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Linux Patent Cloud Blows Over Europe

UPDATED: In a week that has seen the Linux patent issue grab a lot of attention, Munich, Germany, has decided to temporarily halt its plan to migrate 13,000 of its desktops to Linux.

This move comes coincidentally just one day after Open Source Risk Management (OSRM) released its Linux patent review results. And not to be left out, Red Hat has taken additional measures to protect intellectual property.

Munich had been hailed by open source advocates as the exemplar for government migration to Linux. The German city officially agreed to migrate its desktops to Linux in June. However, late Tuesday night the project was put on hold because of fears over software patents.

Under the terms of the European Patent Convention, software patents are not supposed to be allowed in the EU, though there is a large loophole and a move (the EU software patent directive) to formally allow them.

According to advocacy group Foundation for a Free Information Infrastructure (FFII), there are already more than 30,000 patents in Europe. At the request of a local Munich politician, the FFII conducted a European patent search and found more than 50 potential patent conflicts.

Until the risk can be ascertained in greater detail, Munich CTO Wilhelm Hoegner announced Tuesday that the city has stopped the bidding-process component of the project, which would role out the migration. The fear of patents, however, does not seem to spell the end of the city's Linux aspirations. According to a press release issued on Wednesday by the local government, Munich is still firmly committed to the Linux migration.

"On the one hand it is good to see that the principal of Munich really understands the possible impact of software patents," wrote Europe software rights advocate Jan Wildeboer in a blog post. "On the other hand, it is of course disturbing to see that these questions have brought the migration in trouble."

According to Linux and open source consultant Tom Adelstein, Munich has plenty of time to study the various patent issues, and unless there is more to the story than is being publicly disclosed, didn't need to halt the project at this time.

"Munich overreacted to the alderman's concern about software patents in Linux," Adelstein told internetnews.com "The patents related to Linux belong to the project developers. If they're worried about that, then they should also worry about Microsoft's patent awards in their own operating system."

Adelstein refers to a number of historical precedents in the software industry that Munich could learn from. "Apple sued Microsoft for taking intellectual property when Windows came out. Apple lost. The city would never be shut down; governments have the right of eminent domain, and they can stop any action against them at any time," he explained.

"Finally, you cannot ignore the issue of interoperability," Adelstein said. "If someone writes software to interoperate with another device or system, they will always prevail."

The OSRM study, released Monday, identified 283 non-court-validated patents in the Linux kernel, though report author Dan Ravicher told internetnews.com that most patent cases do not end in favor of the patent holder.

OSRM is not alone in recognizing and attempting to deal with risk management in Linux. Red Hat announced additional measures to protect intellectual property. The company's Open Source Assurance Program has been more geared toward intellectual property threats from SCO since its inception last August. In January the company expanded the program to include all Red Hat Enterprise Linux subscribers. The program guarantees that if there is any intellectual property issue, Red Hat will fix the problem without interruption to the end user.

Red Hat announced on Tuesday that it had expanded its Open Source Assurance Program in a new partnership with Black Duck Software. The partnership will leverage Black Duck's protexIP product line to help track and identify open source code in development projects in an effort to avoid any potential licensing compliance issues.

"Black Duck's mission is to help any organization concerned about the risks of combining open source and proprietary software code, either accidentally or intentionally, into its own software," said Douglas A. Levin, CEO of Black Duck Software, in a statement. "We're very excited to be partnering with Red Hat on these crucial issues of protecting software developers and furthering Linux and open source adoption to the enterprise."