Many commercial software vendors—IBM, Microsoft and Sun among them—have faced software patent claims. So it should come as no surprise that Linux is also susceptible to claims of patent infringement. Given the sorry state of the U.S. patent system, any technology—be it a standard commercial product or an open-source application—could face a damaging patent claim.
However, recent findings by Open Source Risk Management, an insurer focused on open-source liability, that Linux could be threatened by 283 issued patents does point out a potential problem for corporate users of Linux distributions. Unlike most commercial software vendors, no Linux vendor currently provides customers with the assurance that it will assist in a legal defense if a customer is hit with a patent infringement suit.
When the results of the OSRM study were released during the recent LinuxWorld conference, there were many calls to fix the broken patent system. Thats a laudable goal, but achieving it wont do much for current Linux users. Also at the conference, IBM Senior Vice President Nicholas Donofrio said IBM, the annual recipient of the largest number of patents worldwide, would never use its vast patent portfolio against Linux. That statement predictably drew cheers from many at LinuxWorld, but without the force of law behind it, customer fears cannot be fully assuaged. As the transformation of Linux vendor Caldera to Linux litigator SCO has shown, a company can quickly morph from open-source advocate to enemy in a short amount of time. If IBM really wants to make Linux customers comfortable, it should put this policy in writing.
A much more tangible statement was made by Red Hat when company executives said they plan to revise their Open-Source Assurance Plan to provide some form of intellectual property protection for customers. Such moves can go a long way toward easing any fears that corporate customers might have about potential patent infringement claims that may arise from their use of Linux.
We recommend that other Linux vendors such as Novell and, yes, resellers such as IBM, follow suit to offer similar patent infringement protections to their customers. This will put Linux products back in the same league as commercial products with regard to patents and let corporate customers get back to evaluating Linux and competing products on their merits without the distraction of legal issues.
As we write this, none of the 283 patents cited by OSRM has been used against Linux. And as the OSRM study points out, none of those patents has been validated in court. But its only a matter of time before some company using Linux finds itself the target of a legal claim for patent infringement. Linux vendors and resellers need to decide quickly whether they will let their customers face these threats alone—or stand with their customers. Red Hat is moving in the right direction, and others should follow.
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Editors Note: In the original version of this story, we erroneously referred to IBM as a Linux vendor. The story has been updated to correct this error.