Today is the 10th anniversary of the launch of FOSS Patents--and here's a Microsoft patent threat from 2004 no one reported before

Ten years ago to the day, the first FOSS Patents blog post went live. (In the table of contents on the right side you can also find an entry for January 2010, but that one was added subsequently--and backdated so the contact form would be listed behind all of the actual content.)

When I talk to readers at courthouses or on other occasions, I realize most people don't even know what the "FOSS" stands for. That means Free and Open Source Software, a "politically and philosophically correct" term that describes both persuasions of the same movement. At the outset, the idea was indeed to focus on patent threats and assertions against open-source programs such as Linux. I always viewed the Open Invention Network (OIN) very skeptically as it appeared to part of the problem to a several times greater extent than it was part of the solution. And I was aware of some threats no one had reported on at the time. In fact, there is one that I hadn't written about in the more than 16 years since it was made, but with so much water under the bridge by now--and with Microsoft being a member in good standing of the open-source community these days--I'm going to reveal it on this occasion:

In early 2004, Microsoft's patent licensing department contacted MySQL AB, the originally Finnish-Swedish and, at that time, heavily Americanized open-sourced database company (whose CEO I was advising at the time). What Linux was in comparison to Windows, MySQL was to Oracle, Microsoft SQL Server, and IBM Db2. The term isn't used much anymore, but back then the "LAMP Stack" meant Linux, the Apache webserver, the MySQL database, and one of the P languages (mostly PHP, with a few people using Perl, or even Python): an open-source technology stack powering more websites than any other comparable configuration. MySQL had risen to popularity alongside Linux. It was a symbiotic relationship. Microsoft, of course, favored Windows + Internet Information Server + SQL Server + Visual Studio (C# or Visual Basic).

What Microsoft--and again, the Microsoft of then is not the Microsoft of now when it comes to these types of issues--told MySQL (a company that had received tens of millions of dollars of venture funding while Microsoft already had roughly 10,000 times greater resources) was that they claimed to hold a patent that covered functionality at the very core of the MySQL database engine. From a software development perspective, a database engine is a relatively monolithic (as opposed to modular) thing. If someone asserted a patent against the basic architecture of your engine, it could mean that you have to almost start all over. You'd lose years.

Microsoft was clear about its demand: a 2% royalty on MySQL's (tiny) sales. Two things were not clear, however: whether Microsoft had an agenda to actually start a patent war against open source and, particularly, the LAMP Stack, so that an initial royalty agreement would not have been an amicable resolution of an IP issue but could have been the beginning of the end for MySQL and LAMP; and Microsoft declined to disclose that mysterious killer patent.

The concern I just outlined--that Microsoft would wage an all-out patent war against open source--was not merely paranoia. A Microsoft exec in charge of corporate strategy at the time had told some Silicon Valley venture investors a year or two before that "if it comes to worst with open source, [they'd] just use some of [their] patents." So what was presented as a shakedown might have been a concealed attempt at a shutdown.

Microsoft was the only company at the time to have an issue with Linux; the rest of the industry viewed Linux as a chance of liberation from Microsoft dominance. When it came to MySQL, however, two other major patent holders--IBM and Oracle--potentially had just the same strategic motivation to attack the successful startup, as those companies were pro-Linux, but faced a disruptive-innovation threat from MySQL. While that would have been a gigantic violation of antitrust law, one of MySQL's founders even feared that Microsoft, IBM and Oracle might have agreed to launch near-simultaneous patent attacks on them. And they had only a very few patents (from a smaller startup they had acquired)--likely of zero retaliatory value.

MySQL didn't accede to Microsoft's demand, and Microsoft never stepped up the pressure or sued. Part of the reason may very well have been (and in my view, most likely has been) that there were two things going on in the EU that Microsoft had to be cautious about. The European Commission going after Microsoft for its conduct in some other conduct; and the EU's legislative bodies (Council and Parliament) were working on a Directive for the Patentability of Computer-Implemented Inventions, i.e., software patents directive. Concerns by the open-source community played an important role in the political debate.

At some point MySQL was seriously considering making Microsoft's patent royalty demand public. We had already prepared a press release, and it was going to be centered around an open letter to EU policy-makers urging them to abolish software patents in Europe (though that wouldn't have solved the problem for MySQL anywhere else, and it actually generated most of its revenues in the U.S. anyway). We didn't escalate the conflict, and ultimately that was better for everyone involved.

Oddly, about five years later Microsoft actually tried to defend MySQL's independence. Oracle was in the process of acquiring Sun Microsystems, which had acquired MySQL the previous year for $1 billion. While Sun wanted MySQL's business to grow, there were reasons to assume Oracle simply wanted to control it so as to eliminate a competitive threat. Microsoft and SAP (even though mostly concerned about Java in the beginning) were the two large complainants, and MySQL's founder, Michael "Monty" Widenius, was the third complainant, with help from me. So MySQL's founder and I ended up in an alliance with Redmond about five years after we had thought Microsoft would potentially use patents to destroy it.

If not for that old Microsoft patent threat against MySQL--16 years under wraps--, I might never have gotten involved with patent policy in the first place. And I had it very much in mind when I launched FOSS Patents. At that time, I already knew that Microsoft wasn't necessarily a foe (as the Oracle-Sun merger review showed). In fact, I felt that some FOSS people, maybe because they received funding from the likes of IBM and Oracle, weren't being fair: they turned a blind eye to some other large tech companies' (especially their financial backers') questionable patent dealings and pro-software-patent lobbying, but even when Microsoft had good intentions in specific areas, they looked at whatever Microsoft did or announced like Sherlock Holmes with a magnifier glass and, if all else failed, simply made up concerns that weren't warranted. Part of the FOSS Patents agenda was to focus more on companies whose patent abuse got less attention, but "deserved" more. The first big story here was the second post ever: on an IBM threat against an open-source mainframe emulator.

This blog's focus evolved dynamically. In fact, just about four weeks before I launched FOSS Patents, Apple had filed its first patent infringement complaint against an Android device maker (HTC). Android became the most heavily-attacked piece of open-source software that year as Oracle sued Google (a case that later became only a copyright dispute as Oracle's patents failed in court), Microsoft sued Motorola, Motorola sued Apple (which countersued using largely the same patents as against HTC), and the following year Apple sued Samsung.

Of the roughly 2,300 FOSS Patents posts I've written to date (also, there were a few guests posts), roughly 63% (1,456 posts) went live in the years 2011-2013, the three years in which the "smartphone patent wars" were raging on a very large scale. By 2014 they had already subsided, and in 2014 various disputes came to a partial or complete end.

With those Android companies countersuing, my litigation reporting simply had a mobile focus (and occasionally even gaming consoles). If I had anticipated that, I'd have named the blog "Mobile Patents" or "Phone Patents."

Actually, "FRAND Patents" would have made even more sense. I already took a clear position against injunctions over standard-essential patents in 2010. And a few years later, a Research In Motion/BlackBerry lawyer accused me, after a Mannheim trial, of having "devalued" SEPs and that companies were cutting back on their standardization activities (obviously not true, as we all know now with the benefit of 2020 hindsight).

More recently, this blog has almost been an "automotive" blog, only because car makers are currently the ones that SEP holders like Nokia primarily seek to prey on.

So there's probably no point in ever renaming a blog, much less when it is as well-known as this one. I'm very grateful for having so many loyal readers, and a number of highly important people in the industry as well as in the judiciary, executive and (to a lesser degree) legislative branches of government. I really am.

There's one thing I had envisioned for the 10th anniversary that I haven't found the time for: a redesign. This blog still uses the "Blogspot" platform's original blog layout. Blogspot became Google's "Blogger" service, and undoubtedly supports more fashionable layouts. However, since I have manually entered and edited all the HTML tags here from the outset, it's a bit risky to switch to a newer layout (I ran a test and the result looked awkward)--I or someone I'd pay for it might have to go over 2,000+ posts and make countless manual adjustments. Nevertheless, it may happen later this year--certainly sometime before the potential 20th anniversary :-)

There were times when I was seriously considering discontinuing this blog, or handing it to some other organization, such as an IP-focused publishing company. But in recent years there have been some really exciting developments--and I've found a way to keep blogging while continuing to run an app development company (I'll have a new game to announce this summer).

Some of you encouraged me to keep going--even some who have rather different positions on SEPs or on patent policy in general. Thanks for that, too. I'll keep sharing my honest observations and opinions with all of you for quite some more time!

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The Ubuntu contribution controversy validates the concept of intellectual property

Mark Shuttleworth, the founder of Ubuntu Linux company Canonical, today published a blog posting on the lingering controversy over whether his company's code contributions are reasonably proportionate to the scale of its commercial activities. The South African one-time astronaut argues that "the body of free software needs many organs, many cells, each of which has their own priorities and interests. The body can only exist thanks to all of them."

He doesn't want his company to be measured just by what it contributes to the open source code base (which is little in some people's opinion and he doesn't seem to deny that). He realizes that commercializing open source "without contributing features might just feel like leeching" and basically wants a broader definition of what is considered a meaningful contribution, preferably including the kind of design, packaging and marketing job Canonical does.

This debate started a few months back and doesn't seem to go away soon.

Red Hat's rise once raised similar questions

More than a decade ago, when Red Hat went public and at some point attained a market capitalization of around $20 billion (about three times of what Red Hat is worth now), there was also some concern in the community about whether this was fair.

Even though the quantity of Red Hat's contributions to the Linux code base in recent years may by now appear reasonable compared to its share of the Linux market, the fact of the matter is that Red Hat didn't create Linux and made rather replaceable contributions to its adoption in the early years.

I'm not aware of any other company having derived so much commercial value from a product it neither developed nor acquired. Only in open source is this possible, it seems. Is that a good thing? I'm skeptical and I'll explain my view further below.

Red Hat gave stock worth millions of dollars to Linus Torvalds, and hired other key developers, such as Alan Cox, who became a Red Hat Fellow (now he works for Intel). While Red Hat's gifts to Linux developers were pocket change compared to its own value, there was no legal obligation and it was certainly a significant token of gratitude. But a Red Hat investor I talked to a few years ago nevertheless called the company's business model "parasitic" (and not "symbiotic", which is how Red Hat apologists would rather put it).

The second Linux distributor, SUSE, was acquired in early 2004 by Novell for about $210 million. That amount is dwarfed by the gains Red Hat realized, but still significant for a company that didn't create (or acquire) Linux either, apart from a pretty popular setup tool (YaST).

Now there are constant rumors that Red Hat, too, may be acquired soon. I don't know how much stock to put into that assumption, but any publicly traded company can be acquired if someone is ready, willing and able to lay down the right price. Red Hat's stock has done well in recent weeks, but is still significantly below its IPO price. So Red Hat has been a better deal for its pre-IPO shareholders and for short-term speculators than for long-term investors who came in early and held.

The IP-centric model of MySQL AB

Another major open source project was built on the basis of a business model that is diametrically opposed to the Linux approach.

In 2001, I became involved with MySQL AB, the startup that made the namesake database and was later acquired by Sun (which in turn was bought by Oracle). That was the year the company was founded. When I first met the two most active founders (there was a third one who financed them early on), they had not yet moved into their office.

We had our conversation at the kitchen table in the appartment of one of them (David Axmark) in Uppsala near Stockholm. We had already started the meeting when there was some loud noise from the living room: Monty, the original author of MySQL, was just waking up. Shortly after the dotcom boom that was characterized by lavish spending and (figuratively speaking) marble floors, this was quite some contrast.

But the really impressive part was their IP-centric business model: they always ensured that if someone made an essential contribution to the code base, they would get the relevant intellectual property rights assigned. In some cases, this included that they hired capable contributors as part of the deal.

At the time we also discussed how copyleft (the obligation to publish derived versions of a GPL'd program under the GPL as well, unless they are used only internally) enabled the dual licensing business model. David said that -- even though it appears counterintuitive -- the stricter the copyleft rules are, the better it actually is for dual licensing because it creates demand for a non-copyleft license to the same program code. But the ability to make a GPL'd program available on non-GPL terms requires copyright ownership.

MySQL AB was criticized for contributing too much

The European Commission (as well as antitrust regulators in Russia and China) looked into Oracle's acquisition of Sun of several more months after the US government had already approved the deal because it understood that MySQL wasn't a Linux-like project belonging to everybody and nobody at the same time. MySQL was, even though available under the GPL, essentially a company product and very much an IP-based business.

As a former strategy adviser to MySQL's CEO and shareholder of the company from the early stages until its acquisition by Sun, I knew about that. It just wasn't easy to explain this to other people because Oracle and Sun argued aggressively that an open source project doesn't need any particular company behind it. Interestingly, Richard Stallman agreed with Monty and me rather than with Oracle, Sun and the likes of Eben Moglen. He also explained the legitimacy of MySQL's business model (from a free software point of view) on the GNU.org website.

Given Richard's support, it's unbelievable that a pathological liar told the community that my work related to the merger control process was directed against the GPL. I debunked that smear in this recent blog posting. I argued for -- not against -- the GPL in connection with MySQL's business model.

The key thing in the current context is that MySQL never had the kind of debate over commensurate contributions that now surrounds Linux.

In the controversy over Oracle's acquisition of MySQL, some argued that MySQL would have been even more successful with a Linux-like model. Those who said so either just wanted to help Oracle and Sun push the deal through or some of them might have vastly (!) overrated their understanding of business issues (or both in some cases).

The people who took that position, including but not limited to Eben Moglen, certainly never built any (or any significant) business. MySQL AB was sold to Sun for $1 billion less than seven years after being founded, which should have upped the ante for those who thought they knew better.

Moreover, MySQL's lead venture capital investor, Benchmark Capital, was the original financier of Red Hat and certainly didn't lack an understanding of the Linux business model. Benchmark also financed eBay and other major successes. If a Linux-like approach had indeed worked better for MySQL, those experts would have been in a perfect position to identify and seize that opportunity, whose understanding of business models in general and FOSS business models in particular is hugely greater than that of Eben Moglen (who effectively joined Oracle's legal team for the merger case). The claim that MySQL picked the wrong business model is an insult to human intelligence, but such absurdities aren't against the law, so we have to live with them in all sorts of contexts.

Intellectual property rights ensure that creators and contributors are rewarded

The one lesson that I believe many more people in the FOSS community should learn from the Ubuntu debate is that intellectual property is a perfectly valid concept. Intellectual property rights (IPRs) were created by governments in order to ensure that innovators and other creative people get to benefit from their work. The IPR system may have its counterproductive protuberances, but the basic underlying idea is a good one.

I firmly believe that one can be pro-FOSS and pro-IP at the same time. That's been my approach ever since my involvement with MySQL started in 2001, and my appreciation of open source goes back to the time when my online gaming startup in the late 1990's used Linux, PostgreSQL and other free software on the server side.

I often disagree with the anti-IP rhetoric of many other FOSS advocates, to the extent that some radicals misperceive my support and respect for intellectual property as a hidden non-FOSS (or even anti-FOSS) agenda. I don't claim that FOSS and IP mix easily. It's non-trivial to strike the balance and reconcile the two value systems. But I won't waver in my tireless efforts and I won't be satisfied with anything less than the best of both worlds.

The fact of the matter is that whether or not one wants to categorize a Red Hat or Ubuntu business model as "parasitic", it certainly can't be a model for the economy at large. It can work for a few, but nature teaches us the limit: a biological system needs mechanisms that create real substance, not just parasites or little symbiotic creatures who can't exist without a host.

The FOSS community can only benefit from showing respect for IP

Even though I know that some are ideological about this and won't agree with me, I think FOSS will only do better if the community shows increasing respect for intellectual property and recognizes that in some areas, for certain kinds of innovation and creative production, IPRs are needed. One can deny that fact and claim that "sharing" and "the Commons" can take care of everything. One can even go as far as Eben Moglen recently did in India (a country that is way behind not only the West but also China in terms of respecting IPRs) and claim that "property" is a bad thing in general. In that speech, which was ideologically much closer to Fidel Castro than Hugo Chávez, he even claimed that mankind can only survive on the basis of "the Commons". I oppose such fundamentalism, and if necessary I will also call out people on hypocrisy if they preach water while actually drinking wine that is financed by patent aggressors like IBM.

I want to be thought-provoking, if necessary even irreverent, and identify and address problems. I don't want to preach to the converted and spread anti-IP propaganda because that only makes problems worse instead of contributing to solutions. Even when I fought against the EU software patent directive, I highlighted my pro-IP values.

It's not always easy to strike the balance. For instance, Richard Stallman argues that the term IP is a "seductive mirage" because of the differences between various IPRs. This isn't as bad as denouncing the concept of property. But RMS overstates the differences between non-material property rights. By rejecting the term IP without proposing a reasonably acceptable alternative, he raises concerns among decision-makers that the free software movement is anti-IP. His claim that ownership of software is immoral adds massively to that impression, even though the position he took on MySQL's dual licensing model shows a kind of pragmatism that a lot of people wouldn't consider him capable of having.

The whole debate over whether Ubuntu contributes enough code to open source is in my opinion the ultimate empirical evidence of our innate respect for rights that ensure a fair reward for true creators rather than free riders. Deep in our hearts, we all understand the legitimacy of intellectual property. We should not let an ill-conceived ideology turn our value system upside down.

Notwithstanding the foregoing, where IPRs are overreaching or where they are used in exclusionary and destructive ways, we should stand up and fight. But you won't seee me throw out the baby with the bathwater only to pander to an ideology.

If you'd like to be updated on patent issues affecting free software and open source, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents.

Oracle sues Google, says Android infringes seven Java patents (plus unspecified copyrights)

Last night Oracle announced that it filed a lawsuit in Northern California against Google, claiming that Android infringes seven Java patents (which Oracle acquired along with Sun in January) as well as some unspecified Java-related copyrights.

The document filed by Oracle with the United States District Court for the Northern District of California has been published by VentureBeat.

ZDNet thinks that this "may be the most gigantic patent battle ever seen in this industry."

Some aspects of this are unclear, so I believe this is mostly the time to ask the right questions, and time will provide the answers, probably sooner rather than later.

1. Apparently an assertion of patents against Free and Open Source Software

While there is serious doubt about the full compliance of many Android-based products with open-source rules, it appears to me that Oracle asserts the patents in question against components of Android that are open source. Even if some Android-based or Android-related products may include components that don't meet open-source criteria, I find it impossible to imagine that the patents Oracle tries to enforce here would be infringed only by closed-source components and not by Android's many open-source components.

Therefore, I consider this a patent attack on free software and open source.

2. How cooperative and constructive was Oracle prior to filing the lawsuit?

In my recent posting on Microsoft's cooperative use of patents I explained at length why I'm much less concerned about patent holders who are willing to do license deals on fair, reasonable and non-discriminatory (FRAND) terms than about those who use patents for exclusionary strategic purposes (meaning they require companies to remove features from products or even entire products from the market). If companies only go to court because someone doesn't accept a reasonable license deal, then even I as an opponent of software patents can see the commercial logic and can't condemn such action in moral terms because it allows companies to stay in business.

I've read the document Oracle filed with the court, and Oracle's succinct press release. There isn't any indication that Oracle offered Google a license deal on FRAND terms.

That doesn't mean that Oracle didn't do it. However, in the four cases in which Microsoft started patent litigation, it always made it clear in its official statement that it previously tried to reach a license agreement. Since Oracle doesn't claim to have made a good-faith attempt to resolve the issue amicably, it's certainly possible (unless information to the contrary surfaces later) that this is a hostile, aggressive and destructive move on Oracle's part.

3. Will Google only protect itself or also the makers of Android-based phones?

In the WebM context I have previously pointed out that Google must demonstrate its willingness and ability to protect those who adopt its open source technologies, such as Android and WebM.

It would be very disappointing to see Google settle its dispute with Oracle on a basis that would take care only of Google but not of the wider Android ecosystem, including but not limited to the makers of Android-based phones.

4. Another big failure for the so-called Open Invention Network

I have repeatedly criticized the "Open" Invention Network (OIN), an entity that claims to protect "Linux" against patent threats. I've always said that there's no evidence it has ever helped any company (the latest example is Salesforce, which apparently pays royalties to Microsoft for a variety of patents including some that read on Linux). And I've explained in detail that the OIN doesn't truly protect all of FOSS but only an arbitrarily defined list of program files.

Oracle's lawsuit against Google is the strongest evidence that my concerns about the Open Invention Network are well-founded. Both Oracle and Google are OIN licensees, so in theory there is a non-aggression pact in place between them, but everyone can see that Oracle sues Google anyway because the OIN's scope of protection is too narrow.

I'm not alone with those concerns. This ArsTechnica article also mentions the OIN's limitations.

5. Oracle's open double standards and the "Open"Forum Europe

In the European Union, both Google and Oracle are members of the "Open"Forum Europe (OFE), a lobby organization that claims to advocate open standards. It's not about open standards. It's all about open double standards. I explained that before.

I still consider IBM the biggest open hypocrite. Big Blue uses patents aggressively to shut out competition from its hugely lucrative and strategically important mainframe business. The mainframe is a pervasive technology, a de facto standard, and IBM is anything but open in that regard.

However, Oracle's patent infringement suit against Google is also an aggression against the notion of open standards. Java should be an open standard, and according to Oracle-backed organizations such as the OFE and ECIS, such standards would have to be made available on a royalty-free basis.

In his initial thoughts on the Oracle-Google dispute, "Mr. Mono" Miguel de Icaza has made a number of good points. One of them is that Google would actually have been better off, from a patent point of view, with the Microsoft Community Promise for C#, the core .NET class libraries and the related virtual machine.

I recently explained why Richard Stallman, whom I really respect but with whom I sometimes disagree, was IMO wrong with his concerns about patents on C# and Mono. See, I told you so: there's no point in being too much focused on Microsoft in this context when other companies pose the real threats and problems. The Microsoft bogeyman can be a huge distraction from the actual issues.

Miguel de Icaza even suggests Google might now want to switch from Java to .NET and C#. There may be reasons for which it's not the most likely thing for Google to do, but anything is possible now in the wake of Oracle's patent infringement suit against Google. Indeed, Microsoft's C# is an open standard by any reasonable definition while Oracle proves once again that Java is not.

6. Where are the free software activists, lawyers and paralegals who supported Oracle's acquisition of Sun?

Concerning open double standards and open hypocrisy, it's very regrettable that the Free Software Foundation Europe and the FFII collaborate with the "Open"Forum Europe. The two most influential members of the OFE, IBM and Oracle, have both shown in recent months that they use patents against free software in order to prevent interoperability.

I know a thing or two about EU politics and I'm profoundly concerned that the FSFE and the FFII stand to lose some of their credibility by partnering with organizations that clearly defend corporate interests, not values. It ultimately raises questions about the nature of the motivation that drives the FSFE and the FFII, or its leaders. What they do in this context isn't genuinely NGO-like to say the least.

Some of you reading this may know that I opposed the MySQL part of Oracle's acquisition of Sun. I was also against them acquiring Java, but I kept quiet about that. What I did speak out on was the MySQL part of the deal because I couldn't see (and still can't see) how MySQL could ever be a competitive force that puts Oracle under pressure if Oracle owns and controls it to the greatest extent any company can ever control an open source product.

I worked with Michael 'Monty' Widenius, MySQL's creator and founder, in opposing MySQL's acquisition by Oracle. Among other things, I authored this position paper, which Monty's company filed with the European Commission and regulators in other jurisdictions. (However, I am not involved with Monty's appeal against the European Commission's decision to ultimately clear the merger.)

Most members of the FOSS community understood and supported our concerns. More than 40,000 signed up (in only about a month) on helpmysql.org to voice their opposition to the deal. But some well-known voices who claim to advocate FOSS interests supported Oracle (and even accused us of absurd things). And very importantly, Richard Stallman co-signed a letter asking the European Commission to block the merger.

It was part of Oracle's and Sun's communication strategy to tell community leaders that the deal was good in the community's interest because Sun owned so many patents that others (in some cases suggesting Microsoft although they never made a bid for Sun) might be able to use against free and open source software. They said that Oracle was a reasonable patent holder and wouldn't harm open source.

Yes, they said that. You can still read these claims. Carlo Piana, a lawyer affiliated with the FSF Europe, wrote about that when he explained why he joined Oracle's legal team. A website that always supports IBM's actions unconditionally (and IBM publicly supported the Oracle-Sun deal) parroted Carlo Piana's argument. And there was a lot of talk about it at community events and on various blogs.

It is worth noting that Eben Moglen of the Software Freedom Law Center (SFLC) also supported Oracle, including that he traveled to Europe to support their case at a European Commission hearing. He, too, claimed it was good for free software.

So where are those pro-Oracle FOSS advocates now? Will they come out unequivocally in support of Google and condemn Oracle's action? Will they admit that it was a bad idea to let Oracle acquire Sun in the first place? Will they concede that they were wrong when they said Oracle would be a good owner of those patents? Will the SFLC and the Public Patent Foundation now lend pro-bono legal support to Google in order to get those Java patents invalidated before they do more damage?

Or will they keep quiet due to a conflict of interests and only talk about a bogeyman and propose fake solutions such as the OIN in order to distract the community from the real problems?

Oracle's patent suit against Google raises many important questions, including the ones I just asked.

If you'd like to be updated on patent issues affecting free software and open source, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents.

The patents used by IBM against Hercules are a threat to several major FOSS projects

As I reported last week, IBM sent a list of 173 patents (67 of them applications) to the founder of the Hercules open source project.

Meanwhile I have taken a closer look at some of the patents. The patents IBM uses against Hercules are also a potential threat to other key FOSS projects. Based on a first analysis, those include (but are not limited to) OpenBSD, Xen, VirtualBox, Red Hat Enterprise Virtualization, MySQL, PostgreSQL, SQLite and Kaffe.

I will list below the relevant patent numbers and explain why I believe they could be used against certain projects. Considering that IBM has already used them in a threat letter to TurboHercules, those patents must be considered particularly dangerous. I just explained why IBM's attack on Hercules is an attack on interoperability and FOSS innovation in general. The fact that the patents in action here are also a threat to other key FOSS projects underscores the need to act.

At the end of this post, I am asking the FOSS community to contribute to this important analysis in various ways. I will then check on the material I receive and post the relevant contributions to this blog.

Note that the analysis below doesn't talk about actual or even likely infringement. It talks about potential issues. A wording like "patent A could read on program B" means that given what program B does, further analysis is required whether patent A covers a method used by program B. Even if that were to be the case, it's still possible that patent A could then be invalidated based on prior art.

Here's my initial analysis:

US Patent No. 5,953,520
(#65 on list IBM sent to TurboHercules)

This patent applies to any emulator that emulates a computer with virtual memory. This includes virtualization software, such as Xen, VirtualBox or Red Hat Enterprise Virtualization, as well as emulators and simulators.

US Patent No. 6,009,261
(#63 on list IBM sent to TurboHercules)

This patent reads on many emulators including virtualization software, such as Xen, VirtualBox or Red Hat Enterprise Virtualization. It teaches a method of reflecting the specifications of a guest instruction into the semantic routine of host instructions which emulate that guest instruction. That method is used by many emulators.

US Patent No. 6,654,812
(#46 on list IBM sent to TurboHercules)

This teaches a method for transferring network messages between partitions without going onto the network. This method or a very similar one is most likely used in virtualization systems, such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patent No. 5,875,336
(#70 on list IBM sent to TurboHercules)

This patent teaches a method for translating Java Bytecode. This could apply to Java Virtual Machines such as Kaffe.

US Patent No. 6,748,460
(#42 on list IBM sent to TurboHercules)

This patent describes a method that could be used in a virtualization system (such as Xen, VirtualBox or Red Hat Enterprise Virtualization) to present interrupts to a VM.

US Patent No. 6,615,373
(#47 on list IBM sent to TurboHercules)

This patent describes a method for resolving potential deadlocks. The resolution of deadlocks is key to the functioning of multi-threaded database servers. This could read on MySQL, PostgreSQL and SQLite in addition to any other database management system (still checking into object-oriented and other "NoSQL" databases). It is also possible but less likely that it could read on distributed caching software such as OSCache or JBoss Cache, which cache Java objects on servers. It is more likely that these use broadcast invalidates but needs checking.

US Patent No. 6,209,106
(#60 on list IBM sent to TurboHercules)

This patent describes a method for setting clocks on a variety of different Virtual Machines using offsets. This would be an obvious solution to the problem in a VM system such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patent No. 7,127,599
(#28 on list IBM sent to TurboHercules)

I'm still struggling to read the claims in this one. However, it could apply to managing I/O subsystems in a Virtual Machine system, such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patents No. 6,332,171 / 6,339,802 / 6,345,329
(#58, #56 and #55 on list IBM sent to TurboHercules)

These patents describe a method of using queues to handle data going to and from an I/O device. The use of queues is common in operating systems such as GNU/Linux and openBSD as well as in virtualization systems such as Xen, VirtualBox or Red Hat Enterprise Virtualization.

US Patent No. 6,971,002
(#34 on list IBM sent to TurboHercules)

This patent describes a method for booting a partition of a computer system without restarting the system. It would likely apply to Xen and VirtualBox to the same extent it would apply to Hercules.


CALL TO RESEARCH

This initial analysis requires further scrutiny and exploration. I therefore call on everyone in the FOSS community with an interest in this matter to help expand this.

Like I said further above, I will publish the input (to the extent it is relevant) on this blog. I will do so anonymously to protect all sources. I don't want anyone to have to fear that their project could make itself unpopular with IBM for contributing to this effort here. (If anyone wants to be credited for a contribution, you are free to blog about it yourself.)

The key areas of research that would help me are the following:

• further detail related to the initial concerns identified above, leading to more specific explanations and possibly claim charts


• any examples where additional ones of the patents IBM listed (the letter containing the list is available as a PDF file and in multiple PNG files) might read on FOSS projects


• any examples of other IBM patents beyond the 173 asserted against Hercules potentially reading on FOSS projects

Please use the contact form to send your input.

Based on more analysis of all of this, we may then consider what kind of commitments we ask IBM to make. It's always been clear to me that IBM's pledge of 500 patents was a drop in the ocean. I criticized it on the day of the announcement. Later that year (2005), I wrote this Slashdot op-ed on the issue.

IBM has 50,000 patents or so, and gets 4,500 new ones every year.

As Richard Stallman puts it, if you have 100,000 mines in a park and you take out 1,000, the park is still not safe to walk.

It was a PR stunt by IBM and they weren't sincere about really reducing in any meaningful way the threat their patents represent to FOSS. Now that IBM has actually started to use patents against FOSS, it's key to understand the danger so it can be dealt with appropriately. For everyone developing or using FOSS, not just Hercules.