Linux potentially infringes 283 patents, including 27 held by Microsoft but none that have been validated by court judgments, according to a group that sells insurance to protect those using or selling Linux against intellectual-property litigation.
Dan Ravicher, founder and executive director of the Public Patent Foundation, conducted the analysis for Open Source Risk Management. OSRM is like an insurance company, selling legal protection against Linux copyright-infringement claims. It plans to expand the program to patent protections.
Of the 283 patents, 98 are owned by Linux allies, OSRM said, including 60 from IBM, 20 from Hewlett-Packard and 11 from Intel. The months-long review examined versions 2.4 and 2.6 of the kernel, or heart, of Linux, Ravicher said.
Though OSRM's patent protection won't start until the beginning of 2005, it has set pricing: $150,000 per year for coverage of lawsuit and settlement costs of up to $5 million, Ravicher said.
OSRM's patent-protection plans are the latest development in the sometimes uneasy interaction between the open-source programming movement, which shares code freely, and the proprietary software world, which puts a premium on technology as private property. The issue became a very real concern when the SCO Group sued IBM, arguing that Big Blue had moved proprietary Unix technology into Linux against the terms of a contract.
And the issue has been getting more attention. A just-surfaced 2-year-old memo from a Hewlett-Packard executive highlighted patent-infringement risks in Linux, and Linux foe Microsoft is putting increasing emphasis on its patent portfolio, with a goal to apply for 3,000 new patents this year.
Linux programmers will sidestep any patent infringement problems that arise, said Stuart Cohen, chief executive of Open Source Development Labs, a Linux consortium that employs Linux leader Linus Torvalds.
"As we said in response to the SCO allegations, OSDL is prepared to work with the development community to remedy any offending code in Linux that infringes on the legitimate legal rights of others, and we extend that as well to any issues around patents," Cohen said.
Although OSRM stands to profit from the intellectual-property fears concerning Linux, the start-up takes pains to ally itself with the open-source cause--in part because more Linux users means a larger market, Ravicher said.
Open-source advocate Bruce Perens is on OSRM's board, and the company employs Pamela Jones of the SCO-watcher Groklaw Web site to help compile details on the history of Unix and Linux technology. And Ravicher represents the Free Software Foundation, the group that created the General Public License (GPL) that governs Linux and many other open-source programs.
In Ravisher's opinion, 283 patents could be a basis for Linux infringement lawsuits, but that leaves open the question of whether a court would find actual infringement or whether the patent would ruled invalid. Of patents challenged in court, about half are found to be invalid, Ravicher said.
That number isn't unusually high for a package comparable to Linux, he added. Microsoft, for example, faces several patent suits, he said.
An artifact of current patent law in the United States is that companies and individuals are discouraged from seeing if their products infringe, Ravicher said.
"If you have knowledge and are found to infringe, a court can punish you," tripling financial penalties, Ravicher said. "If you say you didn't know and didn't see it, a court can't punish you. It's a screwed-up rule."
Linux founder and leader Linus Torvalds has taken that approach. "Finding patent infringement has always been a responsibility of the patent holders," he said in a 2003 interview. "It is a fact that I do not encourage engineers to look up patent information."
Red Hat, the top seller of Linux, offers reassurances not just about Linux but about higher-level open-source software the company offers. "We feel confident that our open-source solutions do not infringe on the valid intellectual-property rights of others," the company said earlier in July.
Because of the effect that knowledge of potential infringement has, OSRM isn't releasing its list of patents.
"If we were to publish the patents, we've now put everyone on notice of those patents. For those who have tried to avoid them, we've forced them to know of them, so we've screwed the community," Ravicher said. "If someone really wants to know, they can do the search themselves."