News

Timing is Everything

• By Mike Gunderloy
• May 21, 2004

Two online essays touching on software patents recently crossed my browser window. The first is Seth Nickell's "Why Mono is Currently An Unacceptable Risk". Nickell is a Gnome developer (that's Gnome the open source software project, not gnome who lives in the garden), and his essay discusses his reasons for not wanting to base any work on the Mono open-source .NET implementation. The second essay is Microsoft's "Patents Pending", part of their continuing "Microsoft on the Issues" series. Coming two days after Nickell's piece, this will no doubt strike some folks as the official response from Redmond, though a moment's thought will convince most reasonable observers that it must have been planned long before. In any case, this particular bit of tub-thumping argues that software patents are A Good Thing, and that it's good that the Bush administration is planning to spend some money to try to support the overtaxed patent office.

Nickell's main concern is with the licensing terms under which the Mono project is moving forward. Mono is an open-source implementation of the ECMA-334 and ECMA-335 standards that cover the C# language and the CLI. Microsoft or its employees have made various statements about royalty-free, reasonable, and non-discriminatory licensing terms for this technology, but there doesn't seem to be any official and unabiguous statement of what this means floating around on the Web. The worry is that Microsoft is just biding its time until Mono is at the heart of various Linux projects, at which point its lawyers will pounce and demand unreasonable concessions or tie up the open source movement in knots, thus dispatching another competitive threat to join the likes of DR-DOS and OS/2 in the software graveyard.

That's enough to get open source conspiracy theorists theorizing (heck, almost anything is enough for some folks), but I suspect Microsoft's latest essay will set those tongues to really wagging. Part of the open source concern here is that Microsoft will use its patents in some unspecified but intolerable manner to crush Linux and other projects. So it can't be encouraging to read "This cycle of investment and innovation is made possible by a legal system that helps protect intellectual property" and other choice gems of intellectual property-based capitalism triumphant in this essay.

Attentive readers will know that I have no great liking for the current system of software patents (in fact, I've argued in this very column that they should simply be abolished). But given that this is unlikely, I can go along with most of Microsoft's points: that if we are to have a software patent system, something must be done to clean up the backlog of half a million patent applications, and that we need to get patent examiners who are better qualified to deal with software patents. Unclogging the system will help get rid of bad patents at the same time that it helps to grant good ones more quickly.

Meanwhile, I can utterly understand the people in the open source community who are worried that ECMA-334 and ECMA-335 are a pair of Trojan Horses. Though I've heard informally from various Microsofties that Mono is a project they like, it would still be really nice to have the reasonable and non-discriminatory terms spelled out. They've done this for the Office XML Reference Schemas, which have the license available online. Why not do the same for the ECMA C# and CLI specifications, Microsoft?