Will cloud be the next patent battlefield?

Open source may be seriously damaged as patent wars continue

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I have watched with sad interest all the stories coming out this week about Apple's interim victory in its patent lawsuit against mobile phone maker HTC, when an International Trade Commission judge ruled that HTC devices infringed on two Apple patents.

Should this preliminary ruling become final, the Taiwanese handset maker could have its devices barred from sale in US markets.

Most analysts think it won't come to that--a cross licensing deal between Apple and HTC seems more likely, since HTC just bought S3 Graphics, presumably for S3's patent portfolio that has some patents that Apple may need to license. We shall see.

No matter the outcome, there is now no doubt that the mobile sector patent wars that analysts have predicted for years is actually here. The ultimate loser in the multiple battlefields of suits and counter-suits will be, unfortunately, a lot of open source developers.

The nasty effect of the patent battles can be starkly seen in an entry posted in last Friday's Apps Blog on The Guardian website, which detailed on UK app developer's dilemma in sad detail:

"Simon Maddox, a UK developer, has removed all his apps from US app stores on both iOS and Android for fear of being sued by Lodsys, a company which has already sued a number of iOS and Android developers which it says infringe its software patent."

I read things like that and just feel sick to my stomach. Maddox is not an open source developer, but he shares one important characteristic with many open source developers: he's independent and on his own when it comes to fighting big lawsuits. For Maddox and the other developers highlighted in the article, it's no longer worth selling in the US market because they could be individually sued for patent violations.

For developers actually in the US, they seem to be screwed six ways to Sunday. Individual developers and OEMs are picked off one by one in these patent lawsuits, for two reasons: they have money and they don't have patent portfolios to defend themselves. This is why patent wars are usually proxy wars: Apple and Microsoft won't get sued, because they can counter-sue with their own patents. Google is the exception, to some extent. They don't have the deep portfolio, so they can be sued. (But not brazenly; Google has deep pockets for good lawyers.)

Cynical people might say that open source developers are protected from such patent cross-fire for the simple reason that they don't generate revenue. If it were just the mobile and desktop space, I might be inclined to agree with the cynics. But how long will that last? How long until patent attacks are stepped up and target not just companies and developers who can potentially deliver a share of their revenue, but developers who are working on a vital bit of competing technology, for no other reason that the competing tech can be blocked?

What concerns me is not the mobile space, or even the desktop space. I am growing very concerned with open source vulnerabilities in cloud space. There are a lot of enterprise-level players in the cloud, and a lot of small niche vendors who are relying on open source technology to deliver their services. If the all-out war in the mobile sector continues, how long will it be until these tactics boil over into the cloud?

That has even more potential to damage open source development, because a lot of the technology in the cloud is based on commoditized free and open source software. Much more, I believe, than mobile.

Faced with the prospect of getting caught up in a patent fight in the cloud sector, how many open source developers will want to stick around projects that touch the cloud? My fear is not many, and that could cause a ripple effect across projects all over the open source ecosystem.

We can see the future with doom and gloom, but the simple solution is so clear: the software patent system is a massive deterrent to software innovation, whether open source or proprietary, and it needs to be reformed or removed. The US is going to lose ground in technology thanks to this idiocy, and open source development may suffer huge losses.

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