While commenting in Computer Reseller News on the SCO v. IBM lawsuit, Microsoft chairman Bill Gates asserted that he believes there is Microsoft intellectual property inside of not only Linux, but other open source programs as well, and he may be right.
The issue at hand here isn't copyrighted code leaking in (like it is with the SCO v IBM case), but instead the patent issue. Microsoft, like most large technology companies, generates a large number of patents. With all of these big companies creating all of these patents, it creates a problem that every new product or version of software may well violate somebody else's patent for something.
To get around this, large corporations do blanket cross-licensing of each others patents so that they are covered if they violate a patent in the future. If they are accused by another company of violating a patent, they usually sit down and either institute or revise a cross-licensing agreement (sometimes by first trying to find a corresponding violation by the accuser).
Unfortunately for the open source movement, there are few, if any patents involved and there is no central distribution of the patent rights and therefore nobody to negotiate with when cross-violations exist.
If you want to see a related issue in the academic arena, you can read a posting from a couple of weeks ago where a number of universities got together to create a patent bloc for agricultural patents to prevent similar problems in agricultural research.
So, what is the solution for the open source world. One possibility is to create an open source patent community whereby only open source developers and licensees can use the patents in the portfolio. However, the problem is that patents cost money and the coordination of said patents would be an expensive operation. A variation on this would require the contribution of associated patent rights from certain participating companies as part of distribution license agreements, but these restrictions go against the most liberal open source models (such as FreeBSD).
There are other mechanism that have been proposed, but they have their own problems. One such proposal would be to reduce the length of time that a patent is exclusive to seven years. That seems like it would be pretty reasonable for technologies that are immediately usable, but it isn't as good for technologies that may take longer to come to market. Imagine that you invent a new technology that will take four years to fully develop and productize. Beyond that, you think it will take one to two years to get the product using this technology into the marketplace, including marketing and early adopter sales. With a seven year patent, your patent would expire right after you had created the product and educated the marketplace, leaving your competitors the opportunity to compete with you just as you have finished teaching the market that they want to buy the product.
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