Archive for January, 2005

Open Source Community Gains Patents, Support

Monday, January 31st, 2005

Earlier this month, IBM pledged 500 patents to the open source community to support development efforts in a wide range of fields, ranging from databases and networking to e-commerce and compression. IBM’s pledge of non-assertion will cover any open source project being developing under a license approved by the Open Source Initiative (OSI) (

During the analyst briefing, Jim Stallings, IBM’s Vice President of Intellectual Property and Standards in the IBM Technology and Intellectual Property Group, explained that IBM had taken the initiative to create a so-called patent commons to help reduce the fear and concern developers had about patents being asserted against technology and products they were developing, and hoped that other companies would follow suit.

The 500 U.S. patents represent just a mere fraction of IBM’s portfolio of over 41,000 U.S. and nearly 30,000 European patents – a portfolio which is growing at over 3,000 patents a year in the U.S. alone.

Stallings indicated that IBM wishes to foster collaborative innovation and enable open standards and that the initial pledge of 500 patents was only the start, and that more patents would be added to the pledge over time.

In a blatant and self-admitted attempt to grandstand and eclipse IBM’s pledge, Sun Microsystems last week upped the ante by granting a license to 1,672 patents, but only under the OSI-approved Common Development and Distribution License (CDDL) – a license that Sun derived from the Mozilla Public License. Sun’s announcement went hand-in-hand with the release of its Solaris operating system as an open source project, under the name OpenSolaris. Sun indicated that the patents it is granting a royalty-free license to under the CDDL are all directly related to Solaris.

The volume of patents IBM and Sun have basically donated for at least parts of the Open Source community to us is impressive, but what does it all really mean for developers?

In general terms, a patent grants the patent owner the exclusive right, for a period of time, to restrict others from making or using the invention covered by the patent. It is often overlooked, or at least misunderstood, that merely owning a patent to a particular invention does not grant the patent owner the right to make the invention. That’s because the invention could also be covered by other patents not owned by the patent owner.

Thus, the effect for developers of these two sets of patent licenses or pledges is that as long as they adhere to the terms of these licenses, they are assured that only IBM and Sun will not go after them for patent infringement. That is not to say some other company might not take it upon themselves to assert patents they own against certain Open Source developers or distributors of Open Source software.

IBM’s pledge, which more broadly covers all open source software developed under OSI-approved licenses, including the popular GNU Public License and the Mozilla Public License, also includes one exception. Namely, the pledge to non-assert is withdrawn from any entity “who files a lawsuit asserting patents or other intellectual property rights against Open Source Software”. This exception may well prevent one Open Source developer from suing another one, but would have no impact on closed source proponents, of which Microsoft is perhaps the largest and most vocal (ignoring for the moment the inevitable cross license agreements in place between Microsoft and IBM in particular).

Sun’s license, which addresses only the CDDL, and thus apparently only the further open source development of OpenSolaris, is thus much narrower in scope and cover. Further limiting its utility are numerous exceptions to the patent license as documented in the CDDL.

The value of IBM’s and Sun’s patent license offer to the Open Source community should not be totally discounted, as both firms have extensive R&D and patenting efforts and do produce meaningful technology. But on the whole, without a host of other significant companies bellying up to the bar to offer their patents on royalty free terms to the Open Source community, IBM and Sun’s offers are but mere tokens – good for public relations, and possibly good for inciting other companies to follow their lead with patents of questionable utility and coverage, but not much else.

All it takes is one small patent holding company with a good patent or two to cause major upset in the Open Source community, and then all the patents IBM and Sun own would not make one bit of difference.



U.S. patents granted to Sun Microsystems by year – total granted since Sun’s founding = 4,288

Year U.S. Patents Granted
2004 651
2003 589
2002 511
2001 374
2000 483
1999 582
1998 453
1997 163
1996 117
1995 77

U.S. patents granted to IBM by year since 1981 – total granted since IBM’s founding = 41,372

Year U.S. Patents Granted
2004 3048
2003 3458
2002 3343
2001 3006
2000 2951
1999 2834
1998 2727
1997 1809
1996 1938
1995 1476
1994 1365
1993 1142
1992 875
1991 709
1990 638
1989 655
1988 575
1987 636
1986 632
1985 588
1984 618
1983 488
1982 453
1981 522

(Note – above information courtesy of Delphion. Includes patents of all subsidiaries and controlled entities.)

Microsoft Validates Windows Experience

Monday, January 31st, 2005

Microsoft announced last week that by mid-2005, users of Windows XP will be required to validate the authenticity of their operating licenses in order to be able to download updates and various applications Microsoft is using as an incentive to validate. This effort is part of an initiative Microsoft has dubbed “Windows Genuine Advantage”.

Among the carrots Microsoft is dangling to get users to validate is an offer of free software including Photo Story 3 for Windows and Winter Fun Pack 2004, as well discounted access to services such as MSN Games and web hosting. Microsoft values this carrot at more than $450.

The Windows Genuine Advantage initiative and the associated validation mechanism have been available under a pilot program since September 2004 via the Microsoft Downloads site. In early February Microsoft will expand the pilot program to include 20 language versions of Windows XP and even more software on the Microsoft Download site. Users of Czech, Simplified Chinese, and Norwegian versions of Windows will be required to participate in the pilot program, whereas for everyone else it will be optional until mid-year.

The validation process requires the permanent installation of an ActiveX program and the use of Internet Explorer 6 or later. The increasingly popular but decidedly non-Microsoft Firefox web browser cannot be used for this purpose.

One of the early misperceptions of this new validation program is that it could result in a vast host of Windows XP systems which suffer from massive security holes because they cannot be updated due to lack of proper validation. To counter this concern, Microsoft has indicated that it will continue to provide Automatic Updates without requiring validation – users will however not be able to manually use the Windows Update function in the operating system without validation. This means that access to security updates on non-validated systems will be limited to whatever update schedule the user’s system is configured with. So, the feared unsecured systems will still exist, but theoretically only for a short period of time after a security alert has been issued.

The major advantages Microsoft cites of the Windows Genuine Advantage program greater reliability, faster access to updates, and an overall richer user experience. In particular, Microsoft claims that their program will help protect millions of Windows users from an inferior computing experience, viruses and other vulnerabilities that can result from counterfeit software.

There is some question, and perhaps irony, in Microsoft touting an inferior computing experience for only users of counterfeit software, as the implication is that merely by running legal software you will enjoy a great computing experience.

In working with a variety of end users and their systems, I frequently find that users have not run Windows Update on their systems in some time and ignore Automatic Update requests for any of a variety of reasons. These reasons include fear of any new software whatsoever, whether they be patches or otherwise; distrust of Microsoft after installing things like SP2 and having ones system crash; and of course there is just general apathy, which abounds among computer users everywhere. With Microsoft soon requiring users to perform extra steps to update their systems, such apathy and resistance to updates among a portion of the user base is sure to get even greater, whether or not their software is legal or counterfeit.

While I cannot begrudge Microsoft for wanting to cut down on piracy of their products, this new program has several notable flaws and drawbacks for the very users Microsoft says they want to protect.

First, it is prone to serious problems – in my tests of the pilot program I first found that Windows XP Service Pack 2 (SP2) blocked the attempt to install the validation code. When I then tried to install the validation program I received a pop-up notice that the validation was not able to run on my system because of my Internet settings or my lack of administrative rights. All my other Internet-enabled software runs fine, and I am the administrator. And, I will modestly state I have an above average understanding of Windows and PC configuration (not that it helped in this case). What is the typical Windows user going to think when they can’t validate their systems? Lots of computer sales businesses will be inundated with support phone calls about why the legal version of Windows XP they were sold with their system won’t validate.

Second, the Windows operating system is inherently prone to problems like security holes, and Microsoft applications and software such as Internet Explorer, Outlook Express, and Office and only make the problem worse. Having to perpetually patch and update Windows and Microsoft programs because of security holes is both frustrating and rather scary – what about the many holes they haven’t found yet, or know about but don’t know how to patch? And when it comes to updating applications such as Office, you are stuck with the annoyance of having to have your original installation media on hand – a real challenge when traveling with your notebook computer and not having any of those CDs on hand. Or, as in Kathleen’s case, you don’t even have a CD-ROM drive built into your notebook computer.

Finally, those of us who are aware of all the potential security problems with Windows and its resident security and infection prone components, use safer alternatives, like Eudora or Thunderbird for e-mail and Firefox for web browsing, and perhaps even OpenOffice in lieu of Microsoft Office. But as part of the Genuine Windows Advantage program Microsoft is also subtly pushing their new but unpublicized Genuine Microsoft Software program, claiming such software “offers you greater reliability, faster access to support, and an overall richer experience”. I personally prefer not to have my computing experiences enriched with virus, spy ware, and other gems which Internet Explorer quietly deposits in my computer. But, in a Genuine Microsoft Software world, there may ultimately be no room for alternatives.