The Meaning of “Open Source”: Patented by Microsoft
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
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Posted: Jan 9, 2011 @ 11:01 pm
It is impossible to search for technology related news online anymore without being inundated with the days wave of open source news stories that are seemingly proliferating faster than a human engineered bacterium, which by the way is patentable subject matter in the United States. In any event, “open source” has become the new “cyberspace” or “technological age” or even “telecommunications.” All of these terms are certainly understood by every reader, but part of the beauty of the term is that it can mean all things to all people, without ever really conveying a standardized meaning that everyone can agree with; much like the term “compassionate conservative,” which was so frequently used by the Bush Administration. What is a “compassionate conservative”? I really have no idea, but it sounds like a good thing and something to aspire to! After all, how could being a compassionate anything be bad?
So what does “open source” mean? The term is nebulous at best and confusing at worst. The term, however, has undeniably become associated with the easy to understand but always misleading term – “free.” Certainly everyone knows the meaning of “free,” a term so universally understood that men (who are from Mars) and women (who are from Venus) both accept the term as meaning the very same thing. Even children understand the meaning of “free,” which leads to a plurality of interesting ironies.
When discussing the metaphysical nature of the term “free” with children adults will almost to a person attempt to educate by explaining that nothing in life is truly free, which based on my experience is about as definite a truth as are death and taxes. Nevertheless, these same caring, rational-thinking adults who explain that nothing in life is every truly free all of the sudden, when confronted with the possibility of obtaining open source software, rationally conclude that functioning, useful software should be free, or at least freely available, whatever that means. As far as I can tell, the meaning of the term “free” as it is associated with open source and software more generally relates to the desire of those writing code to be able to ignore the underlying intellectual property rights of others. Something of a copy-cat anarchy.
A number of years ago IBM announced that it was going to open up hundreds of its patents to open source developers. Sun Microsystems followed suit, opening up over a thousand of its patents. Others, like lemmings, opened up their patents as well. Nevertheless, some in the open source industry, which still sounds like an oxymoron to me, were upset by the fact that more patents were not donated to the public. The primary argument seemed to be that these patents were obviously worthless anyway, so why not just donate them all? A slightly different strain of a similar argument finds free software advocates complaining that the patents opened to the public were of little value and do not represent the opening of core technologies.
Apparently the free software community has never heard of or simply doesn’t understand the meaning of the phrase “never look a gift horse in the mouth.” But then again, is this really about software or it is about something deeper? It is my personal belief that most free software advocates will never be happy until everything is open source and nothing is patented, which I suspect is the ultimate goal of many in the movement; the destruction of the patent system as a whole.
I just cannot see the wisdom involved when companies open their proprietary assets to the open source movement. Perhaps the goal is to gain market acceptance, which is a rational only mentioned in passing by those who are opening up patents. But let’s work through this one, shall we? Give away rights to obtain market share — isn’t that a little like losing money on every sale but making it up on volume?
Lying under the surface of the open source debate is little or no discussion about whether open source is a good thing. Perhaps we should rewind this debate and start at the beginning and ask whether open source is the path that we want to take. Why MUST everyone have an open source strategy? What is wrong with a proprietary strategy? It seems that embracing an open source strategy wasn’t the wisest thing for Sun, who has seen revenues plunge.
Of course there is a real Mexican standoff between propriety software and open source software. Open source projects may actually infringe upon software patents held by Microsoft and other proprietary companies. Similarly, many proprietary software products and services may infringe upon the patents held by the open source community. What!?!?! Open sourcers holding patents? Yes, they do, and lots of them. Of course they claim never to have any interest in using them offensively, but open source believers remain uneasy nonetheless. As an aside, if open source companies preach about the evils of software patents and tell you that you shouldn’t have them then why would they have them? If they are good for some open source companies, even if just for defensive purposes, shouldn’t they be good for everyone?
As the open source movement grows Microsoft, which is always the 800 pound gorilla in the room, may consider bringing patent infringement suits. It seems that is the worry of at least one open source group who claims that it is particularly troubling that Microsoft, along with a group of tech companies that includes Apple, is seeking to purchase the Novell patent portfolio. According to the Open Source Initiative, the Microsoft coalition seeking to purchase the Novell patent portfolio has “no incentive to support open source as a competitive alternative to proprietary software.” See OSI Position Statement.
Apparently, Novell was committed to open source and that makes it acceptable to the OSI that they owned patents, but the fact that patents might be used for a competitive advantage by a patent owner, and used to stop infringers from infringing is troubling. So troubling that they are urging the German government to investigate. See Open source campaigners urge investigation of Novell patent sale and Novell’s Microsoft patent sale referred to regulators. So it seems that the position of the OSI is that those who are anti-software patent and committed to open source are the only ones who can own patents without necessitating an investigation by the government. Breathtakingly self-serving if you ask me.
In any event, wouldn’t it be ironic if the movement developed at least in part to prevent monopolization of the software industry in Redmond wound up being responsible for handing Microsoft rights to every program ever created? Perhaps it is Microsoft that is behind the open source movement. Who knows, but several things seem abundantly clear, namely that nothing in life is every truly free, and the true meaning of the term “open source” may be “patented by Microsoft.”
About the Author
Gene Quinn is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.