Software patents and free software#Patent retaliation

Community leaders such as Richard Stallman,{{cite web

|url=http://www.ifso.ie/documents/rms-2004-05-24.html

|title=Transcript of Richard Stallman speaking about software patents

}} Alan Cox,{{cite web

|url=http://www.linuxformat.co.uk/modules.php?op=modload&name=Sections&file=index&req=viewarticle&artid=15#patents

|title=Alan Cox on software patents

|date=2005-08-01

|access-date=2007-03-10

|archive-date=2008-12-29

|archive-url=https://web.archive.org/web/20081229064859/http://www.linuxformat.co.uk/modules.php?op=modload&name=Sections&file=index&req=viewarticle&artid=15#patents

|url-status=dead

}} Bruce Perens,[http://perens.com/Articles/Patents.html /home/bruce/Patents.html] {{webarchive|url=https://web.archive.org/web/20070305130408/http://perens.com/Articles/Patents.html |date=2007-03-05 }} and Linus Torvalds;{{cite web

|url=http://linux-foundation.org/weblogs/openvoices/linus-torvalds-part-ii/

|title=Linux Foundation Interview with Linus Torvalds, mostly talking about software patents

|access-date=2008-02-06

|archive-date=2008-02-05

|archive-url=https://web.archive.org/web/20080205205849/http://linux-foundation.org/weblogs/openvoices/linus-torvalds-part-ii/

|url-status=dead

}}{{cite web

|url=http://www.effi.org/patentit/patents_torvalds_cox.html

|title=Open Letter on Software Patents from Linux developers

|access-date=2007-03-10

|archive-date=2011-07-20

|archive-url=https://web.archive.org/web/20110720010536/http://www.effi.org/patentit/patents_torvalds_cox.html

|url-status=dead

}} companies such as Red Hat[http://www.redhat.com/legal/patent_policy.html redhat.com | Red Hat Patent Policy] and MySQL;[http://www.mysql.com/company/legal/patents.html MySQL AB :: MySQL Public Patent Policy] {{webarchive|url=https://web.archive.org/web/20080705175742/http://www.mysql.com/company/legal/patents.html |date=2008-07-05 }} and community groups such as FSFE[http://fsfeurope.org/projects/swpat/ FSFE - Software Patents in Europe] and IFSO[http://ifso.ie/projects/swpats.html Software Patentability & EU Directive COD/2002/0047] all believe that patents cause problems for free software.

Leading open-source figures and companies{{Cite web|url=http://www.networkworld.com/community/node/66807|title = Red Hat urges patent office to deny most software patents|date = 29 September 2010}} have complained that software patents are overly broad and the USPTO should reject most of them. Bill Gates has said "If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today".{{Cite web|url=http://news.swpat.org/2010/06/late-comers-guide-what-is-bilski-anyway/|title=Late-comers guide: What is Bilski anyway? – End Software Patents|date=28 June 2010 }}

Free software projects cannot agree to patent licences that include any kind of per-copy fee. No matter how low the fee is, there is no way for a free software distributor to know how many copies are being made. Also, adding any requirements to pay or to notify someone each time a copy is made would make the software no longer free software.{{cite web

|url=http://www.ifso.ie/documents/rms-2004-05-24.html#license

|title=The Dangers of Software Patents

|author=Richard Stallman

}}

A patent licence that is royalty-free, or provides a one-time worldwide payment is acceptable. Version 2 of the GNU General Public License does not allow software to be distributed if that software requires a patent licence that does not "permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you".{{cite web

|url=https://www.gnu.org/licenses/old-licenses/gpl-2.0.html

|title=GNU General Public License version 2

}}

The Version 2 of the GNU General Public License{{cite web|url=https://www.gnu.org/licenses/old-licenses/gpl-2.0.html|title=GNU General Public License version 2}} of 1991 also says that patents convert free software to proprietary software:

"Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all."

In 2004, Open Source Risk Management commissioned a patent study, carried out by Dan Ravicher. For this study, Ravicher performed patent searches to estimate the patent-risk of the Linux kernel:{{cite web

|url = http://www.osriskmanagement.com/press_releases/press_release_080204.pdf

|title = OSRM PR: Results of First-Ever Linux Patent Review Announced

|url-status = dead

|archive-url = https://web.archive.org/web/20080703214013/http://www.osriskmanagement.com/press_releases/press_release_080204.pdf

|archive-date = 2008-07-03

}}

In conclusion, he found that no court-validated software patent is

infringed by the Linux kernel. However, Ravicher also found 283 issued but

not yet court-validated software patents that, if upheld as valid by the

courts, could potentially be used to support patent claims against Linux.

"Patent retaliation" clauses are included in several free software licenses. The goal of these clauses is to create a penalty so as to discourage the licensee (the user/recipient of the software) from suing the licensor (the provider/author of the software) for patent infringement by terminating the license upon the initiation of such a lawsuit.

Early drafts of version 3 of the GNU General Public License (GPLv3) contained several patent retaliation clauses that varied in scope, some of which were later removed due to concerns about their efficacy.{{cite web

|title=Richard Stallman speaking about GPLv3 in April 2007

|url=https://fsfe.org/activities/gplv3/brussels-rms-transcript.en.html#retaliation}} The final published version of GPLv3 contains a patent retaliation clause similar to those in the Apache License and Mozilla Public License, which terminates rights granted by the license in response to litigation alleging patent infringement in the software.{{cite web |website=GNU Project |publisher=Free Software Foundation |url=https://www.gnu.org/licenses/gpl-faq.html#v3PatentRetaliation |title=GPL FAQ: Does GPLv3 have a 'patent retaliation clause'?}}

In 2005, IBM, Novell, Philips, Red Hat, and Sony founded the Open Invention Network (OIN). OIN is a company that acquires patents and offers them royalty free "to any company, institution or individual that agrees not to assert its patents against the Linux operating system or certain Linux-related applications".{{cite web | date=November 10, 2005 | url=http://www.openinventionnetwork.com/press_release11_05.php | title=Open Invention Network formed to promote Linux and spur innovation globally through access to key patents | publisher=Open Invention Network | access-date=April 17, 2006 | url-status=dead | archive-url=https://web.archive.org/web/20060812033542/http://www.openinventionnetwork.com/press_release11_05.php | archive-date=August 12, 2006 }}

Novell donated the valuable Commerce One web services patents to OIN. These potentially threaten anyone who uses web services. OIN's founders intend for these patents to encourage others to join, and to discourage legal threats against Linux and Linux-related applications. Along with several other projects, Mono is listed as a covered project.

Movements have formed to lobby against the existence and enforceability of software patents. The earliest was the League for Programming Freedom in the USA. Probably the most successful was the anti-software-patent campaign in Europe that resulted in the rejection by the European Parliament of the Proposed directive on the patentability of computer-implemented inventions which, the free software community argues, would have made software patents enforceable in the European Union. A fledgling movement also exists in South Africa.{{cite web

|url = http://www.ftisa.org.za/

|title = Freedom to Innovate South Africa

|url-status = dead

|archive-url = https://web.archive.org/web/20070520060215/http://www.ftisa.org.za/

|archive-date = 2007-05-20

}}

Some software companies who hold significant patent portfolios have made non-aggression pledges to the free software community. These have varied in scope and have received a variety of responses. IBM,{{cite web

|url=http://linuxdevices.com/news/NS9492990539.html

|url-status=dead

|title=Top patent awardee donates 500 patents to open source

|date=2005-01-11

|publisher = Ziff Davis Publishing Holdings Inc.

|work = LinuxDevices.com — news

|archive-url = https://web.archive.org/web/20050114160320/http://www.linuxdevices.com/news/NS9492990539.html

|archive-date = 2005-01-14

}} Sun, and Nokia{{cite web

|url=http://linuxdevices.com/news/NS8236182857.html

|url-status=dead

|title=Nokia gives Linux bye on patents

|date=2005-05-26

|publisher = Ziff Davis Publishing Holdings Inc.

|work = LinuxDevices.com — news

|archive-url=https://web.archive.org/web/20050528105028/http://www.linuxdevices.com/news/NS8236182857.html

|archive-date = 2005-05-28

}} are three examples. These have been described by Richard Stallman as "significant", "not really anything", and "next to nothing", respectively.{{cite web

|url=http://www.linuxdevices.com/articles/AT4665245733.html

|url-status=live

|title=Nokia's patent announcement next to nothing

|author=Richard Stallman

|date=2005-05-30

|publisher = Ziff Davis Publishing Holdings Inc.

|work = LinuxDevices.com — news

|archive-url=https://web.archive.org/web/20051210194015/http://linuxdevices.com/articles/AT4665245733.html

|archive-date=2005-12-10

}}

Microsoft has irrevocably pledged not to assert any claims against open source developers{{cite web

|url=http://www.microsoft.com/interop/principles/osspatentpledge.mspx

|archive-url=https://web.archive.org/web/20080301234058/http://www.microsoft.com/interop/principles/osspatentpledge.mspx

|url-status=dead

|archive-date=2008-03-01

|title=Microsoft Patent Pledge for Open Source Developers

|author=Microsoft

|website=Microsoft

|access-date=2009-12-07

}} which CEO Steve Ballmer called "an important step and significant change in how we share information about our products and technologies."{{cite web

|url=http://www.microsoft.com/presspass/press/2008/feb08/02-21expandinteroperabilitypr.mspx

|title=Microsoft Makes Strategic Changes in Technology and Business Practices to Expand Interoperability

|author=Microsoft

|website=Microsoft

|access-date=2009-12-07

}} This pledge has been accepted with some skepticism.{{cite web

|url = http://www.gartner.com/DisplayDocument?doc_cd=155733

|title = Microsoft Declares Interfaces Accessible; Royalties May Apply

|author1 = George J. Weiss

|author2 = Matthew W. Cain

|author3 = Nikos Drakos

|access-date = 2009-12-07

|url-status = bot: unknown

|archive-url = https://web.archive.org/web/20120910183540/http://www.gartner.com/DisplayDocument?doc_cd=155733

|archive-date = 2012-09-10

}}

Microsoft has claimed that free software such as OpenOffice.org and the Linux kernel violate 235 Microsoft patents and said that it will seek licence fees,{{cite web |last=Parloff |first=Roger |date=2007-05-14 |title=Microsoft takes on the free world |url=https://fortune.com/2007/05/28/microsoft-linux-intellectual-property/ |access-date=2022-12-17 |publisher=Fortune}} but has so far failed to disclose which patents they may violate. However, the 2009 lawsuit against TomTom involved the use of Microsoft's patents for long filenames on FAT filesystems, the code for which was in the Linux kernel, not in any TomTom-developed software.{{cite web

| url=http://news.cnet.com/8301-10805_3-10173126-75.html

| title=Open-source leaders see Microsoft-TomTom suit as a threat

| publisher=CNet

| date=2009-02-26

| last=Mills

| first=Elinor

| access-date=2010-06-10

| archive-date=2011-06-17

| archive-url=https://web.archive.org/web/20110617024457/http://news.cnet.com/8301-10805_3-10173126-75.html

| url-status=dead

}} The Linux kernel developers subsequently worked around it.See the kernel option VFAT_FS_DUALNAMES

In 2011 a company called Bedrock Technologies LLC won a judgment of $5 million against Google for use of the Linux kernel, which the court found to violate US patent 5,893,120 (which was filed in 1997 and issued in 1999, and covers techniques for software caches likely used in every modern operating system). Bedrock went on to sue Yahoo and lost; Yahoo's defense amounted to the use of a different version of Linux which did not execute the particular code that Bedrock had pointed out as infringing,{{cite web |url=http://www.itworld.com/article/2742293/open-source-tools/yahoo--wins-verdict-in-bedrock-patent-trial.html |title=Yahoo! wins verdict in Bedrock patent trial {{!}} ITworld |website=www.itworld.com |url-status=dead |archive-url=https://web.archive.org/web/20150409031602/http://www.itworld.com/article/2742293/open-source-tools/yahoo--wins-verdict-in-bedrock-patent-trial.html |archive-date=2015-04-09}} but the Yahoo case did not invalidate Bedrock's patent.{{Cite web|url=http://www.h-online.com/open/news/item/Yahoo-wins-Linux-patent-trial-that-Google-lost-1243687.html|title = Yahoo wins Linux patent trial that Google lost - the H Open: News and Features}} Details of exactly which code Bedrock said infringed the patent and how Yahoo managed to avoid executing that code are not publicly available.

In January 2008, Trend Micro accused Barracuda Networks of patent infringement for distribution of the ClamAV anti-virus software.{{cite web

|url=http://www.linuxworld.com/news/2008/012908-barracuda.html

|title=Barracuda turns to open source users for patent research

|access-date=2008-01-30

|archive-date=2008-01-31

|archive-url=https://web.archive.org/web/20080131212827/http://www.linuxworld.com/news/2008/012908-barracuda.html

|url-status=dead

}}{{cite web

|url=http://www.barracudanetworks.com/ns/legal/

|title=Legal Defense of Free and Open Source Software

|publisher=Barracuda Networks

|access-date=2008-01-30

|archive-date=2008-01-31

|archive-url=https://web.archive.org/web/20080131140440/http://www.barracudanetworks.com/ns/legal/

|url-status=dead

}}

{{See also|Novell#Agreement with Microsoft|l1=Novell's patent agreement with Microsoft}}

In November 2006, a highly controversial agreement was made between Novell and Microsoft that included patent licensing.{{cite web

|url=http://www.microsoft.com/interop/msnovellcollab/patent_agreement.mspx

|title=The MS-Novell patent deal

|website=Microsoft

}} This led to much criticism of Novell by the free software community.{{cite web

|url = http://techp.org/petition/show/1

|title = Bruce Perens's petition criticising Novell

|url-status = dead

|archive-url = https://web.archive.org/web/20090118053505/http://techp.org/petition/show/1

|archive-date = 2009-01-18

}}

In June 2007, Xandros announced a similar deal.{{cite web | url = http://www.groklaw.net/article.php?story=20070604183519938 | title=Groklaw article on Xandros' Microsoft deal}}{{cite press release |url = http://www.microsoft.com/presspass/press/2007/jun07/06-04XandrosPR.mspx | title=Microsoft, Xandros Broad Collaboration Agreement Extends Bridge Between Commercial Open Source and Microsoft Software }}{{cite press release | url=http://forums.xandros.com/viewtopic.php?t=31406 | title=Xandros community forums, first thread on this topic | url-status=dead | archive-url=https://web.archive.org/web/20070928031448/http://forums.xandros.com/viewtopic.php?t=31406 | archive-date=2007-09-28 }}

On June 13, 2007, a deal was reached between Microsoft and Linspire.[http://desktoplinux.com/news/NS9642338710.html Linspire, Microsoft in Linux-related deal] {{webarchive|url=https://web.archive.org/web/20070616135029/http://www.desktoplinux.com/news/NS9642338710.html |date=2007-06-16 }} In return, Linspire would change its default search engine from Google to Live search.[http://linux.slashdot.org/linux/07/06/14/1227201.shtml Slashdot | Linspire Signs Patent Pact With MS]

Ubuntu founder and director Mark Shuttleworth has said that Ubuntu will not be making any such deal,{{cite web

|url=http://www.markshuttleworth.com/archives/127

|title=No negotiations with Microsoft in progress

|access-date=2007-06-25

|author=Mark Shuttleworth

|author-link=Mark Shuttleworth

|date=2007-06-16

|work=here be dragons

|quote=We have declined to discuss any agreement with Microsoft under the threat of unspecified patent infringements.

}} as have Red Hat.{{cite web|url=http://www.zdnet.com.au/ubuntu-red-hat-reject-microsoft-patent-deal-339278741.htm |title=Ubuntu, Red Hat reject Microsoft patent deal |url-status=dead |archive-url=https://web.archive.org/web/20110607083033/http://www.zdnet.com.au/ubuntu-red-hat-reject-microsoft-patent-deal-339278741.htm |archive-date=June 7, 2011 }} These have been joined by a weaker statement from Mandriva{{cite web

|url=http://corp.mandriva.com/webteam/2007/06/19/we-will-not-go-to-canossa/

|title=We will not go to Canossa

|access-date=2007-06-20

|archive-url = https://web.archive.org/web/20070621141310/http://corp.mandriva.com/webteam/2007/06/19/we-will-not-go-to-canossa/ |archive-date = 2007-06-21}} that "we don’t believe it is necessary for us to get protection from Microsoft".

In October 2007, IP Innovation LLC, a company specialized in patent-protection, filed a suit for patent infringement against Red Hat and Novell.{{cite web

| url=http://blogs.zdnet.com/Berlind/?p=833&tag=nl.e622

| title=First patent suit against Linux has a Kevin Bacon-esque connection to Microsoft

| quote=LLC is a subsidiary of Acacia Research Corporation... This past July Acacia hired Jonathan Taub away from his job as Director, Strategic Alliances for the Mobile and Embedded Devices (MED) division at Microsoft and then, just last week, it hired Brad Brunell away from his job at Microsoft where, among other jobs, he served as General Manager, Intellectual Property Licensing.

| last=Berlind

| first=David

| publisher=zdnet

| date=2007-10-11

| access-date=2007-10-12

| archive-date=2007-10-24

| archive-url=https://web.archive.org/web/20071024002116/http://blogs.zdnet.com/Berlind/?p=833&tag=nl.e622

| url-status=dead

}}{{cite web

| url=http://www.groklaw.net/article.php?story=20071011205044141

| title=Patent Infringement Lawsuit Filed Against Red Hat & Novell - Just Like Ballmer Predicted

|publisher=groklaw

| date=2007-10-11

| access-date=2007-10-12}}The U.S. patent 5,072,412 concerns the desktop User Interface, see [https://patents.google.com/patent/US5072412 here] However, IP Innovation LLC is a subsidiary of a company classified by some as a patent troll,{{cite web

|url = http://www.linux-watch.com/news/NS2013674721.html

|archive-url = https://archive.today/20130103223944/http://www.linux-watch.com/news/NS2013674721.html

|url-status = dead

|archive-date = 2013-01-03

|title = Patent-troll company attacks Novell and Red Hat

|date = 2007-08-12

|access-date = 2009-12-07

}} and commentators suspect a strong connection between this company and Microsoft. In 2010, IP Innovation lost the suit.{{Cite web |title=Red Hat & Novell Beat IP Innovation and in Marshall, Texas, too | url = http://www.groklaw.net/articlebasic.php?story=20100430223358785 |archive-url=https://web.archive.org/web/20100611210642/http://www.groklaw.net/articlebasic.php?story=20100430223358785 |archive-date=11 June 2010 |publisher=Groklaw |date=30 April 2010 | access-date = 5 July 2013 }}

In December 2007, Microsoft granted the Samba project access to certain proprietary documents and must maintain a list of related patents for a one-time fee of 10,000 Euros.{{cite web

| url=http://samba.org/samba/PFIF/index.html

| title=Samba Team Receives Microsoft Protocol Documentation

| author=The Samba Team

| date=2007-12-20

| access-date=2009-12-07}} Microsoft was required to make this information available to competitors as part of the European Commission March 24, 2004 Decision pertaining to antitrust violations.

{{Portal|Free and open-source software}}

• Software patent
• Software patent debate
• Patentleft

{{Reflist|2}}

• [https://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/index.htm CNN: Microsoft takes on the free world], discusses Microsoft and FSF's position regarding software patents and free software
• [https://www.gnu.org/patent-examp/patent-examples.html Examples of Software Patents that hurt Free Software], published by Free Software Foundation
• [http://en.swpat.org/wiki/Free_software_projects_harmed_by_software_patents Free software projects harmed by software patents], End Software Patents

{{FOSS}}

{{DEFAULTSORT:Software Patents And Free Software}}

Category:Software patent law

Patents