Patent Lawsuit Could Kill Open Source

Michael Hayes
HOUSTON — Users of open source code may no longer be immune from patent infringement cases if a suit filed by Delaware-based FireStar Software against Raleigh, N.C.-based Linux distributor Red Hat goes the way many patent experts think it might.

While the suit itself centers around a dispute over a 2000 FireStar patent for interfacing object-oriented software applications and related databases, the case could bring into play the larger issue the viability of open source as a method for software development.

Writing for Technocrat.net, Bruce Perens, an open source advocate, called the Red Hat/FireStar suit the tip of the iceberg.

Perens predicted that should FireStar prevail in its suit, or should Red Hat see fit to settle, open source use of what he called the “object-relational paradigm” might become impossible. Perens went on to say that this opening salvo in the open source war could put open source itself on the chopping block.

“We should not be confident that we will continue to have the right to use and develop open source software,” Perens said. “A coordinated patent attack by a few companies, or even one large company, could completely destroy open source in the U.S. and cripple it in other nations.”

Arguing that the twin protections of patent and copyright for software had been a bad idea, Perens called for legislative protections for open source in light of what he sees as the specter of looming litigation from firms like Intellectual Ventures.

“Founded by ex-Microsoft executive Nathan Myhrvold and touted as a means to ‘encourage innovation’, it appears to be a litigation factory in the making,” Perens said. “Intellectual Ventures has been purchasing patents to construct a portfolio that it will then assert against someone, probably small and medium-sized businesses to start with.”

A report on technology site InfoQ.com suggested that the venue for the case, the Eastern District of Texas, is notorious among patent lawyers for favoring patent holders.