Lawyers Weigh In on Linux Patent Threat

With 283 software patents issued but not yet court-validated that could potentially be used in patent claims against Linux, should vendors or users be concerned about the risk?

Open Source Risk Management (OSRM), a provider of open-source consulting and risk mitigation insurance, announced last week that it has found that there are 283 issued, but not yet court-validated, software patents that could conceivably be used in patent claims against Linux. In that same week, the German city of Munich temporarily put its planned Linux desktop migration on hold due to Linux patent concerns.

Open Source Risk Management (OSRM), which will be offering a patent litigation insurance policy for Linux users and developers starting in 2005, has a clear business interest in the results of its study, but that doesnt mean that its research isnt right.

How serious are Linux patent concerns? We asked several intellectual property lawyers for their thoughts on Linux and the risk associated with it from patent lawsuits.

"Like patents in any other rapidly evolving area of technology, software patents can be a threat," said Thomas K. Stine, an experienced patent prosecutor and litigator with Chicago-based Marshall, Gerstein & Borun LLP.

But potential patent problems are far from limited to Linux.

"With the explosion in the number of patents issued over the past decade, it is not surprising that potential patent infringement claims exist against the Linux Kernel," said Allonn Levy, an attorney with Hopkins & Carley in San Jose, Calif.

"Indeed, most software available today comes with any number of such potential patent claims. Unfortunately, the degree of risk—and the question of whether actual infringement exists—can really only be answered through litigation," Levy said.

Kelly Talcott, an intellectual property partner in the New York office of the national law firm of Kirkpatrick & Lockhart LLP, agreed. "OSRMs announcement simply puts a number to a fact that the software industry has been living with for years. With the increasing number of issued software patents comes the increasing possibility of being sued for infringement. This affects all flavors of software, not just Linux."

"In straight numerical terms, the threat is probably no greater for Linux vendors and users than it is for other operating systems. That is because many software patents are not language-specific, but read on general processes that can be implemented in more than one way," Talcott said.

Bradley M. Kuhn, executive director of the Free Software Foundation (FSF) added that the news "isnt a surprise."

"The U.S. Patent Office has been granting patents at an alarming rate. In fact, its likely difficult today to write any software program—be it free software or proprietary—from scratch that does not exercise the teachings of some existing software patent in the U.S.A."

Moreover, the "FSF has long warned that software patents were very dangerous not only to free software, but to the software industry as a whole. We firmly believe that the world would be a much better place without software patents," Kuhn said.

Next page: What should Linux developers and users do?