, conducted the analysis for Open Source
Risk Management. OSRM is like an insurance company, selling
legal protection against Linux copyright-infringement
claims. It plans to expand the program to patent
protections.

Of the 283 patents, 98 are owned by Linux allies, OSRM said,
including 60 from IBM, 20 from Hewlett-Packard and 11 from
Intel. The months-long review examined versions 2.4 and 2.6
of the kernel, or heart, of Linux, Ravicher said.

Though OSRM's patent protection won't start until the
beginning of 2005, it has set pricing: $150,000 per year for
coverage of lawsuit and settlement costs of up to $5
million, Ravicher said.

OSRM's patent-protection plans are the latest development in
the sometimes uneasy interaction between the open-source
programming movement, which shares code freely, and the
proprietary software world, which puts a premium on
technology as private property. The issue became a very real
concern when the SCO Group sued IBM, arguing that Big Blue
had moved proprietary Unix technology into Linux against the
terms of a contract.

And the issue has been getting more attention. A
just-surfaced 2-year-old memo from a Hewlett-Packard
executive highlighted patent-infringement risks in Linux,
and Linux foe Microsoft is putting increasing emphasis on
its patent portfolio, with a goal to apply for 3,000 new
patents this year.

Linux programmers will sidestep any patent infringement
problems that arise, said Stuart Cohen, chief executive of
Open Source Development Labs, a Linux consortium that
employs Linux leader Linus Torvalds.

"As we said in response to the SCO allegations, OSDL is
prepared to work with the development community to remedy
any offending code in Linux that infringes on the legitimate
legal rights of others, and we extend that as well to any
issues around patents," Cohen said.

Although OSRM stands to profit from the
intellectual-property fears concerning Linux, the start-up
takes pains to ally itself with the open-source cause--in
part because more Linux users means a larger market,
Ravicher said.

Open-source advocate Bruce Perens is on OSRM's board, and
the company employs Pamela Jones of the SCO-watcher Groklaw
Web site to help compile details on the history of Unix and
Linux technology. And Ravicher represents the Free Software
Foundation, the group that created the General Public
License (GPL) that governs Linux and many other open-source
programs.

In Ravisher's opinion, 283 patents could be a basis for
Linux infringement lawsuits, but that leaves open the
question of whether a court would find actual infringement
or whether the patent would ruled invalid. Of patents
challenged in court, about half are found to be invalid,
Ravicher said.

That number isn't unusually high for a package comparable to
Linux, he added. Microsoft, for example, faces several
patent suits, he said.

An artifact of current patent law in the United States is
that companies and individuals are discouraged from seeing
if their products infringe, Ravicher said.

"If you have knowledge and are found to infringe, a court
can punish you," tripling financial penalties, Ravicher
said. "If you say you didn't know and didn't see it, a court
can't punish you. It's a screwed-up rule."

Linux founder and leader Linus Torvalds has taken that
approach. "Finding patent infringement has always been a
responsibility of the patent holders," he said in a 2003
interview. "It is a fact that I do not encourage engineers
to look up patent information."

Red Hat, the top seller of Linux, offers reassurances not
just about Linux but about higher-level open-source software
the company offers. "We feel confident that our open-source
solutions do not infringe on the valid intellectual-property
rights of others," the company said earlier in July.

Because of the effect that knowledge of potential
infringement has, OSRM isn't releasing its list of patents.

"If we were to publish the patents, we've now put everyone
on notice of those patents. For those who have tried to
avoid them, we've forced them to know of them, so we've
screwed the community," Ravicher said. "If someone really
wants to know, they can do the search themselves."

To facilitate co-ordination regarding the introduction of OSS SW in Vietnam

Subscribe to OSS:

Subscribe | Unsubscribe