Q&A: Simon Phipps talks on patent reform and Microsoft's claims that free and open-source software is infringing its patents.Sun Microsystems Chief Open Source Officer, Simon Phipps, spoke on the issues of software patents, patent reform and Microsofts claims that free and open-source software infringes the software companys patents. Phipps spoke with eWEEK Senior Editor Darryl K. Taft.
In Sun General Counsel Mike Dillons recent blog and in interviews, he commented Sun has been under attack by patent trolls. How can Sun complain when you are a patent holder?
Holding patents is different from being a patent troll. Mikes point is that patent trolls turn the patent system into an innovation tax. All U.S. companies of any substance hold a patent portfolio, since the patent system is an arms race where unilateral disarmament is fatal. Companies like Sun use patents for trading purposes within the computer industry—we dont use them to attack individuals, we use the portfolio "defensively." We invest in patents so that we can protect the things we make and have the freedom to use it to support our business model.
The open-source community is very vocal about software patents. Sun owns lots of them. Isnt that a contradiction for Sun to claim to be an open-source community member yet own software patents?
Not at all. Most companies engaging in free and open-source software hold software patents—even Red Hat. If you neglect patent filing, you risk various perils including others filing for patents on the same ideas and being unable to trade portfolios when an aggressor comes calling. What matters is not whether you hold them but what you do with them.
Sun does two things to create patent freedom for open-source developers working on free software. We issue non-assert covenants, which give a binding promise not to assert any patents against implementations of a given standard. (We issued one around OpenID last week, for example.) And we use open-source licenses (like CDDL) that convey the patent rights along with the copyright, so that developers can be sure they have all the same protections we and other community participants have.
Sun is clearly very critical of software patents, as evidenced in Sun Chief Technology Officer Greg Papadopoulos blog. What would Sun do to reform them?
Well, Sun is supportive of the Patent Reform Act of 2007, which Mike discusses in some detail in his blog. But I personally also believe we need to address some other issues too. If I were king (or at least an autocratic president), Id do some or all of these:
Since most use of patents is to force licensing in and out of court settlement to avoid injunctive relief:
- Limit the availability of injunctive relief to cases of prima facie willful infringement.
- Make it easy for patent licensees to recover their license fees if a patent is invalidated.
If we have to have software patents, their term and applicability needs control:
- Make them last no more than five years, renewable once.
- Make them unenforceable against ISO [International Standards Organization] standards (and possibly other bodies).
- Give immunity to implementations created in clean-room conditions for interoperability.
Since software patents require far less investment than other kinds, they should have a higher standard:
- Consider treating a failure to identify prior art as perjury.
- Require sample code to be filed with the patent.
Im not a lawyer so I dont know how workable all these are, but its clear something must be done.
Microsoft claims that their patents are infringed by free and open-source software; weve seen Jonathan Schwartzs blog, where he is providing his recommendations. Do you see Microsofts threat changing things for the free and open-source communities?
Im not seeing that. Nothing much has really changed—its just to a reminder to all of us in open-source communities that we need to work together on patent reform, patent safety for our communities and the modernization of open-source licenses and governance to maximize software innovation. To me that means freedom and community building, and not threats.
People are embracing OpenOffice with a renewed sense of enthusiasm as a vehicle to reduce cost and gain control over documents and file formats. Its happening around the world. Its called competition.
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