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Stephen Shankland

Staff Writer, CNET

Sun Microsystems has begun fending off concerns that there are severe limits on how programmers may use 1,600 patents it’s unfettering in conjunction with its open-source Solaris plan.

The company said last week that it would permit open-source programmers to use the patents when working on the OpenSolaris project. What several influential observers found unclear is whether programmers in other areas–most notably in Solaris competitor Linux–would have to fear legal action from Sun.

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

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

The issue isn’t a mere philosophical-legal curiosity. It could influence whether Sun technology may be incorporated into Linux and how other companies might choose to liberate their own patents. And it might help Sun burnish its reputation with open-source fans, a reputation that–despite considerable contributions of open-source software–has been tarnished by Sun’s refusal thus far to make its Java technology open source.

Among those who’d like to see Sun clear up the patent situation is Dan Ravicher, executive director of the Public Patent Foundation, a group that seeks to change patent laws and overturn patents it believes were wrongly issued. Ravicher also conducted a study that found Linux could infringe as many as 283 patents, including 27 by Linux foe Microsoft.

“The legal language does not comport with what the executive intent has been,” Ravicher said Friday of Sun’s position. From his reading of the Community Development and Distribution License, or CDDL, that governs OpenSolaris, the only patent license Sun grants “is to practice that patent in the version of Solaris that is in Sun’s release, not in any other operating system.”

Others who raised concerns about Sun’s patent move are Bob Sutor, vice president of standards at IBM; Richard Stallman, founder of the Free Software Foundation that provided much of the legal and technological foundation for the open-source movement; Eben Moglen, the attorney who also represents the Free Software Foundation; and Bruce Perens, a prominent open-source advocate.

Sun’s move follows IBM’s release of 500 patents earlier in January for open-source use and a pledge by Linux seller Red Hat to permit all its patents to be used in open-source software. The potential of such moves is that there could be a freely usable pool of patents to match the freely usable software itself.

Sun’s messages
It’s not surprising that there’s been confusion.

Sun itself has given mixed messages. Sun President Jonathan Schwartz said in November, “It is not our intent to say, ‘Here is our intellectual property and we’ll sue you.'” A company representative said Tuesday that Sun wouldn’t sue Linux users for using the patents.