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Sun Begins to Respond to Patent Questions
Tuesday, February 01 2005 @ 02:43 AM EST

Sun has now responded to requests for clarification and criticism of their patent grant of the 1600 patents. First there was Dan Ravicher's Open Letter [PDF], and next Richard Stallman, and Bruce Perens and now Eben Moglen tells Stephen Shankland he agrees with Ravicher's position. So Sun is now reacting and saying that use of the patents outside of Solaris is OK, but there is no legal language to support that position yet:

"The server and software company clarified its position somewhat on Monday. 'Clearly we have no intention of suing open-source developers,' said Tom Goguen, head of Solaris marketing. However, he added, 'We haven't put together a fancy pledge on our Web site' to that effect.

"Some kind of pledge is possible, Goguen said: 'We're definitely looking into what would make sense and what would make the community feel more comfortable with the patent grant we have made available.'"

What would make the community feel more comfortable would be legal language they could rely on. It doesn't need to be fancy, just clear. I'm sure Sun has no trouble with the concept of wanting legal matters set in writing that both sides comprehend and can legally rely on. I am positive they wouldn't enter into any agreement without such guarantees in writing for itself. Why should the community receive less?

IBM's Bob Sutor on his blog has also raised questions about the patents:

"First of all, bravo! Open is good and Sun clearly picked up on the intention of IBM's patent pledge on January 11 about how this can lead to innovation. (Also see this link for some background on why this is important.) We're very happy people are joining us in this sort of action. Really. Honest.

"But ... and this is important ... as far as I understand it, Sun is NOT pledging these patents for use in any open source project as we did. Our language was

The pledge is applicable to any individual, community, or company working on or using software that meets the Open Source Initiative (OSI) definition of open source software now or in the future.

"Their language is

By giving open source developers free access to Sun(TM) OpenSolaris related patents under the Common Development and Distribution License (CDDL), the company is fostering open innovation and establishing a leadership role in the framework of a patent commons that will be recognized across the globe.

"They are only making them available under CDDL, which really means today for those who work on OpenSolaris. If you want to use these on Linux, YOU ARE OUT OF LUCK. Maybe there is a general patent pledge somewhere, but I can't find it."

Obviously, he couldn't find it because there isn't one yet, and so we wait to see if Sun will do right or not. As Ravicher is quoted as saying, "These are steps in the right direction." I agree, and I live in hope that they will follow through all the way. IBM's language is right there, and Sun's lawyers can just copy and paste, if their intention is the same as IBM's. I'm inclined to be an optimist by nature, but when I read Goguen's somewhat dismissive language about not having a "fancy" pledge and not promising one, as if there is no need for such trivialities, it does put me more on alert, not just with regard to the patent question but also with respect to the problems in the CDDL language.

Of course, if community support is nonessential, he'd be right. Who needs fancy pledges? But there is absolutely no doubt that some clarification that has legal force is necessary to make the FOSS community feel comfortable. It's not sufficient to be told that Sun wouldn't dream of suing anyone. If they can, because there is no legal language preventing it, there will be a measure of anxiety and distrust, both about the patent pledge and the CDDL license terms. It's really that simple.

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