Perens Knocks OSDL Patent Pool

Bruce Perens led his biannual “Open Source State of the Union” talk at the recent LinuxWorld Expo in San Francisco with a hard knock on the plan to create a “patent pool” to protect open-source projects from patent lawsuits.

The Open Source Development Labs’ plan to collect open-source patents and patent pledges into a central repository, dubbed the Patent Commons Project, is little more than “spitting in the wind,” says Linux and open-source activist Bruce Perens. The problem, he says, is that pool will be filled by “the wrong people”--friends of open source like IBM and Sun Microsystems, which donate patents to open source. Meanwhile, “enemies” of open source, such as Microsoft, already have the right to use patents donated to the open-source community by IBM, Nokia, Sun and others.

“I think OSDL means well, but the patent pool isn’t going to help,” Pernens says. “The people who place their patents in the pool can’t use them defensively. They cannot use them against people who bring other patent lawsuits against open source, because all of those companies have cross licenses with the bad guys…. If Microsoft turns out to be the aggressor, [the OSDL’s plan] won’t help.”

“You have this skeleton in the closet that few people on the show floor want to talk about,” Perens says. “Every open-source program of any significant size infringes on tens or hundreds of patents granted in the United States. Those patents never should have been granted, but they were. And if you went to court today, you’d lose some of those cases.”

The OSDL is a global consortium focused on accelerating the adoption of Linux. The group’s Patent Commons Project will initially comprise a library and database that aggregates patent pledges made by companies, and a collection of software patent licenses and software patents (issued and pending) held for the benefit of the open-source community. The library will also aggregate other legal solutions, such as indemnification programs offered by vendors of open-source software, the OSDL says.

Not surprising, the OSDL initiative is backed by Linus Torvalds, creator of the Linux kernel and spiritual head of the open-source movement. The OSDL bills itself as “home to Linus Torvalds.”

“Software patents are a huge potential threat to the ability of people to work together on open source,” Torvalds says. ‘‘Making it easier for companies and communities that have patents to make those patents available in a common pool for people to use is one way to try to help developers deal with the threat.”

But it won’t solve the patent problem, Perens adds. The software industry should focus its efforts on pushing for legislative changes, he said. “It is time for significant patent reform legislation in the United States. This is the year, folks, when we have to start looking at this seriously.”

About the Author

John K. Waters is a freelance writer based in Silicon Valley. He can be reached at [email protected].