Last year, as part of Gartner’s Special Report on Open Source Software, I wrote a report titled Open Source at Google, 2008 (Gartner subscription required). In it I made the statement that:
Open source at Google is a key part of Google’s strategy, and Gartner expects it to become one of the most significant contributors to market-disrupting open-source projects
Since that report was published, new projects like Google Wave and Google Chrome OS have only reinforced that view. And that’s made me start wondering about Google’s advocacy of the Patent Reform Act of 2009.
One of the provisions in the Patent Reform Act of 2009 is to recalculate the way in which damages are determined when a patent has been infringed. Currently, infringing a patent can be a very costly mistake. But the proposed legislation would allow for a reasonable royalty to be calculated as the price of licensing a “similar non-infringing substitute in the relative market.”
Does that mean that free open source products can now be considered substitutes in a relative market? I’ve been trying to play the scenarios out in my head. If Google Wave, hypothetically, infringes a patent that IBM holds and they’re found guilty of doing so, could they simply claim that the relative market value is zero because there are existing free OSS mail and IM solutions? Once Google Wave is shipping, can other organizations infringe on patents Microsoft holds relative to Exchange comfortable in the knowledge that Wave creates a zero dollar relative market value for collaboration?
How about Microsoft’s claims that Linux infringes 235 of their patents? As far as I’m aware, those claims have not been tested in court. So, would the provision in the reform act force Microsoft into the courts (instead of into cross-licensing deals) in order to prove Linux is, in fact, an infringing substitute?
I’d be interested in any thoughts you may have. But it seems to me that a recalculation of damages, as proposed in the Patent Reform Act of 2009, would be a significant benefit to any organization using open source as a means to commoditize their competitors business. And that would certainly explain why Google is such a big advocate.
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