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Fast forward to today, and the world of high technology. Probably the vast majority of patents are granted for very specific aspects of a given field. On their own, they do nothing; to be useful, they must be employed alongside many other patented ideas. But that is only possible if all of the relevant patent-holders agree: if even one element is missing, the machine or process might fail. As technology becomes more complex, it becomes dependent on an increasing number of patent-holders, all of which must license their inventions for the system to function.

This has led to the emergence of what are called “patent thickets”. Here's a good description of the problem from a 2001 paperPDF:

Thoughtful observers are increasingly expressing concerns that our patent (and copyright) system is in fact creating a patent thicket, a dense web of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology. With cumulative innovation and multiple blocking patents, stronger patent rights can have the perverse effect of stifling, not encouraging, innovation.

Patent thickets are probably worst in the world of software, because by its very nature, software is made up of hundreds of smaller components, many of which have been patented in some jurisdictions. Indeed, it is probably the case that it is now impossible to write any moderately complex piece of code without infringing on some patents in those countries. In theory, it would be necessary to obtain licences from all of those patent-holders in order to write that code. In practice that doesn't happen (yet), but we are definitely seeing the deleterious effects of patent thickets.

One domain where this is becoming a serious problem for everyone is in mobile telephony. We now have the situation where Nokia, Apple and HTC are suing each other in various permutations, alleging infringements of their respective patents. That's bad for free software because the Android system – and hence Linux – is caught up in the crossfire. But the threat posed by patent thickets is perhaps most evident in the world of video codecs.

A little while back we had Steve Jobs writing in an email:

All video codecs are covered by patents. A patent pool is being assembled to go after Theora and other "open source" codecs now. Unfortunately, just because something is open source, it doesn't mean or guarantee that it doesn't infringe on others patents. An open standard is different from being royalty free or open source.

Google's recently-announced WebM/VP8 technology was designed in part to address that concern:

A key factor in the web’s success is that its core technologies such as HTML, HTTP, TCP/IP, etc. are open and freely implementable. Though video is also now core to the web experience, there is unfortunately no open and free video format that is on par with the leading commercial choices. To that end, we are excited to introduce WebM, a broadly-backed community effort to develop a world-class media format for the open web.

And yet almost immediately, Larry Horn, CEO of MPEG LA, the consortium that controls the rival - and proprietary - AVC/H.264 video standard said:

in view of the marketplace uncertainties regarding patent licensing needs for such technologies, there have been expressions of interest from the market urging us to facilitate formation of licenses that would address the market’s need for a convenient one-stop marketplace alternative to negotiating separate licenses with individual patent holders in accessing essential patent rights for VP8 as well as other codecs, and we are looking into the prospects of doing so.

This “one-stop marketplace alternative to negotiating separate licenses with individual patent holders”, generally known as a patent pool, is the current approach to dealing with patent thickets. Essentially, it gets everyone whose patents could block a particular technology to agree to a joint licensing deal.

That may be convenient for companies – especially ones that hold one of the patents forming part of the pool – but it's useless for free software, which is confronted by an increasing number of ever-thicker patent thickets. The danger is that these thickets will literally shut free software out of many markets.

Next: Maybe there's a solution

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