At the Linux Foundation's annual LinuxCon event this week, Columbia University law professor and Software Freedom Law Center founder Eben Moglen explained that the prospects for software patent reform are bleak and that the time has come for the free software community to start finding ways to solve its patent problems by using the patent system itself.

The rapid proliferation of broad patents that cover software methods has turned the technology industry into a litigation minefield. It's difficult for a startup to develop a new product without treading on patents held by incumbent industry giants. Software patents are especially problematic for open source software because patent licensing is largely incompatible with the principles of unrestricted redistribution that are inherent to open source software licenses.

During the keynote presentation, Moglen described the patent system as a swamp of "secrecy, obscurity, and complexity," that paradoxically undermines its own goal of encouraging innovation. Unfortunately, he says, the swamp can't be drained.

Most stakeholders—regardless of their views on software patentability—agree that the US patent system is vastly overburdened to a degree that is unsustainable and that the manner in which damages for infringement are awarded is grossly inconsistent. Despite the growing number of obvious problems with the patent system, lawmakers have repeatedly failed to build consensus around legislative solutions and the courts have also failed to deliver a remedy.

Moglen expressed disappointment with the Supreme Court's handling of the recent Bilski case—a dispute over the validity of a business method patent. Critics of software patents had hoped that the courts would use the Bilksi ruling as an opportunity to reshape the scope of patentable material in a manner that would reign in abusively broad patents that cover software processes. Although the SCOTUS rejected the specific patent at issue in the Bilski case, the court declined to limit the scope of software patentability.

The stalled efforts at legislative reform and the lack of clarity from the courts have made it increasingly clear that the patent system isn't going to be fixed any time in the near future. Moglen contends that the free software community's only recourse is to find innovative solutions that will work within the boundaries of the existing patent system.

The outcome of the Bilski case suggests that fighting the patent system won't lead to victory, but the system can potentially be adapted to serve open source interests—in much the same way that copyleft licenses rely on copyright law in order to function.

According to Moglen, the key to successfully mitigating the patent threat is to form institutions that offer a common patent defense for free software. He highlighted the Open Invention Network (OIN) as a key example and described the group as an essential defender of freedom.

Originally founded in 2005 by some of the biggest companies in the open source software ecosystem, the OIN has accumulated a powerful patent pool for defending the Linux platform and technology ecosystem from patent litigation. In the event that any of the open source software components that are defended by the OIN are attacked with the patent suit, the group will counterattack using its own patents.

OIN's patent pool includes enormously broad patents that cover all kinds of different areas of technology. OIN's threat of retaliatory litigation is intended to deter lawsuits against Linux and—if necessary—could be used to negotiate cross-licensing agreements that are favorable to Linux.

One of the main themes of Moglen's keynote is the power of collaboration between commercial business interests and the free software community. He argues that the economy of sharing that the free culture movement seeks to elevate is not mutually hostile with the mostly taken-for-granted and longstanding economy of ownership. In fact, he thinks that the sharing and ownership economies are mutually reinforcing.

He points to the commercial success of open source software as evidence that business and freedom can coexist as allies. He says that the challenge ahead is to make the patent system fit into that coexistence and tame it so that it isn't a perpetual threat. Collective patent defense efforts like the kind driven by the OIN are going to be essential to achieving that goal, he argued.

Holes

The underlying idea behind the OIN has a lot of merit and the group is clearly serving an important function. Despite the value that such patent pooling provides for the open source software community, there are still some significant holes in that strategy.

The most substantial weakness of the OIN is that the threat of retaliation is not going to deter patent-holding companies that make no products from filing infringement lawsuits. Such companies, which are described derisively as patent trolls, have no interest in cross-licensing agreements and have no fear of being sued for infringement themselves because they don't actually make anything.

It's still unclear how the industry can establish a common patent defense against trolls. Until that problem is solved, groups like the OIN will only be able to provide partial protection.

Another issue is that the OIN is focused on protecting a specific set of technologies that are considered fundamental to the Linux platform—it doesn't include the broader open source ecosystem. The scope of OIN's protection would have to be broadly expanded or other organizations would have to be formed to protect other open source software stacks.

Moglen didn't address those specific issues during his keynote, but he did acknowledge that more work will be needed in order to build comprehensive solutions. He warns that stakeholders will need to pursue mutual patent sharing in ways that don't make the system worse. It will be difficult, and there will be a lot of risks.

"We need careful navigation through the shoals of the patent system," Moglen said. "There are trolls and failing monopolists on all sides."

Above all else, he warned, the free software community must not become complacent, because the problem will only be solved if people care and look for solutions.

Listing image by Han Soete