The European Commission's decision on Monday to reject demands to rewrite the Computer Implemented Inventions Directive could seriously damage open source software development in Europe, according to a legal expert.
Jeremy Mark Malcolm, an information technology lawyer specialising in Internet-related law and speaker at the forthcoming Linux conference in Canberra, told ZDNet UK sister site ZDNet Australia that patent laws could damage the European open source development community.
"It may perhaps stop some of the development that is going on in Europe on open source. You may find that some people developing software over there will have to stop doing it because of the threat of being sued over patent violations," said Malcolm.
According to Malcolm, who admits to being against software patents, said there is 'no question' that Linux already violates a number of patents, which could lead to further litigation.
"There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated," said Malcolm.
The CIID has sparked many months of argument, debate and confusion within Europe. It has yet to be formally adopted by the European Council, but if this does happen the directive will return to the Parliament. The EC spokesman said he understood that the Council is planning to put the CIID on the agenda of the March 7 meeting.
Malcolm said that confusion surrounding the future of software patents is also very damaging to companies and an early settlement, either way, is necessary.
"What is more important is that we have certainty -- one way or another. Either software patents are allowed or they are not. This has been going back and forth since 2002 and one way or another it has to be sorted out," said Malcolm.
Munir Kotadia reported from Sydney for ZDNet Australia. For more ZDNet Australia stories, click here.
Graeme Wearden contributed to this report.
Talkback
The most important thing is that we abolish software patents everywhere and not that we get finality in the EU. The current situation is far preferable to having the EU adopt software patents, but not nearly as good as abolishing them completely. It should be absolutely clear that the primary purpose of software patents is not to encourage innovation but to stifle competition. That results in higher software prices for everybody for the benefit of a few software monopolists. It should be pointed out that the purpose of patents iis to provide inventors with enough incentive to disclose their invention so that useful inventions are not taken to the grave. That isn't possible with software which is justification enough for excluding software from patent protection.
SHOW ME!
"There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated," said Malcolm
Show me, Malcolm. Otherwise I can only contrue your comments as pure unadulterated FUD.
RE: SHOW ME!
The guy is a patent lawyer, he HOPES there are patent problems with Linux. When you spend enough time hoping something is true, occasionally you come to believe it, without any additional proof.
Who knows, perhaps he's even got a few patents ready to go, based on current concepts, to be filed the moment the new software patents are allowed. The hope that (baseless) harrassment can lead to a few bucks is alive and well, after all. Then again, maybe the EU, if they mistakenly pass software patents, will be intelligent enough to put in provisions for punishing companies/people who file harrassment patents.
Sadly, I think this concept will probably be embraced by MS and other companies that no longer have strong product lines, and are simply running on inertia. On the upside, even if someone finds a way to win a bogus patent suit, SCO's attempt to take on the entire Linux world (and eventually the entire software world) will hopefully dissuade them from engaging in something so insurmountable.
Besides, for legitimate complaints, Linux already has a built in failsafe, namely, the ability and willingness of developers to remove imposing code. If such a situation ever did come up, there would be little reason to go to court to correct the situation outside of greed. Who knows, maybe the developers might even offer some sort of "repayment" in the form of the improvements to the code that was used, that would benefit both parties.
Not that I think this is a likely event, but I'm just amazed by the fact that all these journalists only see the courtroom (and the destruction of one party) as the only way to come to an agreement.
Do you guys understand the difference between a patent and copyrighted code?
I didn't think so.
Linux, I'm sure, does infringe on patent, by the mere fact that patents on obvious ways of doing things are stupid. Just because its stupid and wrong doesn't mean that Linux *isn't* infringing on students patents.
There's a patent for Amazon to have one-click buying, for christ's sake!
So, get off your ignorant soap box, and join the fight against software patents.
Actually, Mr. Malcom ought to read some of the current US court documents coming out of the SCO vs IBM case, in which the presiding judge says that SCO has thus far shown _no_ evidence of any code taken from Unix or System V has ended up in the Linux kernel. This seems to make it very unlikely that any version of Linux is in violation of any patents. IBM is unlikely to be spending billions of dollars and employing "...7000 to 8000 people working on [their] Linux strategy"
I think Mr. Malcolm _hopes_ that there is a patent violation, since he is supposedly a patent lawyer.
Job Security, I guess.
"There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated," said Malcolm.
There most certainly IS question. Since MSFT finded SCOXE's jihad against Linux, this FUD has come up again and again. 2 years into SCOXE's action not one iota of viloating code has been identified. This is a layer seeking to assure future income, by spreading FUD.
Mr. Malcom's incentive is obvious - "I'm an attorney, so saying things like this might drum up some business for me from those who don't know any better."
Patent infringements "acknowledged" by whom? Reminds me of Dr. Thompson's "rumor" in '72 that Ed Muskie was on some exotic Brazilian drug called Ibogaine. Only problem with the rumor was that it was started by Dr. Thompson himself.
This is also an example of a self-fulfilling prophecy - "I acknowledge that the Linux kernel has patent problems," so "you should hire me to fix your liability for you."
Attorneys never fail to disgust me.
Why only Free Software? Also proprietary one is damaged!
I'm developer of a closed source software for Windows, and I'm really scared about my future. I can't affort the litigation my program can rise from stronger copetitors that can easely "kill me" this way.
I do love program, I enjoy it, I've copied nothing, but sure I'm infranging some hundred of patents, since everything has been patented, also trivial thing.
And no, I can't affort a trial just to show that was "prior art", I would have to quit my business or sell the right (copyright) of my product to someone else.
It's a rubbery against everyone but big corporations. Shouldn't the law defend people against monopolis, against abuses?
So sad (from Italy)
Jeremy Mark Malcolm is not an 'IT expert'. Anyone who keeps up with GNU/Linux and the GPL would know this by reading his asinine statements.
The risk is even greater for commersial software as there usually is a company with money worth sueing behind the software.
In the end what will happen is that software industry moves to some place where software patents are not allowed, and to avoid smuggling illegal software into the EU companies that use software will move as well. Often such move would be a good idea anyway as some of these countries have lower saleries and more potential customers than we can find at home.
So, if you are in software business, prepare to move to China or take up ecological farming.
This statement:
"According to Malcolm, who admits to being against software patents, said there is 'no question' that Linux already violates a number of patents, which could lead to further litigation.
"There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated," said Malcolm."
Is utter nonsense. There have been no proofs that the Linux kernel has any patent infringement, as the SCO case has so strongly emphasized. Printing this story without verifying the source of information is just bad journalism.