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Google, Open Source & Patent Reform

By Brian Prentice | August 06, 2009 | 3 Comments

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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  • Jonathan says:

    That might actually be a benefit of the proposed patent reform, reflecting the overall value of that supposed “invention” being patented.
    Software patents have been a bane on innovation, and many requests are submitted with no real regard as to whether or not they merit their own patent.
    The matter at heart isn’t the damage caused by infringement, it’s the nature of the patents themselves and the purpose they serve – much like the ancient, long obsolete copyright laws.

  • Jonathan – thanks for the thoughts. You mention that “many requests are submitted with no real regard as to whether or not they merit their own patent.” Well, that’s what the Patent & Trademark Office is there for. It’s their job to separate such submissions from those which represent a true advancement in the state of the art. Now, if there are patents out there that are neither novel, non-obvious or useful – and I think we’d at least agree that this is the case – then the problem is not with patents per say but with the PTO. I feel strongly that we must first address the operational challenges of the PTO before we start deciding the relative value of software patents as a mechanism to support innovation.

  • anon says:

    Open source advocates are simply fighting for an advantage they will never gain. Reality is that open source is not at all innovative, they build duplicates of closed-source/commercial products. Look around, the biggest “successes” of open source are: operating systems, web browsers, and web servers. Real innovation costs resources (read: time, $money, risks), those resources are paid for by investors (read: the developers working out of their garage investing their own time and money, or investors such as VC’s forking over cash), patents are still the only protection for the small or independent software shops. Large companies would love nothing more than to eliminate software patents because then they would be able to cut or drop their own R&D and instead place a couple guys on “competitive intelligence” and monitor up-and-comers and then outsource the copying-and-pasting to India or China with simple emails like “add feature X from vendor Y product Z to our product”. Remember – corporations are soul-less and only seeking the best return on investment for their investors – cutting costs is always going to happen (or at least for the smart ones).

    Any small guy or anyone in software innovation should be fighting like hell to strengthen software patents because in reality it’s the only protection around. Either that or move to China or India and get a software job copying-and-pasting features where your $20k salary will still provide a decent living because you sure can’t survive with that salary in the West.

    By the way, it’s not just developers at stake, it’s all the management, testers, VC’s, etc… as well because those can be shipped out as well.