U.S. Patent Reform Bill: An Interview with Mark Webbink
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Koman: Is there more commonality or conflict between Big Software and open source software?

Webbink: At a certain fundamental level there is a commonality in terms of an interest in reform that benefits the industry broadly. Where we will part ways are on some of the extensions of that, in terms of [for example] this push that the U.S. government has been on through free trade agreements to impose our IP system on other countries. Before we get too carried away with that, we need to look at our own system and say, hey, have we really got this right yet?

Koman: Red Hat holds a number of patents, I believe.

Webbink: We hold a small handful of patents. We have more than 40 applications pending at this point. We make those available under our Patent Promise.

Koman: Describe the relationship regarding patents between Red Hat as a commercial company and the open source community.

Webbink: Whether an open source commercial vendor or an open source project, if others are going to threaten you with patent infringement, your strongest defense is going to be your own patent portfolio. Your patent portfolio may have nothing to do with the technology you're producing, because that only allows you to keep others from what you're doing. When Red Hat and others look at obtaining patents, I'm far more interested in what the other guy's doing. Because if he knows I have a patent that will disrupt his business, he's liable to leave me alone. A lot of the patents we've been filing are not on our own technologies, they're on technologies of other companies and extensions of those technologies. And it's not because we want to tax them, we just want them to leave us alone.

Koman: So the current regime creates this defensive filing system?

Webbink: Mutually assured destruction.

Koman: Under your promise, you promise not to pursue infringement claims on open source projects. Is that right?

Webbink: Right. We have limited that to those licenses that actually either have patent provisions in them or, like the GPL, will assure that the software is going to remain open. We did not extend it to the BSD license and some of the others where the technology that would read on those patents could be used in proprietary software. At the same time, to the extent that there are projects out there that use those non-approved licenses, we've communicated to them that we have no intention of ever pursuing a patent infringement claim against any open source project.

Koman: What's your take on IBM's and Novell's promises around protecting open source from patent claims?

Webbink: Well, IBM made 500 patents available, but that was more of a gesture than something meaningful. But they've done a number of other things that have had a good deal of substance to them. Making a public commitment not to assert their patent portfolio against open source and Linux more specifically. They have looked at making additional patents available and have undertaken some interesting thinking around the whole issue. I suspect Novell is doing somewhat the same thing, although I was a little disappointed in their statements about their current portfolio. They said, "We will use our current portfolio to protect ourselves." OK, what does that do for your customers, then? But Novell, unlike Red Hat, has its proprietary side and its open source side. And most of its patents are on the proprietary side. Most of its patents are on NetWare and the functionality of NetWare.

And now we've seen Nokia make the same kind of pledge that IBM did. And so this idea of building a framework around open source to protect it from patent threats is gaining traction.

Koman: Could that have enough heft to carry the day?

Webbink: In time we'll see that kind of framework and different variations of it. I don't think there's going to be any one solution, because solutions tend to be somewhat limited in their scope; they can't protect against all things, so you need a multiplicity of things to really build a sound framework to protect open source from most if not all of the threats.

Koman: What's happening in the rest of the world? You mentioned America exporting its intellectual property regimes.

Webbink: In Europe, having defeated the Computer Implemented Inventions Directive, now one of the directorate generals of the Commission has proposed a directive that would make willful infringement of patents a criminal offense, which everyone who has looked at that one has just said, "That's insane." I don't think that directorate will go anywhere, but it's sitting there and will have to be dealt with.

Richard Koman is a freelancer writer and editor based in Sonoma County, California. He works on SiliconValleyWatcher, ZDNet blogs, and is a regular contributor to the O'Reilly Network.

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