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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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  • by _|()|\| (159991) on Friday May 07, 2010 @04:02PM (#32133170)
    The League for Programming Freedom advocated something like this in 1994: "Mutual Defense Against Software Patents [mit.edu]."
    • Re: (Score:3, Interesting)

      by Jurily (900488)

      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 Jurily (900488)

        On second thought, just imagine Ballmers face when he finds out it was their FUD-spreading, SCO-funding, competitor-buying ideas that brought True Freedom to software.

        I think it's worth any fallout.

  • I for one welcome our lawyer overlor......no....hang on, that's not right. Ethical lawyers? Wow....good for them. I feel like my universe has shifted ever so slightly for the better...?
  • 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.

  • ...against patent trolls.
  • Seriously, you can make a license as "committed" as you want - that is the easy part. The problem is getting enough value to use that license, for example the GPL has long passed critical mass but very many other licenses have not. It might be a "good" license and yet ultimately irrelevant.

  • 1) Evil Corp creates an independent organization, but run by the same people, called Evil Shell Corp
    2) All Evil Corp employees working on IP are fired and rehired by Evil Shell Corp, with "work-for-hire" clauses now with Evil Shell Corp
    3) Evil Shell Corp agrees to license all patents to Evil Corp for zero royalties
    4) Evil Corp joins DPL, and gains all the benefits of being in the pool while Evil Shell Corp can pursue whatever patent trolling action it wants

  • by Corbet (5379) on Friday May 07, 2010 @05:45PM (#32133640) Homepage
    I, too, was at that conference; my LWN article about it [lwn.net] has been up for a week now.
  • Given the ubiquity of GPL'd code these days, add a clause to the GPL:

    "you're only allowed to use this software if you don't enforce patents against open source software"

    • by selven (1556643)

      You do realize that one of the four freedoms is an unconditional right to use the software, right? Infringing freedoms to protect them kind of defeats the whole purpose.

  • by 3seas (184403) on Friday May 07, 2010 @06:34PM (#32133960) Journal

    .. so this effort is nothing more than to sabotage the honesty stand against software patents due to software not being of patent-able matter.

    I'm absolutely certain Richard Stallman would agree.

    Software is provably not patentable. [abstractionphysics.net]

    • Re: (Score:2, Interesting)

      by houbysoft (1367005)
      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 Anonymous Coward

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

      Why shouldn't we protect ourselves from them?

  • 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.

    • You have to be able prove before court that you published that. Would an upload to Internet Archive do it? I'm not completely sure.

    • by gozu (541069)

      I think the idea is to make it mandatory that any company that joins the DPL has to allow all its existing patents to be used by other DPL members.

  • There are plenty of people who espouse the view that patent protection is simply a tool for big business to flex its muscle and block access to innovation by small players and competitors. However, the underlying rationale of patent protection is to force an invention onto the public record. Sure, the patent owner gets a monopoly but it is limited for a specific period of time (very limited if you compare it to the monopoly a copyright owner gets) and after that it is free for all to use – down to th
    • Re: (Score:3, Informative)

      by grahammm (9083) *

      But why should a patent be necessary for that? Open Source software, by definition, puts the invention on public record - in considerably more detail and without the obfuscation present in patent claims. Patents are supposed to be for the benefit of 'practitioners in the art', but are in practice written by lawyers in a language foreign to the engineers and inventors. The publishing of the source should satisfy the requirements of 'prior art' so would block anyone from subsequently patenting it. So publis

  • TFA really lacks depth. There is no thorough critical evaluation of the needs for a patent license, examination of the patent co-operation between proprietary software vendors and the impact it has on the market, the virtues and pitfalls of GPL v3 etc.

    There is no evaluation of why anyone would want to join a DPL alliance, whether they are a whale or a minnow. No corporation will give up its rights, assets and advantages without very compelling reasons. You could try it with universities, but they again s

  • 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.

    • 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).

      Some ideas clearly are a good match for each other. So, what if...
      - an entry requirement into a DPL is a patent that the existing members in the DPL agree would be good to introduce, because it would strengthen the complete suite of patents?
      - a scoring system is introduced to allow more "generous" members greater control over the direction of the DPL and a greater portion of the potential profits to the DPL itself (such as licence fees for using the patents in the DPL)?
      - DPL's allowed other businesses

  • While the DPL is still work-in-progress, I've posted this preliminary analysis [blogspot.com] of its possibilities and limitations. It remains to be seen if it offers a compelling reason for anyone to join.

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