* Free and Open Source Software The Public Patent Foundation and the Software Freedom Law Center, both of which are enforcement arms of the Church of FOSS Militant, have made a rather nasty allegation that Microsoft filed for a patent on some ideas that were actually developed in discussions of the Internet Engineering Task Force.
It is an odd charge. The interplay of corporate interest and standard-setting processes has received a lot of attention during the past few years, and most bodies have worked out reasonable disclosure rules; so far as I know, IETF is among them. The behavior charged is possible, but not really very likely, considering Microsoft's heavy involvement in standard setting, and the acute corporate awareness that it is everybody's favorite target.
In any event, the patent system is perfectly capable of determining whether the patent was justified. This sort of question -- did relevant and undisclosed prior art exist? -- is standard fodder. And there is no disagreement among the relevant players that patent quality needs to be improved. Indeed, not even repeat patenters such as Microsoft or the University of California, would contend that all their patents are justified; they are caught in a dynamic that forces them to push the envelope to seek dubious patents if PTO makes a practice of granting them. But the innovators would be better off with a reformed system in which they were not forced to waste time on the dross, which is one reason Microsoft recently threw its weight behind patent reform.
To make the current uproar odder, the patent was issued five years ago, so why the sudden interest?
I have a theory. I think the FOSS movement is falling steadily behind on the innovation front. As has been noted before, Linux is actually a commodity version of 30-year-old Unix technology. It is having success competing on a cost basis, but it is not the cutting edge. In fact, despite the boasting of the FOSS movement about being the wave of the future, and its superiority over the proprietary model, I think its weakness -- its failure to reward innovators -- is draining its innovative energy.
This poses a serious problem for FOSS as a movement. If it is not innovating itself, it needs access to the innovations produced by the proprietary sector. But the FOSS business model does not allow for this -- FOSS collects millions or even billions of dollars, but it comes in the form of general support or money paid for hardware or consulting services, and is not easily channeled into license fees for proprietary software. And, even if the money could be diverted, the license terms of the GPL do not mesh well with the license terms of the proprietary world, even if that software is available on RAND or even RAND-Z terms.
The upshot is that the FOSS movement must make intense attacks on the principle of patents because if FOSS does not get free access to the proprietary innovations, it will fall further and further behind. To my eyes, the FOSS movement looks like a Potemkin Village ("something that appears elaborate and impressive but in actual fact lacks substance").
If this suspicion is correct, it will be an ironic development for people who boast of their superiority, and of their intent to consign the proprietary movement to the dustbin of history. We will see how it plays out; but in the meantime, expect the attacks on patents to get increasingly shrill.
posted by James DeLong @ 2:34 PM | Software
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