THE Journal

THE SLOW PACE OF K-12 adoption of open technologies can probably be attributed primarily to concerns about how well they are supported. Another factor may be the unsettled nature of the software patent question. Microsoft, for example, has claimed that the Linux operating system and related open source software infringes on about 235 of its patents. Although that claim has been widely rejected in the open source community, concerns about potential patent problems down the road do find their way into the "cons" category when schools consider adopting open source software.

Recently, Microsoft has begun signing cross-licensing agreements with some Linux vendors to provide so-called patent covenants—essentially, agreements not to sue each other's customers over potential patent infringements. These agreements are part of a broader interoperability proposition for Microsoft's customers, says industry analyst and longtime Microsoft watcher Neil Macehiter. "Given the heterogeneity of most IT environments today," Macehiter says, "people are looking for greater interoperability, particularly with respect to open source. Microsoft is sending a message to customers that it understands the reality of their environments and is doing its best by them to reduce their concerns about the risks of Linux infringing on Microsoft's intellectual property and being sued."

However, Bruce Perens, the primary author of "The Open Source Definition," which is considered the manifesto of the open source movement, and co-founder of the Open Source Initiative, expects these deals to have little impact on open source adoption. "I don't see customers in a rush to get this kind of protection," he says. "I don't believe they perceive much of a risk, and I think they're right about that."

Perens points out that Microsoft has yet to make a single infringement claim. Why? He suspects that it's too late. He cites a legal doctrine known as "laches," under which a patent holder who becomes aware of an infringement cannot delay enforcement until the market is larger and would bring greater royalties. "I think Microsoft has simply waited too long," Perens says.