Linux Under the Legal Lens

Lora Bentley

Writer Simon Brew uses the IP Innovation case against Red Hat and Novell as a jumping off point to make some interesting observations regarding Linux and patent litigation in this ITPro piece, not the least of which is that Microsoft may have remained vague in its patent infringement accusations against open source to avoid the open source community coming back with a specific list of patents upon which Microsoft has infringed.

 

Whether it's intended to be a test case or not, he says, it will be -- simply because "it's the first time that major patent issues surrounding open source software will have been addressed in a courtroom." Before open source-specific issues can be decided, however, the court will have to decide a broader question: Is software even patentable? He notes that U.S. courts have yet to weigh in on the question:

...[T]he lack of a definitive judgement on whether software can be patented at all is creating a void of uncertainty that still shows little sign of being resolved. In short, it's still not certain when it comes to the crunch whether open source can be penalised for alleged patent infringements, when the patents themselves haven't yet been legally tested.

And another seemingly obvious point that I have failed to consider until now:

...[O]pen source software has simply become too popular, and is proving to be a major threat for many in the software industry. And without one central body to target, it's proving hard for many closed source companies to fight back.

Reaching resolution in the case may take years, but if IP Innovation is successful, you can bet others will follow suit --quickly.



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