WHAT ARE .NET AND MONO? 5
THE LICENSE SWITCH: FROM GPL TO MIT 10
SOFTWARE PATENTS AND OPEN-SOURCE 15

In late January of this year, Ximian1 announced the first pieces of Mono2 -a Unix / Linux-compatible version of Microsoft's .NET3-will be released under an MIT X11 license, rather than a traditional GNU General Public License (GPL).

GPL and MIT are both "open-source" software licenses, meaning they provide access to the source code of the software. The main difference between the two is that GPL requires all software that uses GPL source to also allow access to the source, whereas MIT allows access to the source code, but does not require subsequent versions that utilize the code to give access to the source code.

This license switch is indicative of a shift in open-source4 philosophy.5 It highlights the increased amount of balancing intellectual property rights taking place in Internet development, due to the increasing interaction between open-source and proprietary software companies. The license change recognizes proprietary software companies' interest in protecting intellectual property. Many members of the open-source community have argued the switch gives too much to commercial software companies (free source code) and nothing back to the open-source community. And some are arguing the implications are much more grave-that the switch actually opens open-source software up to being filled with patented material, giving commercial firms an opportunity to effectively close down Mono. 6

This paper looks at the legal issues raised by the license switch, the growing concern about the proliferation of software patents being granted and the means by which the open-source community has made efforts to protect against them.

What is Open-Source?
or "When open-source developers and IBM took gambles on each other, free software showed it can flourish in the heartland of corporate computing ..."7
Open-Source
The concept of open-source software development is quite simple: programmers can read, redistribute, and modify the source code for a piece of software. Through this process, the software evolves. The community interacts to improve it and fix bugs. What differentiates open-source from closed source or proprietary software development is 1) the availability of source code and 2) the right to make improvements in that code. Most software license agreements do not allow access to the source code.
Advocates of open-source development say that this method is far speedier than the slow pace of conventional software development. 8 They go on to state that this process is superior to the traditional closed model, in which only a very few programmers can see the source and everybody else must blindly use an opaque block of bits. They end with "For twenty years it has been building momentum in the technical cultures that built the Internet and the World Wide Web. Now it's breaking out into the commercial world, and that's changing all the rules. Are you ready?"9
Open-source software has and does play a major part in the Internet's infrastructure. Further, open-source programs like Linux, Apache and Netscape are common tools both on the Internet and in business.10
The role of open-source software in business has grown exponentially in recent years, along with the expansion of the Internet. Open-source has resulted in enhanced competition and innovation and raises the hope of being better able to compete with Microsoft. With the Internet, open-source enables programmers around the world to collaborate on projects. It allows for standardization that is guided by a chorus of voices, rather than a single one.
Open-source is not going to destroy proprietary or commercial software. Proprietary and open-source software can and do coexist peacefully in many corporate computer systems. Companies and individuals will always use whichever software works best for their needs.
One reason for the success of open-source software has been the explosive growth of the Internet, which provides a quick and easy method of accessing contributions. Another reason is the price, either free or at low cost. And the generous licensing agreements, allow users to install it on countless computers paying for a license for each one.

This highlights both open-source and proprietary software companies concern that this future be shaped not by a single entity (Microsoft), but by a community of voices, open-source and proprietary alike. In order to effectively compete, open-source and proprietary software companies forge alliances.

Concern has been raised on both sides about open-source ideals of software freedom, the definition of intellectual property and just who should own it. While the switch in license has ramifications for the open-source conception of derivative works created under copyright, another intellectual property battle has come to the fore. Many in the open-source community worry about corporate entities weaving patents into open-source projects and then effectively shutting them down by requiring license fees,11 or simply about the growing acquisition of patents by large software companies.

This change and its ramifications bring to the fore growing concerns about the growth and direction of the Internet, open-source development paradigms, and the increasing presence of commercial software companies and intellectual property concerns in both spaces.

Open-source is changing, too
It is not just large commercial companies that are changing-open-source is changing too. They benefited from the recent IPO boom, just as proprietary companies did. A recent panel of open-source advocates saw the potential for friction among open-source companies, especially due to the influx (and outflux) of cash into the software sector. O'Reilly likened the current state of open source software to the early days of the Internet, which has shifted in the last few years from a medium full of cooperative idealists into "a competitive, dog-eat-dog environment". 12

Further, many open-source group leaders are getting tired. Linus Torvalds recently posted on Slashdot.org that he was getting tired of hearing some people complain about patches for Linux. Also, one key motivation said to drive volunteers to open-source projects--the prospect of leaving a lasting mark on the software world--has shown its limits. "I'm tired of people who complain loudly when something doesn't work but fall silent when asked to help in fixing it," groused Christoph Phisterer in his resignation from leadership at the Fink project to bring open-source and Unix software to Mac OS X computers. "I once thought sharing my knowledge, experience and time with the community was a good thing, but now I know better."13

What are .NET and Mono?
or "One part marketing, one part paradigm shift and three parts cool new products..."14

.NET
Webopedia15 defines .NET as "A Microsoft operating system platform that incorporates applications, a suite of tools and services and a change in the infrastructure of the company's Web strategy. The objective of .NET is to bring users into the next generation of the Internet by conquering the deficiencies of the first generation and giving users a more enriched experience in using the Web for both personal and business applications. This is Microsoft's most ambitious undertaking since the release of Windows 3.0"16

.NET will intends to change the end-user's Internet experience in the following ways:
* Erase boundaries between applications and the Internet. Instead of interacting with an application or a single Web site, .NET will connect the user to an array of computers and services that will exchange and combine objects and data.
* Software will be rented as a hosted service over the Internet instead of purchased off a store shelf. Essentially, the Internet will be housing all your applications and data.
* Users will have access to their information on the Internet from any device, anytime, anywhere.
* There will be new ways to interact with application data, such as speech and handwriting recognition. 17

The shift in open-source philosophy referred to earlier is not the only paradigm shift that needs consideration. The Internet itself has changed the software industry. In order for any software company to survive, the Internet needs to figure into their plans. What Microsoft has decided to do is address the Internet head-on. The .NET initiative is Microsoft's way of trying to shape the force that has had such a profound effect on their business. 18

Basically, what .NET recognizes is that people are expecting to use their computers and software to move, share and organize their information. These information services have to work together seamlessly. In the past, we have struggled with incompatibilities while waiting for a standard to be adopted. Standards work, but they of necessity require a long period of investigation and discourse in order to make sure they meet everyone's needs. Thus, standards are slow to establish and tedious to implement.

So what if there was a way to set a few standards and then have everything else work together, so that building software and applications that require input from different data sources and different platforms was fast and simple? That is what Microsoft's .NET initiative is all about. Standard protocols like SOAP19 will make data exchange so simple that software can change as quickly as business goals. Simple data standards like XML20 can expose information to anyone who needs it. And the platform that will deliver these features to developers in a simple, consistent, reliable and scalable fashion is the .NET framework.

None of the elements of .NET are new in and of themselves; it is the integration (for example, of fax, email and phone services), centralization (of data storage)  and synchronization that is new. The .NET initiative is not an exclusive, proprietary Microsoft endeavor. Significant portions of .NET have been submitted as standards to the European Computer Manufacturers Association (ECMA).21 Microsoft will not retain exclusive control of the technology. 22

Indeed, .NET is heavily dependent on Internet standards:
* HTTP (to transport data and provide access to applications over the Internet)
* XML (a common format for exchanging data stored in diverse formats and databases)
* SOAP (enables applications or services to make requests of other applications and services across the Internet)
* UDDI (a DNS23-like distributed Web directory that would enable services to discover each other and define how they can interact and share information).

The use of these Internet standards illustrates .NET's origins were shaped by the Internet. .NET is basically a standardization of all the tools and functions programmers use to develop for the Internet. If it is successful, it could shape the future development of the Internet. 24

Mono
Announced last July, Mono is an open-source version of Microsoft's .NET development platform.25 Miguel De Icaza at Ximian indicated that Microsoft's .NET was a theoretically interesting cross-platform initiative, but that it would be much more useful to developers if it were created with an adherence to open-source ideals, and were available on Linux systems, instead of just Windows. One of the major features of .NET is its Common Language Specification (CLS). CLS allows a programmer to be language independent; that is, she can compile the code she has written interoperate with other programming languages.

Mono and .NET are geared to let companies assemble sophisticated services such as travel agents out of different Web sites--"Web services," in current lingo. Several Web services could be assembled on the fly, for example, to book an airplane flight, bill a credit card and call up a rental car promotional offer.  Mono would allow Linux and Unix systems to host Web services and to tap into Web services on other servers.

Mono is designed, among other things, to reproduce on Linux and Unix the ability to execute programs written in Microsoft's C# language that's a foundation for .NET.26

Open-source as a means of spurring competition?
Many large companies are investing in open-source software. For example, IBM, the world's biggest computer company, invests in open-source. The IBM open-source thrust is a way to blunt Microsoft's advance. Microsoft's growth strategy scales beyond the sale of high volumes of desktop packaged software. Now the company is racing to win over the software backbone that has always been the domain of the Big Iron hardware suppliers via their operating systems. Much of the independent software industry has grown up around the proposition of adding value to these operating systems.

IBM is among the strongest supporters of Apache.27 IBM has become a strong advocate of Linux, pledging this year to spend more than $1 billion promoting the open source operating system. Linux frees IBM from a dependence on Microsoft and allows IBM to offer more hardware and services to its customers for lower prices than when it sells proprietary operating systems. 28 IBM is not the only major computer company that supports Linux. Compaq, Dell and HP also offer Linux computers. An increasing number of enterprise applications also run under Linux. These include Oracle, SAP and Corel applications, as well as Lotus Domino and Tivo. Apache is a widely used open source Web server program that runs under Linux. Samba is an open source program that makes Linux look like a Windows file and a print server to networked computers running under Windows.
 

Some of the most successful open-source technology is licensed under the GNU General Public License or GPL. The GPL mandates that any software that incorporates source code already licensed under the GPL will itself become subject to the GPL. When the resulting software product is distributed, its creator must make the entire source code base freely available to everyone, at no additional charge. Microsoft believes this aspect of the GPL poses a threat to the intellectual property of any organization making use of it. They have stated it fundamentally undermines the independent commercial software sector because it effectively makes it impossible to distribute software on a basis where recipients pay for the product rather than just the cost of distribution. 29  Yet, Microsoft has still emphasized that they wish to promote a "sharing of knowledge, through source code and broader interaction, while respecting the importance of intellectual property rights. If we combine these approaches in the right doses, there is cause for great optimism about the economic road ahead."30
 

The license switch: from GPL31 to MIT32
The Mono class libraries (which hold most of the project's code) 33 will now be released under the MIT X11 License34, instead of the GNU General Public License (GPL).35 Both are "free-software" or open-source licenses, but the MIT X11 differs from the GPL in one major way: It does not require that derivative works created from the code be released to the public. This means developers choosing to modify the Mono code could choose to make the source available, but they are not required to do so by the license.

Ximian's co-founder and chief technologist, Miguel de Icaza, said that the license change would prompt Hewlett Packard and Intel to contribute "large chunks" of code to the project. The MIT license would not prohibit Intel from making improvements to Mono and keeping that code for themselves. Companies that want to adopt the software don't always want to reveal all their software secrets. However, de Icaza pointed out that the advantage to getting large contributors involved in the project outweighed any concerns he had.36 De Icaza is considered one of the leaders in the open-source community -- he is on the board of the GNOME Foundation37, which coordinates the development of the GNOME graphical interface, a Windows-like desktop for Linux systems.

On January 28, Intel Labs and HP's Linux division, both of whom create software for Linux and UNIX operating systems, announced they would lend support to the Mono project.38 Being able to support .NET on Linux and UNIX as well as Windows was important to the companies. The MIT license will allow them to use the Mono class libraries in the software they sell without disclosing how they use it. Intel and HP support the license change because a developer can use the code, modify it and distribute it commercially without having to publish any of the changes made. This will allow them to use the technology in their own software products without disclosing details to competitors.

Intel has a .Net research lab, but part of its requirement is that software produced may be used in proprietary projects as well as open-source projects. Open-source software has been a rallying cry for programmers who wished to undermine Microsoft's power, but with the tightened economy the somewhat religious fervor for the open-source movement has given way to a more pragmatic view among businesses.

With the assistance of Intel and HP, Mono should make better progress on some of the comparatively tedious work of creating the required 3,500 programming modules known as "classes," collectively stored in the Mono class library. These classes are reusable components that handle tasks as basic as defining an integer or drawing a scroll bar or as complex as decoding XML commands.

Microsoft has issued legal warnings about the GPL but is more favorably disposed toward the XFree86-style licenses, collectively referred to as BSD-type license (which the MIT license is).
However, Richard Stallman, a founding father of what has become the open-source movement and the creator and tireless advocate of the GPL, didn't share this opinion.
"He doesn't like the license switch," de Icaza said. "It allows proprietary companies to benefit from the software." 39

 Microsoft and the GPL
While Microsoft aggressively criticizes the open-source movement, especially the GPL, it has been publishing source code under that license for one of its own products for more than two years.40 Microsoft complains that the GPL undermines intellectual property, referring to it as "viral" 41, in that it "infects" everything it touches with the requirement of "openness." Yet, in spite of this, they have made use of the GNU Compiler Collection in its Interix software and adhered to the software license. The company is therefore only required to make the source code for the compiler available, not the entire software product the compiler ships with.

However, Microsoft's Senior Vice President Craig Mundie said the use of the GPL does not change Microsoft's stance on the dangers of open-source software licenses. "In many cases, there is a technical need to have these tools in order to successfully migrate the applications," he says in a statement. "The open-source tools were part of the acquisition of the Interix product and are strictly maintained to meet the functionality requirements of our customers."42
Top Microsoft executives have come out against open-source projects such as Linux that rely on the GPL, claiming that the license "fundamentally undermines" the commercial software model and poses a threat to intellectual property. Interix is a great example of how open-source software does not automatically infect their whole software base, says Eric Allman, founder of Sendmail, which makes the widely used open-source e-mail server software of the same name. "It's part of what's so absurd about the Microsoft claims," he adds. "(Microsoft) implies that the GPL is like the Ebola virus -- if you are in a room with it you're going to be infected."
More and more, critics have pointed out that Microsoft's crusade against open source is flawed. The Wall Street Journal reported recently that the company relies on an open-source project called FreeBSD to run parts of its free e-mail service Hotmail. 43
 
Is the license just a warning about another kind of intellectual property?
So Mono's license change highlights a change in open-source philosophy to allow commercial software companies to work with them. What is perhaps even more important is how the license change further highlights intellectual property issues that become increasingly more important. And this is more important regardless of what license is being used.

These licenses are copyright licenses. While they've not been tested in court, they are generally assumed to be enforceable.44 When Ximian changed license, many noted that it would be easy for large companies to slip patents into the code, thereby inserting a "self-destruct" mechanism into the code.

When Richard Stallman and the Free Software Foundation drafted the GPL, they wanted to protect developers and users from the encumbrances of software patents. They included the following statements:
"... Software patents pose a constant threat to the existence of any free program. We wish to make sure that a company cannot effectively restrict the users of a free program by obtaining a restrictive license from a patent holder. Therefore, we insist that any patent license obtained for a version of the library must be consistent with the full freedom of use specified in this license."
"If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Library at all. For example, if a patent license would not permit royalty-free redistribution of the Library by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Library."
Other licenses, such as the MIT (or X) license adopted by Mono for its class libraries, do not explicitly require a patent license grant. Some experts say that the MIT license and others like it, including the BSD license, carry an "implicit" patent license grant. But this has not been tested.
 

Software Patents and Open-Source
or  "Every trifling device, every shadow of a shade of an idea..."45

In 1981, the Supreme Court held in Diamond v. Diehr that the use of a computer program to monitor a rubber-curing process was patentable, though the only novel element of the process involved calculating numbers. 46 This was a change from previous cases that seemed to reject the patentability of software. In 1972, the Supreme Court denied patentability to a process to convert binary numbers in decimal form to pure binary numbers.47 The Court held the invention was simply a method of solving a mathematical problem, and therefore unpatentable. In 1978, for similar reasons, the Court also held a process using a mathematical formula to update an alarm limit unpatentable.48

The Federal Circuit, struggled with the line between nonpatentable mathematics and patentable useful processes, and wound up relaxing scrutiny in a series of cases.49 Computer-related patent applications tripled between 1999 and 2000 alone.50
Patently Objectionable

Patents and Open-Source
There are two ways that patents could affect open-source software. First there is the possibility of working with partners that put patented code into open-source projects. For instance, one article suggests that Intel could take advantage of the MIT licensing on Mono's class libraries and enforces its patents against every entity making use of its modifications.51 The article goes on to point out that Intel has a "love/hate" relationship with Microsoft and Microsoft could "strongarm" Intel into enforcing patents. And Intel and HP have an organization called the Institute for Development of Emerging Architectures. (The emerging architecture being 64-bit chips.) 52 Further, Hewlett-Packard practices operating system polygamy for the sake of the customer. Microsoft could call in favors from HP and/or Intel in order to harm Mono if it perceives it to be a threat or wishes to harm another competitor, such as Sun.
However, potential patent problems go beyond mere licensing and partnering issues. Even if a developer creates an application that infringes on a patent, one can be liable for infringement., regardless of whether it is used by her code. While a less restrictive license may speed that exposure, it certainly does not eliminate it. Members of the open-source community are becoming increasingly concerned by ongoing moves from Microsoft to acquire a range of software patents that the company can potentially use down the line to attack and try to restrict the development and distribution of open-source software.
The license change and open-source community's question about opening the door for patents brings up another point that was echoed earlier in the paper. That is, with larger companies becoming involved with and competing against open-source companies, intellectual property is a major concern for both sides.

It is not just open-source programmers that do not think patents are a good idea. Some think that software patents may pose the greatest threat to open software.53  Many thousands of software patents have been issued in recent years. Open software developers might write code that allegedly infringes such patents. Richard Stallman, a leader in the free software movement, has likened software patents to a minefield for open source developers.54

Patents do not encourage innovation
For example, studies have shown that intellectual property protection does not necessarily encourage innovation. "Intellectual property appears to be one of those areas where results that seem secure in the context of a static model are overturned in a dynamic model. Imitation invariably inhibits innovation in a static world; in a dynamic world, imitators can provide benefit to both.  Patents preserve innovation incentives in a static world; in a dynamic world, firms may have plenty of incentive to innovate without patents and patents may construct complementary innovation."  "The ideal patent policy limits "knock-off" imitation, but allows developers who make similar, but potentially valuable complementary contributions. In this sense, copyright protection for software programs (which has gone through its own evolution in the last decade) may have achieved a better balance than patent protection. In particular, industry participants complain that software patents have been too broad and too obvious, leading to holdup problems [USTPO]."55

Appropriate patent subject matter
Another concern of programmers is that patents are being given to obvious and elemental claims, making it increasingly difficult to accomplish much without running into a patent problem.

Even Donald Knuth,56 whose tomes on computer programming are an industry standard, wrote to the Patent office57 Commissioner. He said "Along with many other computer scientists, I would like to ask you to reconsider the current policy of giving patents for computational processes.  I find a considerable anxiety throughout the community of
practicing computer scientists that decisions by the patent courts and the Patent and Trademark Office are making life much more difficult for programmers." Further, he pointed out "In the period 1945-1980, it was generally believed that patent law did not pertain to software.  However, it now appears that some people have received patents for algorithms of practical importance--e.g., Lempel-Ziv compression and RSA public key encryption--and are now legally preventing other programmers from using these algorithms." 58

Past performance is not predictive of future behavior...
Bruce Perens59 in an interview ahead of the LinuxWorld conference, said that an increasing number of people in the open-source community are very concerned about the Mono Project and by Microsoft's initiative to buy software patents and to patent as much of its own technology as it can. 60
Perens suggests that with regard to the Mono Project, Ximian should draw up an advance agreement with Microsoft that states the Redmond, Wash., company does not intend to assert its patents on this technology.
Given that open-source companies are partnering with other companies such as Intel, HP and IBM, it might make sense to work with them to acquire such patent licenses. Especially given they have joined forces in order to more effectively compete with Microsoft.
But Miguel de Icaza, the chief technical officer at Ximian, disagreed with Perens, saying that any application that runs on Linux could be infringing on some hidden and unknown patent owned by Microsoft. Also, Microsoft has not historically used its patents in an aggressive way. That does not mean that they will not use it to attack Mono in the future. But there is not that much new in .NET; it's strength lies in the standardization of existing technologies. Further, Ximian believes the .NET technology and infrastructure is too important for the Internet to be wholly owned by Microsoft-they believe a free implementation needs to be available.
But while Perens acknowledged that Microsoft has largely not invoked its patent rights to date, he said, "Past performance is not predictive of future behavior. Microsoft's [senior vice president] Craig Mundie has previously said the company intends to enforce all its patents."

What Open-Source Can Do
 Why Open-Source software may be more vulnerable to patents
Open-source does have a particular disadvantage, as compared to others who might be potential patent infringers. 61 Due to the open nature of the software, that the source and object code is available to anyone who agrees with the license and pays for a download, it is far easier to  determine whether a patented process was utilized within the code. If a proprietary program used the patented process, the patent holder might not be able to find out. The process might be used in the program, but not in a way that was evident to a user of the program. One could tell that the program was, at some point, sorting data, but would have to go to considerable trouble to figure out how the program was sorting it. Indeed, that would be impossible if one did not have access to a copy of the program. It would be much easier, in some respects, to monitor open source programs for infringement of the patent, for the very two reasons that make them open source--one would be entitled to get both a copy of the program and a copy of the source code. So in one respect, open source is peculiarly susceptible to patent monitoring.

Another area in which open source developers could be at a disadvantage is cross-licensing. Because so many software patents have been issued in recent years, and perhaps because the validity and enforceability of many of the patents is rather unclear, patent licensing is quite different in the software area than in other high-tech areas such as biotech. In particular, royalty-free cross-licenses are quite common in the computer industry. The parties to such licenses agree, in effect, not to attempt to enforce their patents against each other. Such non-aggression pacts protect only the parties to the license. To the extent that open-source developers do not seek software patents, it may leave them out of such protection, having nothing to offer as a quid pro quo.
Existing infringing examples
An example of a patent held by Microsoft that could be detrimental to open-source initiatives going forward was clearly demonstrated in the password change protocol found in Samba, he said. Microsoft had modified the password change technology and then patented the new protocol of the password change.
"This means you cannot make a compatible implementation without potentially infringing on a Microsoft patent," Perens said. "We went ahead and did it anyway, and Microsoft hasn't enforced that patent, but it doesn't mean they never will. This is a telling case as they've taken what was an open protocol and deliberately put in a patent to close it and then introduced the patented feature in all new systems."
Samba, which develops open-source software that lets a Linux machine share files or manage print jobs like a Windows file server or print server, has included this patented technology. "In the climate of antitrust it would be nice to force them to overplay their hand, and Microsoft overplays their hand consistently," Perens said.
But while Jeremy Allison, a lead developer for Samba, confirmed that Microsoft holds the patent for the password change protocol, he believed this "was done with no malicious intent at all. All big companies patent software for protection. I also think this is probably a defective patent anyway," he said.
Microsoft's Mundie said he wasn't familiar with the Samba example, "but in any case where someone reverse-engineers technology -- and there's certainly lots of this in the Linux world -- there's always the risk they'll infringe on someone's patent. We highly value intellectual property and the laws created to protect this," he said."62

How Open-source may be able to help the situation in ways unique to it
An important issue in software patent law is the problem of prior art. Patent law provides that an invention is only patentable if after examining the prior art it if found that the invention is both novel (is not already known in the prior art) and nonobvious (would not be obvious to a skilled worker in the field, in light of the prior art).63  What constitutes prior art is defined in the statute,64  but one can think of the prior art as being that which is public knowledge, or public knowledge for a group of individuals, such as programmers.

Computer software is a difficult field in which to locate the prior art, for several reasons.65  First, software has only gradually been seen as patentable, so there is not a great number of software patents to provide a source of prior art. Second, the prior art in computer science is much less organized than in many other fields. In other new technologies, such as biotech, it may be relatively straightforward to check scientific journals and other sources to see if a claimed molecule is in fact novel.66  Computer programming, by contrast, has had much less systematic archiving of knowledge. Much of the knowledge in the trade is in informal form. And more recently, much of the knowledge was intentionally kept out of the public domain. One commentator has determined that some eighty percent of issued software patents make no effective citations of prior art, despite the great amount of published work in computing.67 Recognizing the special problem of prior art in the area of computer related inventions, the U.S. Patent & Trademark Office (USPTO) has begun a project to more systematically organize knowledge in the computer arts, while several private bodies offer help in locating prior art. 68 In addition, the fact that so many software patents have been issued in recent years will make a considerable contribution to the amount of prior art that is available for searching.

 The community and prior art
Previous activity around several controversial patents illustrates the ability of the field to come together and work against restrictive and/or obvious patents. Inventors succeeded in obtaining patent protection on several widespread technologies: fundamental techniques of multimedia,69 and a privacy protection algorithm that threatened to control a common Internet standard.70  In each case, widespread publicity about the patent, together with considerable anger that someone claimed to have invented something that other programmers considered common knowledge, resulted in programmers sending many examples of patent-invalidating prior art to interested parties and the USPTO. In each case, the tide turned--the USPTO took the unusual step of initiating reexamination of the multimedia patent, and the privacy patent likewise looked questionable.71  Open-source developers, such as the world-wide Linux network of thousands, offer a formidable resource for locating prior art--and likewise have shown their willingness to spring into action in defense of the movement. If the prior art shows that the invention is not novel, the patent can be invalidated. Even if the invention is novel, it is still invalid if it was obvious in light of the prior art.

Another example of the strength of community is Amazon.com's effort to patent their "one-click" technology. The patent that has caused the greatest controversy to date is Amazon.com's patent on "one-click" shopping. When it was announced that Amazon.com was suing barnesandnoble.com for infringing this patent the web community complained loudly.
As Tim O'Reilly, Open Source software activist and founder of O'Reilly & Associates, commented in an open letter to Amazon.com CEO Jeff Bezos: "We believe that the rapid innovation of the world wide web and internet platform that has created so much new value for the public (as well as for Amazon and its shareholders) will be choked off if companies take the short-sighted route of filing patents on commonly accepted and obvious techniques in an attempt to keep competitors from using them. Ill-advised patents and other attempts to limit the use of web technology for private advantage have put the whole software development and standards process into a precarious state."
Surprised by the reaction to his one-click patent, and in the face of a threatened boycott of his business, Amazon CEO, Jeff Bezos, published an open letter on the Amazon.com web site. To everyone's surprise, he confided that after giving the matter a lot of thought he too agreed that: "it's possible that the current rules governing business method and software patents could end up harming all of us - including Amazon.com and its many shareholders."
Patent laws are now needed to recognize, he continued, that business method and software patents are fundamentally different to other kinds of patents. As a result, he suggested, such patents should have a much shorter lifespan than the current 17 years. "I would propose three to five years," he said, adding that there should also be a short period for public comment before a patent is issued "to give the Internet community the opportunity to provide prior art references."  He concluded, however, that "it would not be right" for Amazon.com to unilaterally give up its patents - although he promised the company would be careful in how it used its patents in future."72
Internet sites dedicated to patents
O'Reilly and Bezos collaborated to create BountyQuest.com, which premiered in the Fall of 2000. BountyQuest was going to be a market-based approach to patent reform. By providing a forum in which interested parties could offer rewards for the discovery of patent-busting prior art, BountyQuest aimed to solve the problem of an out-of-control patent system.
One year later, BountyQuest's supposed patent-busting experiment appears to have itself gone bust. Only about 20 BountyQuest contests have resulted in bounty-winning prior art since the site's inception. New bounty offers, meanwhile, have slowed to a trickle; 23 contests were running when the company launched but only three contests are now open for submissions.73
However, not everyone felt that this was a useable solution. BountyQuest tried to overcome the inability to build momentum by cold-calling patent lawyers and trying to sell them on the idea of running a contest for one of their cases. But few have proved willing to bite.
Randy Lipsitz -- a partner at Kramer Levin Naftalis & Frankel in New York -- who remembers getting calls from BountyQuest, says he didn't use the company because he never had a client that felt satisfied with the old way of doing things. "There are experts out there who are knowledgeable in the field and you typically go to them," he says. "Prior art is information that needs to be mined. It needs to be put together like a puzzle. It requires expertise."
It also requires, suggests one BountyQuest competitor, a better appreciation of the whole market for prior art -- separate from the ideological goal of busting bad patents. Examples of prior art are commodities in and of themselves. If you can prove you've got prior art, you can sell it to a company wishing to bolster its own patent defense plans.
"BountyQuest was always a joke to those who understand prior art searching," says Greg Aharonian, who makes his living busting patents. "Professional searchers like myself typically bust patents for much less than what BountyQuest charges, and those patents we can't bust, well anyone smart enough to figure out how to find the prior art will know enough about the industry to go straight to the players -- law firms, companies -- and sell the prior art directly, cutting out the BountyQuest middlemen." 74
PatentCafe.com also provides an Internet search engine to assist in the location of Prior art.75
And this is not the only Internet resource available. PriorArt.org is a resource for locating prior art.  "This marks a real détente in the Internet patent wars," says David Kline, a business consultant and author of "Rembrandts in the Attic," a book on patent strategies for business. "Despite their differing views on patents in general, both groups agree that the proliferation of bad patents is bad for everyone. It stifles innovation, constricts the growth of e-commerce, and undermines the success and value of companies that have truly-legitimate patents. PriorArt.org's defensive publishing service offers the first practical solution to this problem."76
The Foresight Institute, a nonprofit nanotechnology think tank, will announce later this month that it is forming an alliance with IP.com, a Rochester, N.Y., start-up dedicated to protecting intellectual property through the publication of new ideas. Together, as of May 1, the pair will give open-source programmers and projects the chance to work within the patent system even as they strive to overturn it. 77
Specifically, the joint venture will give open-source and free-software developers the chance to "defensively publish." For a fee of $20 per document (a significant discount over IP.com's usual $100 fee), software inventors will be able to place their innovations in a searchable software database. Since IP.com has already convinced the U.S. and European patent offices to check its database before issuing patents, inventors will be assured that patent examiners will see innovations that might otherwise be lost to unseen Web pages or college papers. 78
The PriorArt.org service is free to open source inventors. That makes good sense for open-source developers: rather than spend $1 million-plus to fight a bad patent after it's been issued -- an impossibility for most independent inventors -- they can now try to prevent the patent from issuing in the first place.

Surprisingly, given the often-fractious nature of the open-source movement, PriorArt.org has been endorsed by many of its top leaders such as Brian Behlendorf, leader of the open source Apache Project and co-founder and chief technology officer at CollabNet; Jeff "Hemos" Bates, co-founder of the open source community site Slashdot.org; Lawrence Rosen, executive director of the Open Source Initiative; and professor Lawrence Lessig of the Stanford Law School has lent his support.  Lessig noted. "We live in a lawyer's world, and PriorArt.org will be crucial to keeping the innovation commons alive." 79
Indeed, the launching comes at a critical juncture in the development of the Internet. For in today's knowledge economy, patents and other forms of intellectual property have been transformed from mere legal instruments into strategic business assets that can enable firms to strengthen their market position, outflank competitors, and increase their profitability and overall commercial success. With intellectual assets now accounting for roughly 75 percent of every dollar of market value of the S&P 500, in fact, they have become the chief drivers of corporate value and competitive business advantage on the Internet today.80

Open Patents81
Another possibility to deal with patent issues would be for open-source developers to fight fire with fire, by seeking patents of their own and combining them."82 Indeed, and organization has already been formed for this purpose. Openpatents.org's basic idea is to change the rules of the patent game such that it is to the advantage of participants to help solve the problems of software patents. The Open Patent License is in effect a mutual nonagression pact, somewhat like Perens suggested above.

Industry standard
Another way the Mono may be able to protect itself it by asserting that Microsoft intended .NET to be an industry standard and unfairly patented its elements to control access to that standard.

Standards capture can occur through patent procurement.83 Conflicts arise when a patent license is essential to practicing a standard and the patent owner demands royalties that standards users view as commercially unreasonable, or refuses to license on any terms to certain users.84  As patent protection eclipses copyright and other forms of intellectual property as the protection mechanism of choice for many technologies,85  these disputes at the intersection between patents and industry standards will arise more often.86

Standards development is particularly critical for the Internet and software.  Most important is product interoperability. The need for different devices, platforms and programs to communicate with one another, as well as consumer desire for convenience, is obvious.87 The .NET Framework can be divided into two parts:
* That which Microsoft, Intel, and Hewlett-Packard submitted to the European Computer Manufacturers Association (ECMA) as an open standard.
* The Framework Class Library (FCL), which includes class libraries that go beyond those submitted for standardization.

Mono is based on the ECMA Common Language Infrastructure (CLI) and C# specifications (available at http://msdn.microsoft.com/net/ecma). Mono will also be compatible with the .NET Framework and offer compatible implementations of FCL libraries such as ADO.NET and Windows Forms.

On October 31, 2000, Hewlett-Packard, Intel Corporation, and Microsoft jointly submitted proposed draft standards to ECMA, an international standards organization, for use in defining the C# Programming Language (ECMA TC39/TG2) and the Common Language Infrastructure (ECMA TC39/TG3). The official submissions are available from the ECMA web site at http://www.ecma.ch.88

Since they are endeavoring to get certain standards for .Net set as standards for the Internet,
an argument for "patent grabbing" could be made.

Conclusion
Mono's change to the MIT license provides an interesting insight into the shift in paradigm occurring in both open-source and Internet paradigms. With increasing interaction with commercial software companies necessary for the survival of all parties, intellectual property rights come increasingly to the fore. The open-source community has already demonstrated its strength at fending off patent encroachments by establishing web sites to assist in locating prior art, They can further use their community and communication skills to force companies with collections of patents to remain inactive in enforcing them. Also, they could find some "open-source" lawyers who would be willing to help them acquire patents that could be used in an open way, as well as provide negotiating power in case of patent enforcement.

1 A company working to improve the Linux operating system for ordinary computer users. See www.ximian.com.

2 The Mono project website is located at: www.gomono.com.

3 A Microsoft operating system platform that incorporates applications, a suite of tools and services and a change in the infrastructure of the company's Web strategy. The objective of .NET is to bring users into the next generation of the Internet by conquering the deficiencies of the first generation and giving users a more enriched experience in using the Web for both personal and business applications. This is Microsoft's most ambitious undertaking since the release of Windows 3.0.
The first Windows .NET operating system is expected to be released in 2001. Microsoft views this new technology as revolutionary, enabling Internet users to do things that were never before possible, such as integrate fax, e-mail and phone services, centralize data storage and synchronize all of a users computing devices to be automatically updated. From: http://www.webopedia.com/TERM/d/dot_NET.html

4 From: http://www.webopedia.com/TERM/o/open_source.html (last visited April 1, 2002).

5 Ximian Makes License Switch, By Peter Galli, January 28, 2002 http://www.eweek.com/article/0,3658,s%253D701%2526a%253D21766,00.asp (last visited April 1, 2002)

6 Tina Gasperson article.

7 How Big Blue Fell for Linux, Leonard.

8 From http://www.opensource.org (last visited April 1, 2002)

9 From http://www.opensource.org (last visited April 1, 2002)

10 Linux Pronounced lee-nucks. A freely-distributable open source implementation of UNIX that runs on a number of hardware platforms, including Intel and Motorola microprocessors. It was developed mainly by Linus Torvalds. Because it's free, and because it runs on many platforms, including PCs, Macintoshes and Amigas, Linux has become extremely popular over the last couple years. From http://www.webopedia.com/TERM/L/Linux.html
Apache web server: A public-domain Web server developed by a loosely-knit group of programmers. The first version of Apache, based on the NCSA httpd Web server, was developed in 1995. Because it was developed from existing NCSA code plus various patches, it was called a patchy server - hence the name Apache Server. As a result of its sophisticated features, excellent performance, and low price (it's free), Apache has become the world's most popular Web server. By some estimates, it is used to host more than 50% of all Web sites in the world. Core development of the Apache Web server is performed by a group of about 20 volunteer programmers, called the Apache Group. However, because the source code is freely available, anyone can adapt the server for specific needs, and there is a large public library of Apache add-ons. In many respects, development of Apache is similar to development of the Linux operating system. The original version of Apache was written for UNIX, but there are now versions that run under OS/2, Windows and other platforms. From : http://www.webopedia.com/TERM/A/Apache_Web_server.html
Netscape: Officially called Netscape Communications Corporation, Netscape was founded by James H. Clark and Marc Andreessen in 1994. It revolutionized the computer software market by giving away for free its popular Navigator Web browser until it had acquired an overwhelming market share for this category of software.
This strategy is now used by many other software companies, including Microsoft, which also distributes its Web browser, Internet Explorer, for free.
In addition to its browsers, Netscape also produces Web servers and tools for building intranets. Indeed, its in the server category that Netscape gets most of its revenue. From: http://www.webopedia.com/TERM/N/Netscape.html

http://www.webopedia.com/TERM/o/operating_system.html, last visited April 1, 2002)

11  "From the "things that could happen if Mono is incorporated into Gnome" department: Intel, having gleefully taken advantage of the MIT licensing on Mono's class libraries, enforces its patents against every entity making use of its modifications, including the Gnome project, effectively shutting it down." The patent trap: If Gnome gets Mono, Tina Gasperson, NewsForge, February 21, 2002    http://newsforge.com/article.pl?sid=02/02/19/1651244&mode=thread, also at http://bsdvault.net/article.php?sid=454  (last visited March 1, 2002)

12 http://www.wired.com/news/technology/0,1282,33853,00.html , Open Season on Open Source? by Leander Kahney  3:00 a.m. Jan. 27, 2000 PST The five-member panel also included Tim O'Reilly, president of O'Reilly and Associates; Chris DiBona, an evangelist for VA Linux Systems; Michael Tiemann, chief technology officer at Red Hat; and Eric Allman, CTO at Sendmail.

13 "Open-source approach fades in tough times, bu Stephen Shankland, Staff Writer, CNET News.com, November 20, 2001, 4:00AM PT.

14 .NET 101: Building a Service within the .NET Framework, Internet world, March 15, 2001, by Jason Clark, http://www.internetworld.com/dotnet.php?inc=in_focus/031501/03.15.01dotnetframework.html (last visited March 20, 2002). This paper discusses .NET in general terms, but for a more in-depth look at the technical aspects, see http://wdvl.internet.com/Authoring/Tools/NET/index.html for the first chapter in WROX's book "Introducing .NET"

15 www.webopedia.com

16 www.webopedia.com/TERM/D/dot_NET.html (last visited March 20,2002).

17 www.webopedia.com/TERM/D/dot_NET.html (last visited March 20,2002).

18 .NET 101: Building a Service within the .NET Framework, Internet world, March 15, 2001, by Jason Clark, http://www.internetworld.com/dotnet.php?inc=in_focus/031501/03.15.01dotnetframework.html (last visited March 20, 2002)

19 Simple Object Access Protocol (SOAP) provides a way for applications to communicate with each other over the Internet, independent of platform.  SOAP piggybacks a DOM (see definition below in this note) onto HTTP (port 80) in order to penetrate server firewalls, which are usually configured to accept port 80 and port 21 (FTP) requests. SOAP relies on XML to define the format of the information and then adds the necessary HTTP headers to send it. SOAP was developed by Microsoft, DevelopMentor and Userland Software and has been proposed to the Internet Engineering Task Force (IETF) as a standard. From: http://www.webopedia.com/TERM/S/SOAP.html. (Last visited March 20,2002)

DOM: Short for Document Object Model, the specification for how objects in a Web page (text, images, headers, links, etc.) are represented. The DOM defines what attributes are associated with each object, and how the objects and attributes can be manipulated. Dynamic HTML (DHTML) relies on the DOM to dynamically change the appearance of Web pages after they have been downloaded to a user's browser.  Unfortunately, the two leading browsers -- Netscape Navigator and Microsoft Internet Explorer -- use different DOMs. This is one reason why their respective implementations of DHTML are so different. Both companies have submitted their DOMs to the World Wide Web Consortium (W3C) for standardization, which now has the daunting task of specifying a standard DOM without alienating either of the browser giants. The W3C's DOM specification will support both HTML and XML. From: http://www.webopedia.com/TERM/D/DOM.html.

20 Short for Extensible Markup Language, a specification developed by the W3C. XML is a pared-down version of SGML, designed especially for Web documents. It allows designers to create their own customized tags, enabling the definition, transmission, validation, and interpretation of data between applications and between organizations. From: http://www.webopedia.com/TERM/X/XML.html. (Last visited March 20,2002)

21 ECMA (http://www.ecma.ch/), based rather appropriately in Switzerland, defines its aims as:

To develop, in co-operation with the appropriate National, European and International organizations Standards and Technical Reports in order to facilitate and standardize the use of ICT systems.
To encourage the correct use of Standards by influencing the environment in which they are applied.
To promulgate the various Standards that ECMA produces.

22 .NET 101: Building a Service within the .NET Framework, Internet world, March 15, 2001, by Jason Clark, http://www.internetworld.com/dotnet.php?inc=in_focus/031501/03.15.01dotnetframework.html (last visited March 20, 2002)

23 Short for Domain Name System (or Service), an Internet service that translates domain names into IP addresses. Because domain names are alphabetic, they're easier to remember. The Internet however, is really based on IP addresses. Every time you use a domain name, therefore, a DNS service must translate the name into the corresponding IP address. For example, the domain name www.example.com might translate to 198.105.232.4. From: http://www.webopedia.com/TERM/D/DNS.html. (Last visited March 20,2002)

24 Not everyone is excited that .Net will be the next "big" thing. For example, see the discussion at http://www.linuxjournal.com/article.php?sid=5082, Industry Briefs: Following up "Beware the Microsoft Shell Game!" Posted on Thursday, May 3, 2001 by Eric S. Raymond. Where he cites numerous gaping holes in Microsoft's security makes it unlikely that they will be secure enough to hold so much information about a user.
See also: But Samba's Allison said the Mono Project is "a very bad idea -- in fact, it's a terrible idea. By doing this they are helping .Net become a standard. ... .Net will become important if a majority of the clients use it, but it will not be mandatory if only, say, 50 percent use it, as Web sites will then still have to do Java stuff," Allison said. "By implementing an open-source version of this, they are making it easier for Microsoft to get to that magic monopoly figure.
Some analysts are optimistic that Microsoft can make the switch. Meta's Zachmann suggest current economic difficulties can help Microsoft buy up technologies that are becoming available in the dot-com shakeout. "There's no better time to have cash than in a down market. You'll see Microsoft going on quite an acquisition spree, and I imagine quite a lot of that will be things they think they can turn into Web-based services. Some analysts are less convinced that .Net services will ever be an important part of Microsoft's business. W. Christopher Mortenson of Deutsche Banc Alex Brown see Microsoft remaining in its position as a tool-maker. "I think the primary way they'll make money is by selling tools and infrastructure to other people who want to offer .NET services." For the entire article, see http://www.internetworld.com/dotnet.php?inc=in_focus/031501/03.15.01dotnetanalysis4.html  .NET Analysis, Investigating .NET: Evaluating Microsoft's Business Model, by Thomas J. DeLoughry, from Internet World Magazine. Last visited March 20, 2002.

"And when they've got that on the client, all the servers are in trouble. Look at the way they leveraged their client base to take over services like authentication, e-mail with Exchange, and DNS services by tying Active Directory to DNS. It's a continual case of taking their monopoly on a client system and tying servers to it," he said."24

25 For more details on the Mono project, its rationale and detailed technological discussions, see Mono project rationale at http://www.go-mono.com/rationale.html (last visited April 1, 2002).

26 C# is similar to Sun Microsystems' Java, which lets programs run on a variety of computer systems without having to be changed for each one. But where Java programs run inside a "Java virtual machine," C# programs run inside what Microsoft calls a Common Runtime Infrastructure.

27 http://www.softwaremag.com/archive/2000dec/EditorsLetter.html , December 2000/January 2001, Guarding the Citadel: IBM's Open Source Stance

28 11-OCT BUSLT 52, Business Law Today, September/October, 2001, Feature, *52 OPEN SOURCE, OPEN WORLD, New Possibilities for Computer Software in Business, Thomas M. Pitegoff , Copyright (c) 2001 by American Bar Association; Thomas M. Pitegoff

29 http://www.microsoft.com/presspass/exec/craig/05-03sharedsource.asp, Prepared Text of Remarks by Craig Mundie, Microsoft Senior Vice President, The Commercial Software Model
The New York University Stern School of Business, May 3, 2001

30 http://www.microsoft.com/presspass/exec/craig/05-03sharedsource.asp, Prepared Text of Remarks by Craig Mundie, Microsoft Senior Vice President, The Commercial Software Model
The New York University Stern School of Business, May 3, 2001

31 http://www.opensource.org/licenses/gpl-license.html

The GNU General Public License (GPL)
Version 2, June 1991
Copyright (C) 1989, 1991 Free Software Foundation, Inc.
59 Temple Place, Suite 330, Boston, MA 02111-1307 USA
Everyone is permitted to copy and distribute verbatim copies
of this license document, but changing it is not allowed.
Preamble
The licenses for most software are designed to take away your freedom to share and change it. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change free software--to make sure the software is free for all its users. This General Public License applies to most of the Free Software Foundation's software and to any other program whose authors commit to using it. (Some other Free Software Foundation software is covered by the GNU Library General Public License instead.) You can apply it to your programs, too.
When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things.
To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it.
For example, if you distribute copies of such a program, whether gratis or for a fee, you must give the recipients all the rights that you have. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights.
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Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.
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TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION
0. This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you".
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1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program.
You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee.
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a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.
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These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.
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In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.
3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:
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END OF TERMS AND CONDITIONS
How to Apply These Terms to Your New Programs
If you develop a new program, and you want it to be of the greatest possible use to the public, the best way to achieve this is to make it free software which everyone can redistribute and change under these terms.
To do so, attach the following notices to the program. It is safest to attach them to the start of each source file to most effectively convey the exclusion of warranty; and each file should have at least the "copyright" line and a pointer to where the full notice is found.
one line to give the program's name and a brief idea of what it does.
Copyright (C)
This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation; either version 2 of the License, or (at your option) any later version.
This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details.
You should have received a copy of the GNU General Public License along with this program; if not, write to the Free Software Foundation, Inc., 59 Temple Place, Suite 330, Boston, MA 02111-1307 USA
Also add information on how to contact you by electronic and paper mail.
If the program is interactive, make it output a short notice like this when it starts in an interactive mode:
Gnomovision version 69, Copyright (C) year name of author Gnomovision comes with ABSOLUTELY NO WARRANTY; for details type `show w'. This is free software, and you are welcome to redistribute it under certain conditions; type `show c' for details.
The hypothetical commands `show w' and `show c' should show the appropriate parts of the General Public License. Of course, the commands you use may be called something other than `show w' and `show c'; they could even be mouse-clicks or menu items--whatever suits your program.
You should also get your employer (if you work as a programmer) or your school, if any, to sign a "copyright disclaimer" for the program, if necessary. Here is a sample; alter the names:
Yoyodyne, Inc., hereby disclaims all copyright interest
in the program `Gnomovision' (which makes passes at compilers)
written by James Hacker.
signature of Ty Coon, 1 April 1989
Ty Coon, President of Vice
This General Public License does not permit incorporating your program into proprietary programs. If your program is a subroutine library, you may consider it more useful to permit linking proprietary applications with the library. If this is what you want to do, use the GNU Library General Public License instead of this License.

The MIT License
Copyright (c) <year> <copyright holders>
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

34 To view a copy of the MIT license, see: http://www.opensource.org/licenses/mit-license.html (last visited March 28, 2002).

35 To view a copy of the GPL, see: http://www.opensource.org/licenses/gpl-license.html (last visited March 28, 2002).

36 Called for comment, an Intel representative said that his company was committed to keeping its code open to developers, allowing them to do whatever they want with it, including giving them the option of not releasing their own improvements to the system. From: Open Source's Dot-Net Less Open
By Farhad Manjoo , http://www.wired.com//news/50037,00.html  ,2:00 a.m. Jan. 28, 2002 PST

37 For more on the GNOME Foundation, see: http://foundation.gnome.org/ (last visited April 1, 2002).

38 Open-Source Competition for Microsoft's .Net: Intel and HP are among those backing Mono, an effort to develop a programming environment for Linux. Matt Berger, IDG News Service, Monday, January 28, 2002.

39 Ximian changes open-source license, By Stephen Shankland , Staff Writer, CNET News.com, January 27, 2002, 9:00 PM PT

40 Microsoft distributes a product called Interix, which is used by customers to port Unix applications to its Windows operating systems. Interix includes a software compiler called the GNU Compiler Collection, a product first developed by Free Software Foundation founder Richard Stallman that is covered by the General Public License. From : Microsoft Is Open to Open Source: Despite its harsh criticism of the open-source movement, software giant has taken advantage of its technology. Matt Berger, IDG News Service Thursday, June 28, 2001.

41 Microsoft license spurns open source , By Stephen Shankland , Staff Writer, CNET News.com
June 22, 2001, 12:05 PM PT

42 See note 24, above

43 Ibid

44 The validity of open-source software licenses have not been litigated, but it stands to reason they may be considered as click-wrap or shrink-wrap cases. Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. CAL. L. REV. 1239, 1251-52 (1995). See also Garry L. Founds, Note, Shrinkwrap and Clickwrap Agreements: 2B or not 2B?, 52 Fed. Comm. L.J. 99 (1999)." Darren C Baker, ProCD v. Zeidenberg: Commercial Reality, Flexibility in Contract Formation, and Notions of Manifested Assent in the Arena of Shrinkwrap Licenses, 92 NW. U. L. REV. 379, 399 (1997).

45 Justice Douglas quoted from: The Great Atlantic and Pacific Tea Co. vs. Supermarket Corp., 340 U.S. 147 (1950) The full quote is:" The Constitution never sanctioned the patenting of gadgets. [...] It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures."

46 See Diamond v. Diehr, 450 U.S. 175 (1981).

47 See Gottschalk v. Benson, 409 U.S. 63 (1972); see also John Fellas, The Patentability of Software-related Inventions in the United States, 21 Eur. Intell. Prop. Rev. 330 (1999).

48 See Parker v. Flook, 437 U.S. 584 (1978).

49 See AT&T Corp. v. Excel Communications Inc., 175 F.3d 1352 (Fed. Cir. 1999) (holding patent protection broadly available for software as process as well as machine); State Street Bank & Trust Co. v. Signature Fin. Group, 149 F.3d 1368, (Fed. Cir. 1998), cert. denied, 525 U.S. 1093 (1999) (upholding patentability for software implementing business method, which implemented mutual fund plan); In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994); In re Lowry, 32 F.3d 1579 (Fed. Cir. 1994). See also In re Freeman, 573 F.2d 1237 (C.C.P.A. 1978); In re Walter, 618 F.2d 758 (C.C.P.A. 1980); and In re Abele, 684 F.2d 982 (C.C.P.A. 1982) (early trilogy of Court of Customs and Patent Appeals cases attempting to formulate rules for patentability of software). The United States cases have had a certain amount of persuasive weight in other countries. See, e.g., Natalie Stoianoff, Patenting Computer Software: An Australian Perspective, 21 Eur. Intell. Prop. Rev. 500 (1999) (discussing use of U.S. precedent in Australia); Richard H. Stern, Scope-of-Protection Problems with Patents and Copyrights on Methods of Doing Business, 10 Fordham Intell. Prop. Media & Ent. L.J. 105 (1999); Christopher § Cantzler, Comment, Leading the Way to Consistency for Patentability of Computer Software, 71 U. Colo. L. Rev. 423 (2000); Robert A. Kreiss, Patent Protection for Computer Programs and Mathematical Algorithms: the Constitutional Limitations on Patentable Subject Matter, 29 N.M. L. Rev. 31(1999). The free issuance of software patents may even lead practitioners to forgo means to draft patents that will stand up in litigation. See Michael L. Kiklis, A Patent Saved is a Patent Earned, 17 The Computer Law. 3 (Jan. 2000); Examination Guidelines for Computer-Related Inventions, 61 Fed. Reg. 7478 (1996); Wesley L. Austin; Software Patents, 14 The Computer Law. 14 (June 1997); Keith Stephens, Software Patent Developments: The PTO's Examination Guidelines for Computer-Related Inventions, 17 J. Marshall J. Computer & Info. L. 277 (1998). On the continuing struggle to define the subject matter of patents in new technologies, see R. Carl Moy, Statutory Subject Matter And Hybrid Claiming, 17 J. Marshall J. Computer & Info. L. 277 (1998).

50 http://www.salon.com/tech/feature/2001/03/21/open_source_patents/, Patents are your friends, Can open-source programmers use intellectual property laws to protect themselves from corporate software snatchers? By Damien Cave

51 Tina Gasperson, The patent trap

52 Tina Gasperson, The patent trap

53 See, e.g., Richard Stallman, The GNU Operating System and the Free Software Movement, in Open Sources: Voices From the Open Source Revolution 67 (Chris DiBona et al, eds., 1999) ("The worst threat we face comes from software patents, which can put algorithms and features off-limits to free software for up to twenty years.").

54 Simon Garfinkel, Patently Absurd, Wired 2.07.

55 James Bessen and Eric Maskin, Sequential innovation, Patents, and Imitation, Working Paper Department of Economics, no. 00-01, January 2000, Massachusetts Institute of Technology. http://www.researchoninnovation.org/patent.pdf

56 So comprehensive are Knuth's texts that the Jargon File of hacker slang offers a definition of the word "Knuth": "Mythically, the reference that answers all questions about data structures or algorithms," and goes on to recommend a safe response to any question for which you don't have a ready answer: "I think you can find that in Knuth."

57 http://lpf.ai.mit.edu/Patents/knuth-to-pto.txt

58 http://lpf.ai.mit.edu/Patents/knuth-to-pto.txt

59 Hewlett-Packard Co.'s open-source and Linux strategist who helped to craft the Debian Social Contract, which later became the Open Source Definition.

60 http://techupdate.zdnet.com/techupdate/stories/main/0,14179,2808548,00.html
ZDNet Tech Update: Business & Technology Today, Microsoft patents a threat to open source, By Peter Galli, August 28, 2001 This story originally appeared in eWEEK.

61 This point is made in discussions of open source and patents on slashdot.com and the cni-copyright discussion list.

62 Ibid.

63 On the special problems of applying nonobviousness analysis in new technological areas, see John Kaskan, Obviousness and New Technologies, 10 Fordham Intell. Prop. Media & Ent. L.J. 159 (1999); see also Qing Lin, A Proposed Test for Applying the Doctrine of Equivalents to Biotechnology Inventions: The Nonobviousness Test, 74 Wash. L. Rev. 885 (1999); A. Samuel Oddi, Beyond Obviousness: Invention Protection in the Twenty-First Century, 38 Am. U. L. Rev. 1097 (1998). On nonobviousness generally, see Nonobviousness: The Ultimate Condition of Patentability (John F. Witherspoon, ed. 1980).

64 See 35 U.S.C. §§ 103(c) 102(e-g) (1999).

65 See, e.g., Tocups & O'Connell, supra note 117, at n.20-21; see also Seth Shulman, Software Patents Tangle the Web, Tech. Rev. (Mar./Apr. 2000), at http://www.techreview. com/articles/ma00/shulman.htm.

66 See, e.g., Philippe G. Ducor, Patenting the Recombinant Products of Biotechnology and Other Molecules 15 (Kluwer Law Int. 1998) (stating that novelty analysis in biotech "is generally not difficult to evaluate").

67 See included Greg Aharonian, Internet Patent New Service (Feb. 10, 2000) at http://bustpatents.com/archive.htm. Also, "For yet another year, over 50% of software patents cite NO non-patent prior art, the average patent citing only 3.1 non-patent prior art items, which is woefully inadequate, since there are dozens of highly relevant non-patent prior art items for most of the patents being issued.  And too many large companies are hiding behind the impotence of Rule 56 to not do any searching themselves.  Some numbers:
                   Number of non-patent      Percentage of issued
                   prior art citations         software patents
                   --------------------      --------------------
                                                1998     1997
                            0                    53       51
                            1                    12       14
                            2-3                  14       15
                            4-10                 15       15
                            >10                   6        5

        Average number of non-patent prior art cited in 1998  -  3 articles
        Average number cited ignoring outliers                -  2 articles
        Average number of prior US patents cited              - 11 patents
        Average number of prior foreign patents cited         -  1 patent

Less than six percent of the patents cite even half of the relevant amount
of prior art.

68 In addition to the USPTO, the Software Patent Institute is attempting to build resources for searching prior art in the software area. There are also several websites to search for prior art, such as http://www.derwent.com/ipmatters/features/insure.html. Further, the Foresight Institute, a nonprofit nanotechnology think tank, announced that it is forming an alliance with IP.com, a Rochester, N.Y., start-up dedicated to protecting intellectual property through the publication of new ideas. The pair may give open-source programmers and projects the chance to work within the patent system even as they strive to overturn it.
69 See Patent Barred For Compton's, The New York Times, Oct. 31, 1994, at D7.

70 See Privacy Software Patent may be Challenged by Web Protocol Developers, 58 BNA Patent, Trademark & Copyright J. 284.

71 See Privacy Software Patent may be Challenged by Web Protocol Developers, supra; at 284; Frederick H. Colen & Robert D. Kucler, Re- exam of Y2K Patent: Much at Stake, Nat'l L. J., Mar. 13, 2000, at B10.

72 http://www.derwent.com/ipmatters/features/controversy.html, Internet sparks patenting controversy by Richard Poynder , Nov 2000.

73 http://www.salon.com/tech/feature/2002/02/15/bountyquest/print.html, Losing the war on patents, Attempts to fix the intellectual property system from below are faltering. Is it time to bring in the feds? By Damien Cave.

74 http://www.salon.com/tech/feature/2002/02/15/bountyquest/print.html, Losing the war on patents, Attempts to fix the intellectual property system from below are faltering. Is it time to bring in the feds? By Damien Cave.

75 http://www.derwent.com/ipmatters/features/insure.html, Using the Internet for non-patent prior art searches By Andy Gibbs, founder, PatentCafé.com Aug 2000

76 http://www.ip.com/news.jsp?id=pr_2001-05-08 , New Weapon in Fight Against Bogus Patents, Top Open Source Leaders Endorse "PriorArt.org" Initiative Billions at Stake in Internet Patent Wars , ROCHESTER, NY, May 8, 2001.

77 http://www.salon.com/tech/feature/2001/03/21/open_source_patents/, Patents are your friends, Can open-source programmers use intellectual property laws to protect themselves from corporate software snatchers? By Damien Cave

78 http://www.salon.com/tech/feature/2001/03/21/open_source_patents/, Patents are your friends, Can open-source programmers use intellectual property laws to protect themselves from corporate software snatchers? By Damien Cave

79 http://www.ip.com/news.jsp?id=pr_2001-05-08, New Weapon in Fight Against Bogus Patents, Top Open Source Leaders Endorse "PriorArt.org" Initiative Billions at Stake in Internet Patent Wars ROCHESTER, NY, May 8, 2001

80 http://www.ip.com/news.jsp?id=pr_2001-05-08, New Weapon in Fight Against Bogus Patents, Top Open Source Leaders Endorse "PriorArt.org" Initiative Billions at Stake in Internet Patent Wars ROCHESTER, NY, May 8, 2001

81 http://www.salon.com/tech/feature/2001/03/21/open_source_patents/ Patents are your friends, Can open-source programmers use intellectual property laws to protect themselves from corporate software snatchers? By Damien Cave.

82 9 Geo. Mason L. Rev. 25 George Mason Law Review Fall, 2000 Article THE PARADOXES OF FREE SOFTWARE Stephen M. McJohn

83 Industry standards are also covered in copyright law. See, e.g., Practice Mgmt. Info. Corp. v. Am. Med. Ass'n, 121 F.3d 516, 520-21 (9th Cir. 1997); Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 821-22 (1st Cir. 1995) (Boudin, J., concurring) (noting that Lotus 1-2-3 has become a de facto standard for electronic spreadsheet programs, and suggesting that Borland's unlicensed use of Lotus's menu command structure may be privileged).
 

85 See Robert P. Merges, As Many As Six Impossible Patents Before Breakfast: Property Rights For Business Concepts and Patent System Reform, 14 Berkeley Tech. L.J. 577, 590-91 (1999) (arguing that sharp increase in patent applications stemming from this newly patentable subject matter has pushed the patent system into trouble).  See also Anne H. Chasser, Developments At The United States Patent and Trademark Office, 19 Temp. Envtl. L. & Tech. J. 27, 31 (2000) (stating that the USPTO has "tripled the number of examiners that examine patents since State Street was decided).

86 See Timothy Baumann, As Standards Proliferate, So Too a Rise in Defendants Asserting 'Standards Abuse', 2 Patent Strategy & Management 1 (June 2001).

87 PATENTING INDUSTRY STANDARDS, Janice M. Mueller, 34 J. Marshall L. Rev. 897
88 ECMA TC39 TG2 and TG3 Working Documents at http://www.dotnetexperts.com/ecma/ (last visited April 1, 2002.)