A week after Sun Microsystems Inc. touted its release of some 1,600 Solaris software patents, the company is fielding criticism for limiting the use of those patents to OpenSolaris project developers.
Despite claims that they had significantly trumped IBM, which last month released 500 software patents to any developer working on an approved project, Sun officials last week conceded that the language in their CDDL (Common Development and Distribution License) restricts the use of Sun patents to projects under the CDDL.
"It is not Suns intent to sue members of the open-source community at large, but rather to provide protection for developers working with OpenSolaris technology," said Tom Goguen, vice president of Suns operating platforms group, in Santa Clara, Calif. "In contrast, IBM and others have offered only pledges covering a relatively small and mostly irrelevant set of patents."
Sun executives said the company is committed to building the OpenSolaris community and to protecting its members. To that end, the CDDL includes both a Patent Grant and Patent Peace structure. "As a legal device, these structures are much stronger than pledges and typically more relevant, as they cover the patents directly associated with technology embodied in the source code," Goguen said.
Some in the community have called for a public and written pledge from Sun that removes any legal liability should developers use the patented technology. So far, Sun has not released such a pledge.
While the CDDL does not permit mingling its code with code under the GNU GPL (General Public License)—which governs Linux—a pledge that allows freely granted patents could enable higher-level sharing and let programmers mine Solaris for ideas.
Bob Sutor, vice president of standards for IBM, welcomed Suns decision to open its patents but said the big difference between the two patent moves is that Sun is not pledging its patents for use in any open-source project, as IBM, of Armonk, N.Y., had done.
"If you want to use these on Linux, you are out of luck," Sutor said. "By restricting things to CDDL, they have not gone the whole 10 yards to support the open-source use of these. This is a shame because it was a good opportunity to do so."
Linux kernel creator Linus Torvalds agreed, saying that he would have liked Suns patent grant to be broader and would have preferred Sun use an existing OSI-approved license rather than create the new CDDL.
Eben Moglen, general counsel for the Free Software Foundation and a board member of the Public Patent Foundation, said Sun is trying to prevent the mingling of code licensed under the CDDL and the GPL. "I believe that they will be successful in continuing to hold to that goal," Moglen said.