"Software patents are a way of life"

Open source programmers might not like the idea of software patents, but those critics would be better off adapting to the fact that they're not going away, Hewlett-Packard's top Linux executive said on Tuesday.

Martin Fink, HP's vice president of Linux, said in Boston at the LinuxWorld Conference and Expo: "At the end of the day, software patents are a way of life. To ignore them is a little bit naive." It's fine to object to software patents, but it's foolhardy not to try to acquire them, he said.

"Refusing to patent one's ideas is leaving oneself exposed for absolutely no good reason," Fink said. "For some, [getting patents] may seem like selling out. You can comfort yourself that it's what you do with the patent that matters, not the fact that you have one."

Critics of software patents include some of the highest-ranking members of the open source and free-software movements. Among them Richard Stallman, president of the Free Software Foundation; Linus Torvalds, founder of Linux, which piggybacked on Stallman's Gnu's Not Unix (GNU) operating system project; and Brian Behlendorf, a founder of the Apache Web server software project.

In contrast, HP boasts of its patent glories. In 2004, it received 1,775 US patents, placing it fourth on the list of those who acquired the most patents in the United States.

Intellectual-property issues - that is, matters involving patents, copyright and trade secrets - are attracting more attention because of open source software, which by definition may be shared, changed and redistributed. Those freedoms stand in stark contrast to the secrecy and distribution constraints of traditional proprietary software.

Fink said that open source software is built on a copyright law foundation, but that patents are more awkward because programmers see them as curtailing their liberties. Companies, on the other hand, see patents as protecting valuable ideas.

Linux doesn't come with any guarantees that it's not violating patents. Indeed, one study by a company selling insurance against intellectual-property lawsuits said that the operating system kernel potentially violates as many as 283 patents. And an HP executive warned in 2002 that Linux foe Microsoft was planning a patent attack against open source software.

Still, no patent attacks have materialised publicly so far, and the landscape for launching such an attack is becoming increasingly complicated. Linux sellers Red Hat and Novell have vowed to use their patent portfolios to defend against such attacks, while IBM and Sun have declared they won't sue over open source infringement of hundreds of patents.

Also on Tuesday, Fink lambasted the practices of the Open Source Initiative, the group that approves prospective open source licences such as Sun's Community Development and Distribution License.

In August, Fink said that 52 open source licences is too many. Now there are more, he complained, because OSI simply approves any licence meeting the Open Source Definition, instead of trying to consolidate to advance open source business foundations.

"Clearly, the OSI has not internalised the critical role it plays," Fink said. "Approving licences based on compliance with a specification rather than the ability to further open source business models makes... a clear and present danger."

Fink is chairman of the intellectual-property subcommittee of the Open Source Development Labs and will work to bring the Linux consortium's weight to bear on the matter. OSDL has an "aggressive plan to drive (OSI) to a new direction", Fink said.