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Should business users of OSS worry about patent lawsuits?

At LinuxWorld, Bruce Perens said that software patent regulations and lawsuits were going to be big problems for the open source community. What's going on with that? Are patent lawsuits going to affect business users?

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Without getting into a protracted macro-economic discussion about the impact of patents and patent litigation, it is not clear that any contemplated patent litigation (I am aware of no pending litigation that includes either a challenge to a patent or a claim of patent infringement regarding Unix, Linux, or related applications) will impact the open source community in general or so-called business users in particular.

It strikes me that the claims asserted by Red Hat and IBM raise substantial questions about whether any patent infringement claims can succeed. According to those pleadings, as well as common knowledge and lore within the open source community, any business process or invention now owned or controlled by SCO was freely distributed to the open source community in such a manner as to void any subsequent claim of infringement. One also wonders about the extent to which some or all of the business processes now owned by SCO are subject to claims of prior art, i.e. that SCO's technology was not invented by SCO or one of its predecessors.

Might there be some economic impact if SCO successfully pursues a patent infringement claim? Yes. The likelihood of the kind of colossal impact suggested by SCO and some of its sympathizers is, in my opinion, remote. However, as I have recommended elsewhere, it is wise for companies that are legitimately concerned about this issue to evaluate the level of their risk/exposure and then develop a rational risk reduction program. If migrating to or expanding the enterprise's use of open source is otherwise justified, recent events need not change that result.

This was first published in August 2003

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