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Open Source Patents Software Linux

Law Professors Developing Patent License For FOSS 41

Posted by Soulskill
from the necessary-evil dept.
Julie188 writes with this quote from a Networkworld article: "Two law professors from UC Berkeley have come up with a novel idea to protect open source developers from patent bullies. They call it the Defensive Patent License. They hope the DPL can address the objections FOSS developers have with patents the way the GPL addressed them for copyright. The DPL is similar to the concept of a defensive patent pool, but is not the same. The DPL is a bit more radical. It requires a bigger commitment from its members than the typical toe-in-the-water kind of pool, says Jason Schultz, former staff attorney at the Electronic Frontier Foundation. 'The perception is that bigger companies only commit their least-effective, least-important patents to a patent pool,' he says. Schultz isn't pointing fingers at any particular pool. However critics of IBM's open source patent pledge often said it didn't cover the patents most relevant to the FOSS community."
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Law Professors Developing Patent License For FOSS

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  • Sounds familiar (Score:3, Interesting)

    by Palestrina (715471) * on Friday May 07, 2010 @04:10PM (#32133208) Homepage

    At first glance this sounds somewhat like what happens when a company joins a standards committee, for those organizations that develop open standards, e.g., W3C, OASIS, etc. Patents controlled by members that are necessary to implement the standard are made available to implementers of the standards (whether a member or not). I actually think this is preferable to this DPL idea. On the on hand, open standards protect all implementers of the standard, not just the smaller number of those who actually write the standard. Second, by being more targeted to a specific technological areas, you actually see big companies, e.g., IBM, Google, Microsoft, etc., participate in standards development.

    But what big company will contribute ALL of their patents to a pool, not even limited by technological area? Good luck with that. Maybe you'll get some small companies, but it will have the same impact as when Trinidad signed the Nuclear Nonproliferation Treaty.

    In any case I think FOSS needs to always keep in mind that coming together to create a standard behind your technology is a great way to set it strengthen it from the IP perspective. Most companies with patent portfolios know how to get involved with open standards.

  • by Jurily (900488) <jurily@@@gmail...com> on Friday May 07, 2010 @04:35PM (#32133334)

    Microsoft [opensource.org], of all places may have stumbled upon magic open source patent protection:

    (B) If you bring a patent claim against any contributor over patents that you claim are infringed by the software, your patent license from such contributor to the software ends automatically.

    Any comments on what might happen if we change the wording from patents and claims affecting said software to all software patents held by the contributor? Get IBM to contribute one line of code in your project, and happily ever after, or would it lead to Global Thermopatent War?

  • by houbysoft (1367005) on Friday May 07, 2010 @08:13PM (#32134924)
    Of course they are. However, there is a real need to protect open source software from patent lawsuits. Therefore, I believe this is completely appropriate. In court, nobody's going to care what you or Richard Stallman think. Software patents exist, so live with that and protect from it, until they are abolished.
  • by Doc Ruby (173196) on Saturday May 08, 2010 @12:06AM (#32136466) Homepage Journal

    Putting the invention in the public domain by publishing it with the statement "this invention is in the public domain" does everything these "defensive patents" claim to do. It does that without lawyers, without costs, without any doubt that the invention cannot be made a synthetic government-enforced monopoly ("patent").

    Defensive patents are a scam. They are a way to reserve the right to stop someone else from making the invention. The public domain is what they'd do, if they weren't scamming.

  • by Anonymous Coward on Saturday May 08, 2010 @05:55AM (#32137522)

    Well, until we can get rid of them (hopefully soon), they exist.

    Why shouldn't we protect ourselves from them?

  • Not GPL compatible (Score:5, Interesting)

    by janwedekind (778872) on Saturday May 08, 2010 @06:33AM (#32137614) Homepage

    The GPL already contains a clause which requires the distributor of GPL software to grant a non-exclusive, royalty-free, world-wide patent license.
    The article however suggests some kind of club where members use their patents defensively against non-members. That's not going to be effective unless you restrict membership. But I don't see how you can restrict membership without starting to discriminate users and developers of the software.

  • by zotz (3951) on Saturday May 08, 2010 @07:13AM (#32137730) Homepage Journal

    Unless I missed something in the reading, it needs this improvement at least.

    All patents in the pool are granted, royalty free for use by all Free Software, whether produced by members of the pool or not if the non-members have no patents. (Or perhaps just to copyleft Free Software? if needed to block gaming the system by patent holders who will not join.)

    I need to think on this some more.

    all the best,

    drew

  • by deblau (68023) <slashdot.25.flickboy@spamgourmet.com> on Saturday May 08, 2010 @11:31AM (#32139420) Journal

    Disclaimer: I'm a patent attorney. I'm not your patent attorney, and this is not legal advice, yadda yadda.

    To get the protection of the DPL, a new member has to give up all of their own patents for free use by the group, right? So who stands to gain the most from joining? Businesses with no patents at all, or those with the most worthless patents (in case you need at least one patent as a membership requirement).

    Say I want to be protected from being sued and I have a single, worthless patent (this one [google.com] for swinging on a swing comes to mind). Let's go through the list of requirements in TFA:

    1. Members of the DPL would make a business decision that they are obtaining patents strictly for defensive purposes and not because they want to sell licenses or go on the offensive with lawsuits.

    I'm not looking to sue anyone for having fun, but I do want access to lots of free and actually useful ideas, and to be protected from a lawsuit for ripping off those ideas.

    2. Members of the DPL contribute all of their patents in their patent portfolio - they don't pick and choose (and this is what differentiates it from other defensive patent pools).

    Awesome, the DPL can have my useless patent. Have fun enforcing it!

    3. Members of the DPL allow all other members to use its patents without royalty and without fear of patent infringement lawsuits from other members as long as a member does not file offensive lawsuits or remove their patents from the DPL.

    I always wanted to get some of $BIG_PLAYER's market share, but to do that I needed access to their patented technology. Now they are contractually obligated to let me use it, royalty-free, and they can't sue me for starting a competing business. Sweet!

    4. Members may choose to leave the DPL but cannot revoke the royalty-free license from members who used it during the time the company was a member.

    Damn, I can't start charging people for swinging on swings. Well, at least those DPL guys at any rate. I'll be crying all the way to the bank.

    5. Members that join after a company leaves would not have royalty-free access to a former member's patent portfolio.

    I better hurry and join up before the big players figure out what's going on!

    6. The royalty-free cross licensing applies only to members of the DPL. Members are free to pursue royalties or lawsuits with companies outside the DPL.

    I don't want to sue anyone based on my patent. If you want to sue me, I'm now protected. DPL guys (and especially my competitors): U Can't Touch This.

    The DPL will be a race to the bottom, with the companies that contribute the most worthless patents "winning", and the big boys laughing because the DPL is soaking up all the patents that don't matter. The obvious problem is that there's no gatekeeper of value. The big players will avoid this like the plague, since it provides them very little upside.

    The only way any big players will go near this is if everyone puts some real skin in the game. For example, the DPL could add a mechanism for denying an applicant based on the market value of its patent portfolio, or require a minimum applicant market cap, or a large application fee that gets spread around, etc. In that case, prepare for the inevitable "old boy's club" mentality to set in, and the epic nerdrage (and Slashdot outcry) when a small applicant is denied because their ideas aren't "valuable" enough or they are too small and can't afford the application fee.

    In the meantime, it stratifies the patent owners into the haves, the have-nots (i.e. the DPL), and the undecideds. If you were undecided on joining the DPL, would you want the stigma of being associated with, say, me and my patent for swinging on a swing? Or would you rather risk the status quo?

    Keep trying guys. It's a good thought, but it needs a lot more work.

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