Why Black Duck Software was granted patent protection by the US Government
Open Source Community February 8th, 2010Tim Yeaton
President and CEO
tyeaton@blackducksoftware.com
The legal debates and discussions around software and patent protection are impassioned, energetic, and sometimes bewildering. To cut through the confusion, I’d like to answer two questions: Why did Black Duck Software just receive a US patent on its intellectual property, and why did Black Duck decide to file for the patent back in 2003?
Black Duck Software is in the business of enabling our customers (which include three quarters of the top 25 software companies in the world) to use open source software in a managed, automated way to improve the cost-effectiveness and time-to-market of their application development. We do this by making open content (e.g., metadata about OSS projects & code) useable and consumable for this purpose. This is quite similar to Google, whose search engine technology also makes open content (in their case, web pages) consumable by end users. The notion of commercial open source equating to making open content consumable has been widely written about by industry thought-leaders such as Tim O’Reilly and Matt Asay.
Virtually all large software companies, including those recognized as leaders in OSS (Google, IBM, HP and Red Hat for example), have patent portfolios. Sticking with the Google example, the company has dozens of patent applications in process for their search engine technology, since Google has made enormous investments in defining and optimizing those algorithms. In our case, Black Duck Software has invested over $75 million to perfect our license analysis algorithms and the products that include them, to better enable customers to manage the use of open source at scale. Our technology analyzes 25 different attributes of over 1800 license types, all in the context of specific development use cases, to do this analysis and resolution. We are the undisputed leader in our segment as a result of these investments.
Why did we file for the patent seven years ago? Black Duck Software recognized then as now that software patents are a reality, and that having patents of our own to protect against IP incursions is a necessity. Similar to Google, IBM, HP and Red Hat, we must use software patents to protect our intellectual property from such incursions. In our market segment, a Black Duck competitor was granted a software patent last year. As a consequence, if we didn’t protect our IP using the patent system and have a means to defend ourselves from IP incursions, we’d be irresponsible to our customers and our shareholders.
During my time as CMO at Red Hat, I spoke publicly on numerous occasions that the software patent system had deficiencies and should be revised; and my personal views have not changed. The software community in general is deeply divided over the notion of patents for software; pure FOSS advocates believe that all content and software should be open and freely available. Commercial OSS advocates, including Black Duck, believe that making open content and open source software useable in some way, and commercializing the innovations that make it more useful, is “open” too – in fact, that is the model that most commercial open source products and companies follow, led by Red Hat’s business model.
Speaking of Red Hat, we’ve been considering their style of “Patent Promise”…and Black Duck will adopt a similar approach, while ensuring we continue to protect the company and its customers. For example, as we continue to champion broader use of OSS, we would protect free open source projects in our space by providing them a no-cost license to our patents – simply by reaching out to us. This allows us to protect our IP, if necessary, vis-à-vis existing or new commercialization efforts that encroach on our IP, but honors the view that I hold that software patents can in some instances stifle innovation in open source. This clearly is not our intent; in fact our business depends totally on accelerating use of OSS by customers. We want to champion, not stifle innovation in FOSS projects, so we’ll gladly take that pledge and challenge others in similar circumstances to do likewise.
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February 8th, 2010 at 6:42 am
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February 8th, 2010 at 7:01 am
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February 8th, 2010 at 1:14 pm
I’ve been critical in the past that mere patent promises, even those like Red Hat’s, don’t go far enough to protect the FLOSS community. Why not make a GPLv3-compatible full-fledged, irrevocable patent license instead to truly show you aren’t working against the FLOSS world with this patent?
February 8th, 2010 at 2:59 pm
Bradley, thanks for your reply. I would have responded directly to the relevant post on your own blog, but strangely it doesn’t accept comments
Patent promises like Red Hat’s (and now, ours) strike the balance of enabling the FOSS community to innovate, unfettered, while still protecting our respective companies’ IP from commercial incursion. It’s instructive that Red Hat, whose commercial offerings are almost all licensed under the GPL family of licenses, is nonetheless compelled to 1) continue to file for patents, and 2) make a patent promise to then protect the FOSS community…which they have. As companies with customers and shareholders, we have a fiduciary responsibility to protect their interests, while as an open source related business, we also have an obligation to enable the FOSS community to flourish as well.
That is exactly what we are trying to accomplish, using the same model as Red Hat. Let’s face it, there are many, many companies participating in OSS in some way who won’t even take this step or anything close to it. For larger OSS-related companies that have (or have filed for) patents, maybe getting them all to make patent promises would be energy well-spent.
February 8th, 2010 at 5:55 pm
I think the key difference between you and Red Hat is that Red Hat does, indeed, release its primary products as Free Software. Your primary products are proprietary software. It makes your other actions, such as patenting, that much more suspicious.
I understand that for-profit companies have a duty only to the almighty dollar; it’s lamentable, and just an excuse.
Finally, my blog comments are handled through identica. There is a link at the bottom of each blog post.
February 24th, 2010 at 3:50 am
The RedHat patent promise is powder in the eyes.
A promise not to sue hobbyists sounds like a Microsoft promise:
http://www.microsoft.com/interop/principles/osspatentpledge.mspx
All of those promises are flawed, there is no “promise law”.
February 26th, 2010 at 1:52 pm
Red Hat doesn’t make promises lightly and is a company many in the open source community respect. We also don’t think of open source developers as ‘hobbyists’. While there certainly are some, the majority are serious developers making a contribution. We want to support them, hence our offer for a no fee license.