SOFTWARE PATENTS STRIKE BACK (PART II): In an excellent article in yesterday's TechNewsWorld.com, Heather J. Meeker posted a riposte to the open-source community's bellyaching over software patents. Specifically, she points out that, to date, open-source has a pretty impressive record in avoiding infringement claims in every area of IP. In fact, during the last ten years, very few intellectual property lawsuits have actually been filed relating to open source. The scorecard roughly looks like this:

• Trademark infringement suits: 1 (MySQL-NuSphere)
• Copyright infringement suits: 1/2 (SCO, after modifying the complaint)
• Trade secret infringement suits: 1/2 (SCO, original complaint)
• Patent infringement suits: 0

Why so few cases? Well, there are a couple of reasons:

One, many open-source projects are not-for-profit or marginally profitable. Large distributors of open source, like Novell or Red Hat, would be more profitable targets. But they are also the most likely to defend their position to the hilt, and not capitulate to demand letters.

Second, If damages are not an economically rational objective, that leaves injunctions -- which are attractive only to plaintiffs with competing products. Many open source products essentially have no competition. Those who compete with open source have their own problems. Also, any company that makes such a move risks excommunication from the software community and potentially creates a public relations nightmare. And as for the patent "trolls", they are obviously in it only for the money. If damages are not economically rational to seek, they will not seek them.

Finally, The success of patent lawsuits is tempered by doctrines of patent law like non-obviousness. A patent can be invalidated if the teachings of prior art render the claimed invention obvious. Since all open-source code is publicly available, the more open-source code is published, the fewer valid software patents will issue. This does not necessarily discourage lawsuits, because invalid patents can and do issue. But it makes patent lawsuits less successful.

Heather then offers the following challenge:

So, let's use the lovely technology of the Web to investigate this: Please comment on this article and, instead of explaining in theory why patents stifle innovation, give me examples -- name names, at least to the extent you can. Obviously, an actual patent lawsuit accusing open source would be highly visible and create headlines. What would not create headlines would be the kind of infringement threat that is quietly settled and swept under the rug. That is what I want to hear about. If patents are an immediate danger, I would like to know. But I want to hear facts, not rhetoric. And I also want to hear about the reaction to patent threats. Has the accused code been re-engineered? How long was it off the "shelf"?

So, to both the IP litigators who advise their clients that open source is dangerous, and the open source proponents who say that software patents are dangerous: If you think there is a troll under the bridge, you had better name him. Otherwise, people will think you are telling fairy tales.

Bravo.