Software Patents and Mutually Assured Destruction

Why, yes, I have. Many times.

Im also a realist. Maybe someday, PUBPAT (the Public Patent Foundation) and other patent-reform groups such as the Electronic Freedom Foundations Patent-Busting Project will succeed in getting rid of software patents, but Im not holding my breath.

Even with Microsoft backing some software patent reform, amazing but true, I just cant see significant changes to U.S. patent law happening anytime soon.

And lest we forget, Microsoft isnt exactly the most trustworthy company in the world when it comes to patents.

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Just this week, Microsoft announced that a new, integrated IPv4/IPv6 network stack would be in its upcoming Longhorn operating system. At the same time, lawyers for the Public Patent Foundation and the Software Freedom Law Center are concerned over a patent about automatic generation of IP addresses to facilitate simple network connections.

If my network-savvy readers say that sounds a bit like some of the features of IPv6 and DHCP (Dynamic Host Configuration Protocol), well yes it does, doesnt it.

Now, IPv6 isnt that important in North America at this time, but sooner or later, everyone on a TCP/IP network connected with the Internet is going to have to deploy it. Some people, with good reason I think, are concerned that Microsoft might use that patent to try to place a tariff on all programs that access the next generation of the Internet.

This is only part of what many see as a pattern of Microsoft getting ready to retroactively claim IP (intellectual property) rights over many of the Internets basic protocols.

Read more here about whether Microsoft is aiming to assert IP rights over the Internet.

Maybe they are, but Darl McBride, the CEO of The SCO Group, made me think that that may not be the case. We were talking about patents on Tuesday—no, SCO is not getting ready with a surprise patent lawsuit—and he said he didnt think Microsoft would dare use its patents in such a broad way.

His logic was that the technology world is a lot like the world situation of the 50s through the 80s, when the Soviet Union and the United States never went to outright war with each other because of the cynical but all too practical notion of MAD (mutually assured destruction).

In a nutshell, the policy of MAD was that things could never get too ugly between the United States and the Soviet Union because if one of us went too far, the other could bomb it into the stone age … and vice-versa.

How that applies to todays computing world is that if Microsoft started really throwing its patent weight around, IBM or Novell could retaliate in kind. Thus, if any one company tried to really strangle a large part of the market with an overly aggressive patent enforcement, they would be blasted by other companies with large patent portfolios. The end result would be that all of the companies involved would be locked into a software development doomsday, where nothing could be developed.

This isnt just idle speculation. After talking with McBride, I contacted several other people. Both a senior Novell executive and a prominent open-source attorney told me that if Microsoft ever tries to push too hard with its patents, other companies are more than ready to counter-attack with their own patent portfolios.

Click here to read about what Open Source Development Labs isnt doing, and what it could do, regarding patents.

Lets take this analogy a little further. The peaceful coexistence based on MAD between the Soviets and the Americans meant that we didnt see World War III. We did, however, see lots of brushfire wars in Afghanistan, Angola and Vietnam.

Thus, just because the big companies may never go too far with their patents with each other and worldwide technologies such as the Internet doesnt mean that smaller companies or open-source developers wont be attacked. They will be.

Of course, as the good people at Black Duck Software will tell you, a patent holder doesnt actually have to sue you for a violation. Just the mere threat is enough to stop a company from developing or marketing a program if it doesnt have the legal protection or deep pockets needed to fight a patent battle in the courts.

So, while I now think that were unlikely to see any truly broad attempts to abuse software patents, I still believe that software patents are bad in general and that, in specific, small companies and open-source developers are still vulnerable to the bullying of software-patent superpowers.

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