10.30.08

Reader’s Proposal for Combating Free Software-hostile Patents

Posted in Free/Libre Software, IBM, Law, Microsoft, Mono, OIN, Patents at 5:01 pm by Dr. Roy Schestowitz

Slashdot seems to have broken the news about CueCat being patented. For those who are not familiar with it, here is the Wikipedia article, which tells an unfortunate story. There is also this bit of analysis that compares patent trolling to car rentals.

I was at an event this morning where the subject of so-called “patent trolls” came up (see also an earlier posting). Trolls are creatures who live under bridges and demand payment from travelers who wish to cross the bridge. Patent trolls are companies and/or individuals who buy patents for the purpose of making money off of infringement claims (rather than for the purpose of marketing/developing the invention). As such, trolls are a subcategory of (and take the organizational form of) the patent holding company. A good example of a patent holding company is Royalty Pharma, which makes its money off of the royalty stream. However, defining a troll, and differentiating it from a holding company, is sometimes tricky.

This brings us to the main subject of this post, which is an idea that our reader Jose has had for defending Free software from patents in general, not just patent trolls (which would be hard). Here it goes.

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What about a license/terms of use/etc where people work on a project or simply contribute to a project (and keep copyrights) under the following condition:

• Anyone can draw up a patent on your contributions (shared authorship probably).
• Such patents will automatically be used so that full rights are granted for X type of project. X might be “all FOSS projects” or “all FOSS projects when used on all-FOSS platforms or all FOSH hardware, etc”.

Basically, I want to try and harvest patent law (the monopolies it provides) for our benefit, perhaps along the lines of something like the GPL.

If we can’t beat patent law, at least leverage it for good cause. The issue is that patents aren’t granted automatically as are copyrights. You have to write them up. If we add *lubrication* as suggested above, we can have legal and patent-minded individuals contribute to the community while those that simply want to code things up and not deal with patents, also go forward.

[Note, US laws gives you one year from time of publishing implementation or whatever... to submit the patent.]

“If we can’t beat patent law, at least leverage it for good cause.”As things are, if we make an “invention” (and don’t patent it), we open it up to the world to use (like BSD), but if Microsoft creates one (and patents it), we can’t use theirs. In both cases, a person stood on shoulders of giants, but only one of these “inventors” allowed others to stand even higher… and it was the nice inventors (FOSS) that ended up with the short end of the stick! That is bad way to reward innovation — a fundamental screw-up of patent law.

Of course, I am all against patents. They go too far (assuming copyrights are just fine themselves), but if we can find a practical way to leverage those PUKE laws, we increase the chances of patents not becoming an obstacle to FOSS.

As an example result, mono could “prove” themselves (or not) based on the patents they draw up. Similarly, patent-controversial projects can pay for themselves (redeem themselves) through patents. The coders don’t even have to be the ones drawing them up.

[Note, for the purposes of this mono example, I'll pretend the patent issue is the only issue.]

Of course, this all stinks — patents do — but might this approach just described have some legs?

The GPLv3 already helps.

The GPL is a compromise. I’d actually like something stronger — like FOSS platforms required in order to use GPL apps.

I am conscience that if the GPLv3 was held back from having more teeth, that maybe what I am suggesting above will also not garner enough support. In fact, maybe what I am suggesting would be but a clause to the GPL.

And to attack patent trolls, say that if you enforce a patent against project X (maybe X needs to be of wide scope… like “any FOSS project”), then that person loses protection from that patent… so if they use any software that could violate one of these FOSSy patents, then they are in trouble (that might be a weakness of trolls today as well except that we FOSS crowd don’t have many patents). In short, something like the OIN protections would be implicit in this sort of FOSS contribution contract but perhaps apply automatically to all FOSS (and not just to Linux).

In short, we can work to accelerate MAD.. we can also make sure we own a bigger stake, to decrease chances of a change in patent laws leaving us behind.

Maybe we don’t need anything beyond what IBM and others contribute. Maybe patents won’t be a real problem for FOSS/business in practice.

Thoughts? █

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