* Software Patents: Final HERTS (Hypotheticals, Examples, Rants, Thoughts, And Stats) (Part 8)

Using open source software is a bit like reading Entertainment Weekly. Lots of people do it but few admit it. Plus other observations that didn’t fit anywhere else.


Much of the fear about software patents is based on hypothetical situations. When the hypotheticals become test cases, there will be more to write about, more to debate. Until then, there are some very good conversations taking place on the Web about hypotheticals.

A post entitled “Amateur Software Development” on Corante addresses what could happen to small businesses when open source and software patents collide (http://www.corante.com/amateur/archives20030601.html#38215):

“I doubt that many of us frankly care if Linux or any other software for which we have source code is in potential violation of some mega-corps software patent. We’ll keep moving things forward regardless. The question is what happens to small to mid-sized business? Will the Software Publishers Association take on software patent policing of customer software that might incorporate open source code?”


Bruce Perens discusses why software patents are bad for open source in a piece entitled “Alert: False Open Source Representative” (http://www.perens.com/Articles/Taylor/). This is one of the few pieces that gives a concrete example (and it’s a good one) of how software patents and open source don’t necessarily play well together:

“We are especially threatened by royalty-bearing software patents that are embedded in industry standards. In many cases, it is impossible to achieve compliance with a standard without infringing upon the patented algorithms that are specified by that standard. Standard compliance is critical for interoperability, and thus software patents in standards can make an un-communicating island of a Linux system. For example, the IEEE 1394 FireWire standard is encumbered by patents that apply to the software interfacing to it, and a patent royalty pool is operated in connection with that standard. Linux implementations of FireWire are potentially infringing, and prosecution could result in our software becoming legally unable to access FireWire devices.”


Freedom is for Zealots, Open is for Advocates (or Free Software vs. Open Software).

Throughout this series of notes, I have been referring loosely to the “open source community,” but there is considerable disagreement between factions in this community, especially in the context of free software vs. open source software.

In a 1999 piece entitled “Shut Up And Show Them The Code,” (http://catb.org/~esr/writings/shut-up-and-show-them.html), Eric S. Raymond describes the crux of the disagreement between the free software camp headed by Richard Stallman (RMS) and the Free Software Foundation, on the one hand, and the newer open source movement, on the other.

“The real disagreement between OSI and FSF, the real axis of discord between those who speak of ‘open source’ and ‘free software’, is not over principles. It’s over tactics and rhetoric. The open-source movement is largely composed not of people who reject RMS’s ideals, but rather of people who reject his rhetoric.

Is this justified? Well — consider the 180-degree turnaround in press and mainstream perception that has taken place in the last fourteen months, since many people in our tribe started pushing the same licenses and the same code we used to call ‘free software’ under the ‘open source’ banner.”

Others have characterized some in the open source community as zealots (http://greg.abstrakt.ch/archives/000055.html):

“…the biggest liability for open source projects are neither software patents nor the “enemy” Microsoft, but zealots. these people feel that they somehow have the moral legitimacy to read from the open source scripture…”

Here are some of the open source and/or anti-patent leaders and organizations.

Bruce Perens (http://www.perens.com/)
Software in the Public Interest (http://spi-inc.org/)

Richard Stallman (http://www.stallman.org/)
Free Software Foundation (http://www.fsf.org/)

Larry Rosen (http://www.rosenlaw.com/)
Open Source Initiative (http://opensource.org/)

Burn All Gifs (http://burnallgifs.org/)

Free Patents (http://www.freepatents.org/)


Microsoft often comes up in discussions of software patent and open source, but I believe the real problem with Microsoft is something else:

“From an engineering standpoint, this is a ‘positive feedback loop.’ Part of Microsoft’s success was due to innovation (and luck) of long ago, but most (if not all) is now due to how positive feedback effects of Microsoft’s monopoly.”

See also the MIT Technology Review cover story from the Jul/Aug 2002 issue entitled “Why Software Is So Bad” (http://www.technologyreview.com/articles/mann0702.asp).

Red Hat has applied for patents on open-source-related technologies for (as they have said) purely defensive purposes (http://www.oreillynet.com/pub/wlg/1467). Many small start-ups get patents for the same reason, as there are many reasons to get a patent and some good reasons not to.


This is an unofficial count of the number of RFCs that have been written each year since the Internet was created.

  1. 1968 – 1
  2. 1969 – 25
  3. 1970 – 58
  4. 1971 – 182
  5. 1972 – 134
  6. 1973 – 162
  7. 1974 – 60
  8. 1975 – 24
  9. 1976 – 11
  10. 1977 – 20
  11. 1978 – 8
  12. 1979 – 7
  13. 1980 – 17
  14. 1981 – 29
  15. 1982 – 37
  16. 1983 – 49
  17. 1984 – 39
  18. 1985 – 41
  19. 1986 – 24
  20. 1987 – 42
  21. 1988 – 46
  22. 1989 – 52
  23. 1990 – 57
  24. 1991 – 95
  25. 1992 – 95
  26. 1993 – 175
  27. 1994 – 185
  28. 1995 – 131
  29. 1996 – 170
  30. 1997 – 192
  31. 1998 – 234
  32. 1999 – 259
  33. 2000 – 279
  34. 2001 – 193
  35. 2002 – 219
  36. 2003 – 102 (YTD)

Starting in 1993, IETF RFCs began appearing as prior art in U.S. patent documents (e.g. a representative search is “IETF AND ISD/1993$$”).

  1. 1993 – 2
  2. 1994 – 0
  3. 1995 – 2
  4. 1996 – 4
  5. 1997 – 16
  6. 1998 – 46
  7. 1999 – 85
  8. 2000 – 149
  9. 2001 – 167
  10. 2002 – 278
  11. 2003 – 157

I will leave it to the reader to draw conclusions about the above statistics. I just think they are interesting. Each year, more patents are issued that reference IETF documents (as prior art) and more RFCs are written.

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