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Perens: New Patent-Suit Threats Poised to Strike

By Alexander Wolfe

NEW YORK -- SCO Group's legal moves over Linux will fizzle, but the IT world may soon feel a new chill in the form of patent lawsuits from other vendors, open-source advocate Bruce Perens predicted Wednesday.

"SCO is not the real threat," he said during the LinuxWorld Expo here. In a limited-invite talk billed as an "Open Source State of the Union," Perens, who currently serves as executive director of the Desktop Linux Consortium, said Linux and open source are increasingly threatened by software patents.

That's shorthand for Perens' thesis that companies are building up huge patent portfolios which they'll use as legal bludgeons to extract licensing fees, filing lawsuits if such fees aren't forthcoming. That's what happened in a recent case involving Microsoft, in which the software giant's Internet Explorer browser was found to have infringed on technology patented by the University of California and Eolas Technology. (Microsoft was fined $521 million. It is currently appealing the verdict.)

But Perens, who comes down on the side of Microsoft in the case, said he believes that, in the case of software, the patent system is broken. "In the United States, at least 50 percent of software patents--some experts say 95 percent--should never be granted."

Such patents should have been bounced because they cover technology that's already been invented; and many patents that are granted have overly broad claims, which extends their reach even further, he continued. As a result, he said, "everyone who writes software is on a daily basis engaging in patent infringement, which they're not even aware of."

The long-term implication could be suits aimed at Linux vendors, said Perens, who was instrumental in developing the Debian Linux distribution and is a leader of the UserLinux enterprise support project. He said he believes prospective actions won't focus on technologies related to the kernel , but instead would target surrounding features such as downloads and the use of plug-ins.

He warned that additional litigation relating to Web-browser technology could also take flight and that many large-scale businesses running browsers could be negatively impacted.

Rather than wait until such suits emerge in force to cast a pall over the IT industry, the open-source community should recognize the looming threat and come up with countermeasures, he said. "We need organizations that set Web standards to protect their implementers better than they do."

If patent problems do materialize, he predicted they would happen after SCO's Linux lawsuits have worked their way through the legal system. (SCO is currently involved in legal battles over Linux with IBM and Novell, and is seeking licensing fees from European users.)

During his LinuxWorld remarks, Perens restated his view on the case --which he contends has no legs. "SCO is essentially claiming that a one-line header file is theirs," he said, referring to code SCO recently showed a court regarding its intellectual property right challenges related to its $3 billion lawsuit against IBM.

But Perens said the copyrights for header code SCO has shown have been freely assigned by either AT&T, Novell, or the Open Group, and therefore have not been used illegally.

"What we've seen to date is obfuscation, delay, half-truthful responses and a theory that SCO puts forward, to say, 'anything that's connected with Unix is ours,'" Perens said. "This is so far from what a reasonable person would conclude. I don't think it's going anywhere in court."

Reached for a response, SCO spokesman Marc Modersitzski told internetnews.com: "We respectfully disagree. We aren't trying the case in the court of public opinion--we're trying it in a courtroom. That's why we're not showing everything. The Linux community may think that the small amount they've seen is the basis of our case. It's not. Nothing could be further from the truth. The header files illustrate that there's a problem. As far as that being the extent of what we have, we're not showcasing it in the public forum."

Concluding his talk, Perens called 2004 the year of serious large-scale deployments of Linux on the desktop, with many pilot programs already underway.