Are software patents about to kill open source? The growing number of questionable software patents and the inability of individual developers to defend themselves from frivolous patent suits has many in the open source community concerned. Now that Microsoft has settled its antitrust case, some hackers worry that it will become more aggressive in its attack on open source. And that could spell a frivolous patent lawsuit for some projects: Wine, Samba or Linux, to name three.

To find out what the open source community can do to mitigate this risk, LinuxPlanet asked the Open Source Initiative's Lawrence Rosen for his thoughts on the subject. Though hackers tend to be skeptical of lawyers, Rosen is one who can command their respect. For one thing, he's a computer geek at heart, with--in addition to his law degree--a master of computer science from the University of North Carolina. For another. For another, he's devoted many long hours to the Open Source Initiative, where he's served as general counsel, secretary, and executive director.

LinuxPlanet: Do you think the Kollar-Kotelly decision is going have an impact on open source projects like Samba, Wine, or Linux? Some developers feel that this decision will embolden Microsoft to engage in frivolous patent suits.

Lawrence Rosen: First of all the patent law gives Microsoft, or any owner of a patent, a legal right to a monopoly. And while people may quarrel with whether that's good or bad, that's what the law is. And so the question is only whether Microsoft is going to use its patents in unfair furtherance of its monopoly in other areas in order to protect its market in Windows and other unrelated things.

I would expect that Microsoft is going to be very careful about trying things like that, because the courts and the public are going to be watching very carefully to make sure that Microsoft, or anyone else, doesn't use patents to get monopoly power in other areas. That is an abuse of the patent process and would be actionable.

So I don't expect Microsoft is going to do that. As to whether Microsoft or anyone else wishes to assert their patent, there's nothing in the decision that I read that would prevent them from doing so.

As to whether Linux or any open source software is infringing on any of Microsoft's patents. I've never heard any such claims. I don't know. I think it would be prudent to check. I presume Microsoft is doing whatever checking it thinks it needs to do. And unlike their software, ours is open, so they can just go look. But I'm not aware of any infringement by any open source software of any patent. And no one has ever brought such to my attention.

In terms of care, and prudence and discretion and due diligence, I think it would be important to check those things, but we're dealing with an open source community and I'm not sure that we have the resources or the knowledge to be able to do a search for every piece of software that we write to see if it infringes someone's patents. I don't think that that's necessarily our duty either.

LP: Software patents are almost like weapons that people use in business. Often the validity of the patent is less important than whether or not a cross licensing deal can be struck between companies.

Rosen: In some sense, Microsoft is playing catch-up with other big guys. The big gorilla on the block is IBM. And IBM seems to want--as I understand their licensing strategy today--they are adopting open source software. They don't have any particular reason to try to challenge open source software with their patents. Microsoft is playing catch-up. They recognized a couple of years ago that it didn't have a patent portfolio. They had never played the patent game. They just wrote software. And they got caught by something called the Stacker patent. I think they received a wake-up call that said, "Hey it isn't just about writing good software; its also about having patents that you can use." You can use them to negotiate a cross-license deal; you can use them in a defensive way. If someone sues you, you say, "if you sue me, I'm going to sue you."

So Microsoft perceived threats from other companies--not unrealistically, by the way--and it decided that it was time that it too started playing the patent game. Now I think that most of the big companies are not clear how they want to use their patents: whether they want to use them to exclude others from building technology, or whether they want to use them in a defensive way only. And I'm not sure that in any company as large as Microsoft there is only one view about that issue. I don't know, and they're not discussing it with me.

It seems to me that the most effective way to deal with patents is in a defensive way; to use them to protect yourself. There are other ways to use patents, and I'm not sure if they're as effective for software as they are in other fields, which is to create product differentiators--things that your company can build into its products that help it to differentiate its products from others. There may be more of that kind of usage of patents in other areas of technology.

LP: Do you think the open source community is at the point where it could receive a wake-up call in the same way as Microsoft did with Stacker? I don't think of open source developers as people who are particularly eager to file software patents.

Rosen: Absolutely. I have been advising my clients in the open source world that they need to begin to pay attention, and we have done so in a number of ways. One is, we are alert to the failures of the patents system. And given our collective expertise, we are trying to decide on good ways to deal with prior art so we can invalidate phony patents that the Patent Office issues out of incompetence. We can deal with some of that. Quite frankly, in those cases, I think what we're doing is lending our expertise. Members of our community are experts in this area.

The second thing that we're doing is working with things like standards groups to make sure--in particular I'm talking about W3C--to make sure that patents don't encumber standards.

The third thing we're doing is we're dealing with the issue of how do we deal with patents. Should we be getting patents? That seems to be a more difficult thing because it costs a lot of money to get a patent, and it's only getting more expensive. So, other than perhaps its biggest sponsors like IBM, Sun, HP, and others who support the open source community, we're not likely to get a big portfolio of patents.

The most important thing that we are doing--and this is within OSI [the Open Source Initiative] that we're trying this--we are promoting a new provision in our licenses that allows us to use patents defensively, or to actually have a defense against patents. So there is a new provision in two new licenses that we just approved, both of which I wrote (one of them is called the Open Software License, and the other one is called the Academic Free License), that deals directly with the patent issue. It's clause 10 of the OSL, and it says:

"Mutual Termination for Patent Action. This License"--meaning the license under which I license you my open source software-- "shall terminate automatically and You may no longer exercise any of the rights granted to You by this License if You file a lawsuit in any court alleging that any OSI Certified open source software that is licensed under any license containing this "Mutual Termination for Patent Action" clause infringes any patent claims that are essential to use that software.

Let me just tell in lay words what that means. "If I license you my software--my open source software--and you turn around and sue me and say that my software infringes your patent, then you must stop using my software." But it's a mutual defense clause, which means that I'm also saying, "If you use my open source software and you sue Joe, whose because his open source software infringes your patent, then you can't use my software." It's mutual.

Many licensors of proprietary software include in their licenses what's called a defensive suspension clause--what I like to call a retaliatory suspension clause--that says, "If you sue me for patent infringement, you can't use this software." Apple does that in their open source license. To some degree or another, almost every commercial open source license contains one form or another of a retaliatory defensive suspension clause.

Well we are now, in our licenses, including a defensive suspension clause.

LP: So with these clauses, if you're using Apache and you sue somebody over what you claim is a Linux patent violation, then you wouldn't be allowed to use Apache anymore?

Rosen: Let me be clear. The software has to be licensed under a license that contains this clause. Neither Linux nor Apache currently is licensed with this clause. It could be the Apache license, but it has to have this clause in it. And the Apache license currently doesn't have this clause in it.

LP: So what can people involved in projects that don't use a defensive suspension clause do to mitigate the risk of patent lawsuits?

Rosen: Well certainly one of the things they could do is to adopt these licenses or include this clause in their license. The notion is, we'll hang together or we'll hang separately.

LP: How much of a deterrent would this kind of a license really be to Microsoft? They aren't exactly known as a big open source company right now.

Rosen: I think you'd be surprised. Microsoft has no problem adopting open source software, so long as it is licensed under an Apache-style software license, because that license is compatible with proprietary software. It's only a license like the GPL that they have real problems with because it requires publication of derivative works, and they don't want to do that.

LP: What makes you think that this would have an effect on Microsoft?

Rosen: Well for one example, I understand that Hotmail, at least for a time, ran on Linux. I don't know what other software Microsoft uses internally, but I presume that with some of the software that deals with the Internet, that they probably get it like everyone else and run it.