There are primarily two sources of patent attacks: 1) Competitors suing to obtain royalties or stop competition, and 2) Patent trolls suing to obtain money. The patent troll can come in the form of a company that has decided to augment its business with patent licensing or in the more traditional form of an entity whose primary business is patent suits and licensing for profit. The open-source and free software communities' biggest threats are the lawsuits from competitors aiming to stop the proliferation of open-source software. Patent trolls are typically less interested in open-source developers and projects, because only minimal amounts of money are available given the low revenue of most open-source projects.

Competitors to open-source projects, however, may be very interested in stopping or hindering the development and adoption of free or open-source software. In addition to suing companies utilizing open-source software, it is not inconceivable that an individual developer might inadvertently infringe a patent, widely distribute the code on the Internet, and ultimately be held personally liable for tremendous damages by the patent owner. Such a tactic might be viewed as a strong deterrent to continued free or open-source development.

Though filing patents may seem counter to the mindset of free and open software, the open-source community can model what many commercial companies have learned is a necessary task and develop its own defensive patent portfolio. If individual open-source developers begin to patent their inventions, and if these patents are assigned to a nonprofit institution with an appropriate charter, the broader open-source community could draw from this patent pool to create an arsenal for legal battles. This defensive patent portfolio would be an effective deterrent, creating a cold war truce.

Dean Drako is co-founder, president and CEO of Barracuda Networks. Dean is responsible for overall corporate strategic direction and product development. Prior to founding Barracuda Networks in 2002, Dean was founder, president and CEO of Velosel Corporation, where he successfully closed two rounds of venture financing. Dean hired his replacement so he could pursue his battle against spam at Barracuda Networks. Prior to Velosel, Dean founded Boldfish, a leading provider of enterprise messaging solutions that was acquired by Siebel Systems in 2003. Before Boldfish, Dean was founder, president and CEO of Design Acceleration, Inc. (DAI), maker of superior design analysis and verification tools, which was acquired by Cadence Design Systems in 1998. He has served as an entrepreneur in residence for SoftBank Venture Capital as well as vice president of product engineering at the 3DO Company. Dean holds a B.S. in Electrical Engineering from the University of Michigan, Ann Arbor and M.S. in Electrical Engineering from the University of California, Berkeley.