Linux & Open Source

Software patents would give the arch-enemies of Linux and open source enormous anti-competitive leverage, and would keep Europe's infrastructure dependent upon the software products of a few American companies.

Linux and open-source software are not exclusively affected by software patents but particularly at risk. Open-source software is extremely successful in areas in which the European Patent Office has already granted numerous patents (such as operating systems, server and network technologies, databases, and programming languages). In those segments, the incumbent market leaders are large corporations from outside the EU. They own huge numbers of patents and could use them against open-source software in order to defend their monopolies and oligopolies. ("Oligopoly" means the market belongs to a very few.)

The city administration of Munich was widely misunderstood when it temporarily put its Linux migration project on hold. Their concern about Linux and software patents was not primarily about the existing European software patents. Those only served as an indication that the granting practice of the European Patent Office is a danger to Linux until politicians effectively disallow software patents. The real worry by the chief information officer of Munich was mid-term and long-term. He fears that certain companies would abuse patents to hamper the ability of open-source developers to be innovative and competitive.

It is conspicuous that Microsoft frequently mentions patents in a very close connection with the competitive challenge from open source. In 2004 alone, Microsoft projected to apply for approximately 3,000 patents worldwide, many of those in Europe. In July of 2004, NewsForge.com published a memorandum by a senior manager of Hewlett-Packard, one of the world's largest computer manufacturers. The respective E-mail predicted that Microsoft would "use the legal system to shut down open source" but would firstly await the outcome of the legislative process concerning software patents in the European Union. Those conjectures were based on a patent cross-licensing negotiation that the HP executive had with Microsoft, and on some clauses in that agreement.

Open source represents a historic opportunity that the European Union should seize, and not sacrifice to the interests of the "patent mafia" and big business lobbyists. For a long time, Europe had been dependent upon software products from outside of the EU for most of its IT infrastructure. Now that Linux and other open-source software has proven to meet even the highest demands of enterprises and governments, Europe has a choice. American companies play a major role in open source but Europe is relatively strong in the field, and users of open-source software are less dependent upon any particular vendor.

Contrary to what the patent lobby claims, open-source projects have already experience the first patent assaults. Legal threats have already forced open-source developers to refrain from offering certain functionality. In the Wall Street Journal, Microsoft confirmed to have contacted approximately 100 software companies as part of an "outbound patent licensing" initiative, and open-source software companies were among those.

Its success is the primary reason why patents are a threat to open-source software. Since it is available free of charge (subject to certain conditions), open-source software is a fierce competitor to traditional software companies. It takes away market share, and it brings down the price levels. For instance, the success of OpenOffice forced Microsoft to lower the price of its own Office product in Thailand to approximately 30 Euros. At that price, you can hardly buy an Office book in Europe. It would be naive to think that Microsoft and other large companies would not resort to patent litigation if open source continues to have such a dramatic impact on their business.

So in a way, the European Union's decision on whether or not to legalize software patents is also a choice between Microsoft and Linux. Software patents are anti-competitive, and that's why their ratification would reduce the European Union's anti-trust proceedings against Microsoft to absurdity. Microsoft is an incredibly strong company with many talented people on its staff. It is very healthy for Microsoft to face competition from open source. That's the best way to ensure that Microsoft will always deliver high-quality software at reasonable price levels. Through its competitive impact, Linux even benefits the users of Windows. The EU should not exempt Microsoft from that competition through an ill-conceived patent legislation.

Click here to read how software patents oligopolize the software industry at the expense of small and medium-sized enterprises