I am not a fan of patents. I see companies of all sizes racing to patent new ideas, not because they particularly want or need to, but to give them a bulwark against law suits from other patent holders. In many cases a diversionary effort that in a better world could be devoted to core product innovation.
The situation has deteriorated in recent years due to three factors. First the rise of the patent troll—a company owning patents, but with no innovation of its own that makes money solely by legal intimidation of smaller players who cannot afford to fight back. Secondly the rise of the software patent—something permitted in the USA, and now steadily creeping into European law. And finally, overloaded patent offices leading to insufficient scrutiny of applications and as a consequence granting of overly broad and vague patents.
Quite how bad this has become was made clear to me in a conversation with one of the senior marketing staff of a major chip design house. I asked why they wouldn’t make the interface specs to some of their chips freely available, so the community could develop some decent open source device drivers. The response was that they would like nothing more, since it would further enhance their product’s reputation. But releasing their interface specs would give insight into how the chips might have been designed, and thence open them to attack from patent trolls. The legal costs associated with the troll threat were far greater than the market benefit of having better open source device drivers.
The current patent system is a particular menace to users and developers of open source software. Whenever open source gets a foothold it wipes out proprietary competition, simply because it is economically more efficient. You can see why developers of proprietary software feel threatened when Jim Whitehurst, CEO of Red Hat, asserts that he aims to build a $5Bn company, but to do so he must take out $50Bn of competition. IBM add fuel to the fire—the world’s biggest patent holder makes more money from open source than from the licensing of its patent portfolio. So it is not surprising to see the patent system used to attack open source software.
I want to see drastic reform of the patent system. But in the meantime I need to protect Embecosm, as well as our customers who depend on our software. To that end Embecosm has joined the Open Invention Network (OIN), an industry consortium with an ever-growing patent pool that facilitates cross-licensing, for mutual defence against those who would use patents against the Linux ecosystem. All members are protected, even companies like Embecosm which bring no patents to the table.
Like all but the largest companies, Embecosm on its own is vulnerable to legal attack through the patent system. However as part of the OIN, we have the backing of an organization large enough to help ensure a fair fight. I don’t like the world we are in, but at least Embecosm is now in a stronger position to protect free software.
