A controversial European Commission directive -- that proponents say merely reflects and reinforces the current patenting regime in member countries -- could in fact, according to an Australian lawyer, stifle open source software development throughout the region. Jeremy Malcolm, a lawyer specialising in information technology said: "It may perhaps stop some of the development that is going on in Europe on open source. You may find that some people developing software over there will have to stop doing it because of the threat of being sued over patent violations".
The Computer Implemented Inventions Directive (CIID), which has been hotly debated in Europe for several months, is closer to becoming a reality, with discussion by a key regulatory body scheduled for Monday. The European Commission this week rejected a push from the European Parliament to have the planned directive reviewed.
Malcolm told ZDNet Australia the planned directive offered patent holders in Europe a greater opportunity to profit from pursuing what they regarded as breaches of their intellectual property.
However, this is far from the only patent-related headache for free and open source software proponents. Malcolm said today he stood by his comments this week that "there is no question that some of the open source software that is out there - such as the Linux kernel itself - has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated". In response to some heated postings by Linux and open source community members, Malcolm pointed to an independent report which recently found 283 potential patent violations in the Linux kernel, a fact acknowledged by Linux founder Linus Torvalds. He stressed however, that this was not to say that those patents were properly granted in the first place.
Malcolm also raised two other crucial points with regard to patents in general: Firstly, that due to laxness by the United States' patent office in investigating issues such as prior art, many existing patents may be open to legal challenge. However, with a lot of open source development undertaken by smaller players or individuals, a large proportion of the community is in no position resource-wise to fight patent brawls and particularly litigation by holders of dubiously-awarded patents.
Secondly, he added, the CIID goes some way towards bringing Europe into line with the US and is a step towards the eventual establishment of a global patent framework -- which would ease the way for patent holders to act more easily in foreign jurisdictions to enforce their rights. (This seems to be true, your writer feels, more in the sense that two of the major jurisdictions in the world are establishing standardised patent regimes, rather than in the substance of the regimes themselves -- the British government headlined its statement on the directive on 14 December "Government says 'no' to US software patent model" and claims one of the points of the exercise is to ensure there is no drift towards the US position on patents).
One thing is apparent -- while the highest-profile intellectual property action involving Linux -- SCO's multi-billion dollar lawsuit against Big Blue and other parties -- is being tipped by many observers to founder this year, the issue of patents and intellectual property will only increase in importance.
(On a slightly different note, it must be galling to many in the community this week that Microsoft co-founder and chairman Bill Gates -- whose company was caught up late last year in a brouhaha over alleged threats over Linux patent infringement -- this week received an honorary knighthood from the Queen of England. While your correspondent does respect Gates' obvious intelligence and business acumen, the royals' decision to hand over an award for outstanding contribution to enterprise does seem questionable given Microsoft's history of anticompetitive behaviour).
What do you think? Is open source software development by smaller companies and individuals going to stall as a result of patent litigation? What measures can and should be taken to limit the effect of patents on open source software? Should Gates have been gonged? E-mail us at edit@zdnet.com.au and let us know.
What a crock.
First we are told;
"there is no question that some of the open source software that is out there...has got patent violations in there. That is acknowledged."
But then:
" There is more danger that those <b>potential</b> violations will be litigated".
So if they are certain, why do they suddenly become potential? And if they are so certain and known, why has nothing been done in the 15 years or so Linux has been around?
This is pure FUD.