Andrew Tridgell, author of Samba, says the best way to defend against patents in open source software is to 1. learn how to read patents and 2. learn how to rigorously work around patents
* [http://lwn.net/Articles/370615/](http://lwn.net/Articles/370615/)
Here’s an article that I think is worth reading. It details how the Open Invention Network (OIN) keeps open source software safe from patent threats. It also explains about patent troll companies and their financial motives. It sounds like it’s worthwhile for companies that rely on OSS to become affiliated with OIN.
[http://lwn.net/Articles/353823/](http://lwn.net/Articles/353823/)
> Bergelt described Microsoft’s patent suit against TomTom as being a part of the software giant’s “totem strategy”. By getting various companies to settle patent suits over particular patents, Microsoft can erect (virtual) totem poles in Redmond, creating a “presumption of patent relevance”. According to Bergelt, Microsoft tends to attack those who try to create parity with it in some area, which TomTom did…. But, Microsoft was surprised to find that TomTom had allies in the form of OIN and others. Originally, Microsoft had asked for an “astronomical” sum to settle the suit, but after TomTom joined OIN and countersued Microsoft, the settlement number became much smaller.
OIN was started by six companies: Sony, IBM, NEC, Red Hat, Philips, and Novell.
Timothy B. Lee of the Cato Institute wrote [A Patent Lie](http://www.nytimes.com/2007/06/09/opinion/09lee.html?_r=3&oref=slogin&oref=slogin&oref=slogin), in which he explains why copyright is better for the software industry than patents:
> Don’t software companies need patent protection? In fact, companies, especially those that are focused on innovation, don’t: software is already protected by copyright law, and there’s no reason any industry needs both types of protection. The rules of copyright are simpler and protection is available to everyone at very low cost. In contrast, the patent system is cumbersome and expensive. Applying for patents and conducting patent searches can cost tens of thousands of dollars. That is not a huge burden for large companies like Microsoft, but it can be a serious burden for the small start-up firms that produce some of the most important software innovations.
The good news about software patents is that [they’ve been weakened](http://en.wikipedia.org/wiki/KSR_v._Teleflex) so that patent troll companies can’t wreak quite as much havoc as they have in the past. Now there’s not as much money in it. Apparently, [patent troll companies are getting smarter](http://www.linuxworld.com/community/?q=node/16789) about working with open source — most recently with RedHat:
> Trolls need to collect money to survive, and open source vendors can’t give it to them. The good news from this settlement [with RedHat], and [Blackboard’s](http://www.linuxworld.com/news/2007/020107-blackboard-no-action-against-open-source.html), is that trolls are realizing that hitting an open source company is like robbing a store where the safe is on a time lock. They can do damage and hurt people, but the money isn’t available to them.
The settlement was also [documented by Groklaw](http://www.groklaw.net/article.php?story=20080611191302741).
David A. Wheeler says, “The US Court of Appeals for the Federal Circuit in Washington, DC just heard arguments in the Bilski case, where the appellant (Bilski) is arguing that a completely mental process should get a patent. The fact that this was even entertained demonstrates why the patent system has truly descended into new levels of madness. At least the PTO rejected the application.”
Wheeler goes on to explain why [patents on information is lunacy](http://www.dwheeler.com/blog/2008/05/09#bilski-information-is-physical)
Bruce Perens tells us that patents impede innovation his article, The Monster Arrives: Software Patent Lawsuits Against Open Source Developers:
Patents were created as a means to get inventors to disclose their inventions, rather than keep them secret. The disclosure of an invention was supposed to allow others to more easily build on that invention, thus creating more inventions. But the patent system has evolved into something useless for the purpose of disclosure, and engineers are now instructed to avoid looking at other companies’ patents because if the victim of a patent lawsuit can be shown to have known of a patent, the award to the patent holder is tripled. There have been no reliable studies that show software patenting to have encouraged innovation, and there is much evidence that they actually impede it.