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Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

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Patents, Patents, Everywhere...

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...nor any stop to think.

Software patents are an issue that crops up fairly often on this blog, since they represent one of the principal threats to free software. But recently something seems to have got into the water, for the entire world, apparently, has gone software patent mad.

First we had Apple taking a swing at HTC, one of the main manufacturers of Android smartphones:

Apple today filed a lawsuit against HTC for infringing on 20 Apple patents related to the iPhone’s user interface, underlying architecture and hardware.

It trotted out the usual nonsense:

“We can sit by and watch competitors steal our patented inventions, or we can do something about it. We’ve decided to do something about it,” said Steve Jobs, Apple’s CEO. “We think competition is healthy, but competitors should create their own original technology, not steal ours.”

In fact, that's part of the problem with software patents: companies very often *do* create their own technology independently, but that's no defence against a previously-filed patent. It allows the outfit that bangs in the first patent to monopolise it – literally – for a couple of decades, even though many others may have been working on the same idea and come up with similar solutions on their own.

Then, just to make things more interesing, poor old HTC was accused by Microsoft of infringing on its patents – except in this case, HTC decided to settle, so we don't know exactly what those patents were. Here's what Microsoft said:

Microsoft Corp. and HTC Corp. have signed a patent agreement that provides broad coverage under Microsoft’s patent portfolio for HTC’s mobile phones running the Android mobile platform. Under the terms of the agreement, Microsoft will receive royalties from HTC.

Notice that it specifies “mobile phones running the Android mobile platform”, which seems an indirect way of implying that HTC has paid for “problems” with Linux, on which Android is based. Thus, a little more FUD can be spread about Linux's supposed infringement on Microsoft's monopolies, without actually making any real claim that needs supporting by facts.

Like Apple, Microsoft trots out the usual cant about patents:

The licensing agreement is another example of the important role intellectual property (IP) plays in ensuring a healthy and vibrant IT ecosystem.

As the growing number of hugely expensive patent lawsuits demonstrates, this could hardly be further from the truth. Instead, software patents represent a huge tax on players in this sector – and that's just the way the big companies like it, since it represents a barrier to new entrants - and is problematic for free software.

That danger moved a little closer recently – assuming that the following email sent to the FSF's Roy Hugo really is from Steve Jobs:

All video codecs are covered by patents. A patent pool is being assembled to go after Theora and other "open source" codecs now. Unfortunately, just because something is open source, it doesn't mean or guarantee that it doesn't infringe on others patents. An open standard is different from being royalty free or open source.

And here's more proof of how patents are messing up the entire field of video:

We've all heard how the h.264 is rolled over on patents and royalties. Even with these facts, I kept supporting the best-performing "delivery" codec in the market, which is h.264. "Let the best win", I kept thinking. But it wasn't until very recently when I was made aware that the problem is way deeper. No, my friends. It's not just a matter of just "picking Theora" to export a video to Youtube and be clear of any litigation. MPEG-LA's trick runs way deeper! The [street-smart] people at MPEG-LA have made sure that from the moment we use a camera or camcorder to shoot an mpeg2 (e.g. HDV cams) or h.264 video (e.g. digicams, HD dSLRs, AVCHD cams), we owe them royalties, even if the final video distributed was not encoded using their codecs! Let me show you how deep the rabbit hole goes.

Finally, we have the following insane story:

MobileMedia Ideas LLC didn't create a big stir when it launched in January. Instead, the holding company simply issued a press release in which it let the world know that it would "make available" its innovations, (which is, of course, generally considered to be patent-speak for, "We will be suing people shortly"). MobileMedia, which holds 122 patents it acquired from Sony and Nokia, was even quieter when it acted on its euphemistic pledge in March by filing separate infringement suits against three leading smartphone makers.

one of the companies targeted in MobileMedia's initial batch of suits is Apple (the others were BlackBerry maker Research in Motion and HTC). Apple happens to be among the companies that has contributed patents to MPEG-LA patent pools, including those covering the MPEG-4 and the IEEE 1394 (Firewire) standards.

The thing is, MobileMedia is owned by MPEG-LA – which means that Apple has contributed patents to the latter's patent pools, but is being sued by its subsidiary MobileMedia for patent infringement.

In fact, this situation partly explains why software patent suits are becoming more common. There are now so many patent thickets – groups of indispensable patents without which its impossible to operate in a given domain – that it's almost inevitable that everyone is infringing on something (which is why they are bad news for free software: it's simply not possible to code around them – there is *no* “around”....)

These patent thickets also demonstrate why the software patent system is a failure. Patents are supposed to encourage innovation – or, as Microsoft puts it, ensure that there is “a healthy and vibrant IT ecosystem". But that is precisely what patent thickets prevent: they block innovation, because in practice it remains dependent on pre-existing patents, giving the main players a choke-hold over startups. And the ecosystem can't flourish because the patent thicket forms a kind of barrier that rings the domain in every direction, preventing further growth.

The only hope can be that the growing number of self-cancelling patent lawsuits – where the only winners are the lawyers – will eventually bring if not the industry at least the courts to their senses. The big in re Bilski decision still hasn't been handed down, so we don't know what it will say or what its scope will be. Despite this, it still represents our best hope for a more rational approach to encouraging innovation than the terminally broken one the computing industry currently groans under.

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