"It's an extraordinary thing to watch, to have evidence provided within minutes of arguments being brought in court," Byer says. "This type of response will be with us for a long time."
Several vendors who sell open-source software and services, including Hewlett-Packard, IBM, and Novell, have offered varying levels of financial protection against litigation in order to keep growing their Linux-related revenue. Open Source Development Labs, a global consortium of technology companies promoting the adoption of Linux, is considering the creation of a database that would help programmers search for prior art, which is similar, previously patented technology that would prohibit new developments from be patented.
Open-source software vendors and users may feel threatened by litigation because the various open-source licenses deal with patents in different ways, or not at all. The open-source community has more than 53 licenses at its disposal, this proliferation occurring when open-source programmers decide existing licenses aren't sufficient, Rosen says.
With the average patent litigation costing its participants about $3 million each, it behooves the open-source market to work this out, says Paul Arne, a partner with Morris, Manning & Martin LLP and co-chair of that firm's technology group. Still, there are fewer open-source licenses than there are proprietary software licenses. "Actually, it's a consolidation," he says. "With different proprietary vendors, their licenses are never the same."