Update:I tried to embed the slides from the talk but, unfortunately, SlideShare kept messing up my blog’s layout. You can find a copy of the slides here.
Here is the presentation I gave at PESC on April 23rd. (Thanks to the good folks at im+m for recording and archiving the audio of the talk.)
I’d like to make just a couple of additional comments:
First, although the the recent Supreme Court ruling on KSR v. Teleflex was encouraging, it is certainly not the definitive end to the danger. We don’t yet know how broadly the lower courts and the USPTO will interpret the ruling, and there still are plenty of patents out there (e.g., Firestar Software v. Redhat) that could cause problems despite this ruling. Then there’s the fact that you still need to go through expensive litigation to get the many bogus patents out there invalidated. In short, the best we can say is that the threat level has gone from “orange” to “yellow.” (I apologize for the unfortunate metaphor, but it’s the best I can think of at the moment.)
Second, although I advocate in my talk for voluntary non-assertion agreements such as those that have been offered by IBM, Microsoft, and now Blackboard, please don’t interpret that as a comment on the merits of Blackboard’s specific non-assertion promise. What I want to say is that (a) in general, we’re only going to solve the whole problem with the voluntary cooperation of patent holders participating in the educational software industry, (b) when a vendor makes a step in this direction (even a problematic one), we should think carefully about whether there is a way to avoid throwing the baby out with the bathwater, and (c) in an ideal world, I’d like to see all educational software protected for the K-12 and higher ed markets, not just Open Source software.
According to IMS and Alliance for Higher Education Competitiveness “All segments of the U.S. higher education IT market are expressing significant interest in open source software products. Open source is gaining mindshare from four directions: spillover from commercial open source initiatives (such as Linux, Apache, OpenOffice), grant-funded open source initiatives in higher education specific application areas (course management, portal, financial systems, student portfolios), market-driven open source initiatives in higher education specific application areas (course management), and open source compatible higher education specific applications (course management, portal). So while LMS adoption is one of the four primary areas of interest on campuses, Linux adoption, at 51% according to the report, is leading open source adoption.
This week Microsoft claimed Linux and other open source software projects violate 235 of its patents, but has declined to elaborate further in case open source developers challenge their legitimacy.
USAToday reports, “Microsoft has struck a number of patent-licensing deals with companies that use open source code, most notably Novell last November. In one aspect of the deal, Microsoft agreed to sell Novell’s flavor of Linux, called Suse. It also agreed not to sue the customers who bought it, even though it claims the open-source software infringes on its patents.” (http://www.usatoday.com/tech/techinvestor/industry/2007-05-15-microsoft-patents_N.htm)
How does Microsoft’s patent-licensing deals and agreements not to sue OSS users, even before patents claims are validated, jibe with your advocation for “non-assertion agreements”?
It doesn’t. Microsoft has refused to identify the patents upon which linux supposedly infringes. Given this fact, and the fact that they have not actually sued anybody yet, there’s good reason to speculate that their patents are not effectively enforceable for them. Who are they going to sue? Their customers?
The unfortunate reality is that there will be cases in which Open Source projects will need to pay patent royalty fees. However, it is not at all clear that this is one of those cases.