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Full disclosure: The subject of this post has a strong impact on my future ability to earn a living.
For some time, Microsoft has been claiming -- and failing to provide substantiation -- that Linux violates many of its patents. It hasn't taken any legal action yet. Most likely Steve Ballmer realizes that if Microsoft set out in court to destroy Linux, the backlash would be huge. But now a lesser-known company, Acacia Research, has filed suit against Red Hat and Novell on the grounds that their distribution of Linux violates their patents.
Acacia is a patent troll -- or as they prefer to call themselves, "the leader in patent licensing." That is to say, it's a purely parasitic company that produces nothing of value and gains its revenue through patent litigation or its threat. It's also suing Microsoft, among many others. But in this case, it's doing Microsoft's work for it -- perhaps with more than just similar interests in common. Groklaw notes that Jonathan Taub and Brad Bunnell came from Microsoft to become vice presidents at Acacia this year.
Software patents, as I and many others have noted, are not a suitable tool for protecting the rights of creators. It's virtually impossible, from reading a software patent, to determine whether a piece of code violates it or not. Any programmer who tried to determine whether the code he was writing was patent-clean would never get any actual code written. Copyright provides the appropriate protection for software.
The effect of software patents is simply to allow those who have patent portfolios to legally extort money out of those who don't. Major software companies have portfolios, and negotiate patent cross-licenses so that they don't get sued by one another. Software patents are a means for creating a cartel, and are intended as such.
Writing patents in suitably opaque legalese and filing them requires money. This largely excludes open-source developers from creating a defensive portfolio. Most of the software I write at work is at least nominally open-source -- we put though not all of it is published. Harvard does have money and can fight a lawsuit if necessary. But if the courts continue to decide in favor of patent holders, it's a futile fight; how inclined will Harvard -- or any other open source developer -- be to produce software when every product is an invitation to an extortion demand?
We could be headed toward a future in which a software-patent equivalent of the RIAA sends routine takedown notices against independently developed code, claiming patent violations which no one can prove or disprove without extensive litigation. This would force independent software to migrate to furtive, transient sources of unknown reliability. The main beneficiaries would be the software cartel, but malware distributors would also find life a lot easier, as people wouldn't know what sources to trust for the software they wanted.
