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Free '' Libre '' OpenSource Software and Patents

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Special Vulnerability of Free/OpenSource Software

Free/Libre/!OpenSource Software (FLOSS) is affected by patents in special ways. The effects on shareware are in part similar. They include

  1. exclusion from licensing of most patents

00 exclusion from licensing of any patent that imposes a per-copy-fee 00 exclusion from licensing of any patent that imposes a lumpsum entry fee 00 in summary: usually nobody will pay the typical patent license fees for free software. This is particularly true of uniform-fee-only (UFO = RAND) licenses such as those preferred by Microsoft and the European Commission. Whenever an unavoidable feature (e.g. one needed for interoperation) is patented with a UFO license, free software becomes completely incompetitive for 20 years.

  1. visibility

00 patent infringments by open source software are easy to prove 00 the only advantage is that in some cases this helps find prior art

  1. vulnerability of the players

00 anyone who produces or uses can be attacked, and nobody comes to rescue: 000 floss authors do not have the monetary ressources to protect themselves and their users against such attacks 000 big FLOSS companies such as IBM & HP will not use their private ressources to come out to rescue a public good (see below) 00 mitigation of these risks costs extra money, thereby making free software expensive 000 Microsoft correctly uses this fact for calculating a higher "total cost of ownership" (TCO) of its main competitor and thereby staying in business 000 In fact the extra cost can be paid to insurers such as OSRM who however only offer partial protection against the risk

Won't Big Companies like IBM help ?

IBM is not even willing to make its own software patents generally available for use in free software and even less so to spend its private ressources to defend a public good. Whenever a GNU/Linux system is encumbered by patents, IBM's reaction usually is to ask its suppliers to withdraw the feature. IBM will not even use its standing to secure a license from friendly companies who would be willing to give one, see the TTF case.

Moreover IBM's patent lawyers are pushing for unlimited patentability and unfettered patent enforcement (including enforcement of patents against standards and interfaces) in the EU.

Although not everybody is as aggressively lobbying for unlimited patentability as IBM, no company is willing to use its private ressources for public goods, and there are few reasons to assume that this could change.

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