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OSRM Tracing Linux Patents in EU

In an effort to stem the spread of software patents in Europe, the Open Source Risk Management (OSRM) group has begun documenting the sources of innovation claimed by such patents.

The project is an explicit effort to counter the concerns voiced by officials in Munich, Germany over about 50 Linux-related patents.

Munich, considered the poster child for Linux migration in the EU, announced last summer that it would halt its 13,000-desktop migration to Linux in order to address whether software patent laws in the EU could impact the city's use of the open source operating system.

At the time, 50 EU patents were identified that may be potential infringements in Linux.

Now, the OSRM's "Patents and Prior Innovations Project" plans to investigate and create a documentary report on the 50 patents in an effort to identify the true inventor(s) of the innovations detailed by the patents in question.

Although the project will be moderated and coordinated by OSRM, an industry group founded in 2003 with the goal to support the growth of free and open source software, contributions are to come from open source volunteers looking to document and identify the original inventor(s). The volunteers are slated to contribute via the Grokline (www.grokline.net) Web site, which is also operated by Pamela Jones, who also serves as the OSRM director of Litigation Risk Research.

"The idea is to create a real documentary record that will be useful to the city of Munich and to the EU parliament on how the real inventors of the technology are different than the inventors that are listed on the patents," Daniel Egger, OSRM founder and chairman told internetnews.com. "Basically, [it's] to show the world that these patents have very little relationship to actual innovation and represent more of a drag on innovation than actually being a force of it."

Software patents aren't technically allowed in Europe, according to the terms of the European Patent Convention. However they're being granted despite the convention. The EU Council in May announced an initiative to bring EU patent law in line with the United States.

OSRM is not alone in the fight to stop software patents in the EU, which exist in a gray legal area that is subject to an upcoming crucial EU parliament vote on patent law. At the end of October, nosoftwarepatents.com launched in an effort backed by MySQL AB and Red Hat to also stop the EU software patent tide.

Egger said the OSRM is not involved with that particular site, though he noted the effort is complementary, albeit with different fundamental tactics. According to Egger, the OSRM's study is operating from a more documentary basis than an ideological one, and plans to demonstrate what he called the clear inefficiency and economic impact of software patents in the EU.

Stopping software patents in the EU isn't OSRM's only motive for doing the study. The group also believes the work may potentially help in the United States.

"We want to see reform in Europe because we it will make it easier for us to insure Linux in Europe and we hope it will help to lead to an atmosphere in which reform of the U.S. patent system will be more likely," Egger said.

OSRM's first major Linux patent study was issued a day before Munich announced it was halting its migration plans due to patent concerns. The OSRM study identified 283 non-court validated patent infringements in the Linux kernel. Egger said the study generated a lot of interest for OSRM and headaches as well.

"The study got understood as [though] we were trying to scare people. That really wasn't the intent," Egger said. "What we were trying to say was there are a lot of patents out there, but even looked at in the aggregate the risk is still manageable. It's still something you can write insurance on and not something that people should be afraid of."

Egger also noted that the list of 283 non-court validated patents is already out of date, since new software patents are being issued at a rate of about 50 per year. The OSRM has committed to a formal revision of its prior study twice a year.

Novell and IBM have publicly stated they would use their collection of software patents to protect open source. Egger called their position a double-edged sword.

"Yes it's good that they are protecting open source with their patents. That's great. But the problem is that's a method that only very large companies can engage in," Egger said. "To some extent the patent system has become a club where large companies with thousands of patents don't sue each other, as that would be like mutually assured destruction. Instead they use their patents to keep newcomers out of the market."

The final report of the OSRM's patent research will be made available in January under a Creative Commons license.