Back in January, Red Hat reversed a longstanding policy and allowed the
Mono .NET implementation into the Fedora distribution. A set of Mono
applications (Tomboy, Banshee, F-spot) also went in at that time. The move
was generally welcomed, but a number of observers wondered what had changed
to make the addition of Mono possible. The sticking point had been a set
of patents on .NET held by Microsoft; presumably those patents were no
longer seen as a threat. But no information on why that might be was
released at that time.
We missed it at the time, but Fedora hacker Greg DeKoenigsberg posted an explanation in late
March. The answer, as it turns out, may offer some clues of how the
software patent battle might play out.
Back in November, the Open Invention Network (OIN) announced its
existence. OIN is a corporation which has been set up for one express
purpose: to acquire patents and use them to promote and defend free
software. The OIN patent policy is this:
Patents owned by Open Invention Network will be available on a
royalty-free basis to any company, institution or individual that
agrees not to assert its patents against the Linux operating system
or certain Linux-related applications.
The list of "certain Linux-related applications" is said to exist, though
it has not, yet, been posted publicly. But Mono is apparently on that
list. So anybody who files patent infringement suits against Mono users,
and who is, in turn, making use of technology covered by OIN's patents is setting
himself up for a countersuit. Depending on the value of the patents held
by OIN, that threat could raise the risk of attacking Mono considerably.
That last sentence is important: a potential OIN countersuit will only have
a deterring effect if OIN's patents cover an important technology and look
like they would stand up in court. As it happens, OIN holds a set of
patents covering a number of fundamental aspects of XML-based web
services. These patents (originally assigned to a failing company called
Commerce One) created a fair amount of concern when they went up
for auction at the end of 2004; many companies feared that they could be
used to shake down companies all over the e-commerce field. What actually
happened is rather different: they were bought by Novell for
$15.5 million and eventually contributed to the OIN pool. These
patents, it seems, are considered strong enough to keep Mono safe.
Novell did the community (and perhaps the technology industry as a whole) a
big favor by buying those patents; in the process, it beat out bids from a
couple of "intellectual property" firms associated with Nathan Myhrvold.
Donating them to OIN multiplied the favor by putting these patents directly
into the service of free software. We may all be a little safer as a
result of this action.
Some observers in the community have criticized the patent pool idea in the
past. Playing the software patent game in any way is a little distasteful,
and it is not clear to everybody that the owner of the pool would have the
standing or interest to defend the target of a patent attack. The true
success of OIN can only be judged in the long term, and, in the best case
scenario (no software patent suits are ever brought against free software
users), its contribution will never be entirely clear. What is clear,
however, is that OIN has already brought some peace of mind to some of the
people who were most worried about the software patent threat. That seems
like a step in the right direction.
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