Defensive Software Patents for Open Source Projects?

jqh1 asks: "I'm the "inventor" of spamgourmet, a fairly un-obvious approach to spam prevention through auto-create/expire email addresses. I'm fully committed to keeping the software free for all to use. Recently, I've seen other 'patent pending' disposable email address services that are not immediately forthcoming about their own processes. I don't have the time or resources to monitor and challenge patent applications, but I'm afraid that if I ignore them, I'll regret it. Should I seek patent protection for this open source software? If so, is there a way to do it without losing all semblance of an open source project?"

Comments

Licence

[mirabilos]

You could licence it freely and place a remark in
your licence that you waive your patent rights.
IANAL, nor am I an Englishman, but I've already
thought about this.

Patents costs lots of money to keep.

[Xner]

If you are going to license indiscriminately, there's not much use in patenting. Consider simply registering your method with a notary or similar. Then when you get challenged for patent infringement you can use your notarized testimony as prior art.

On the other hand, you might just as well go all the way and write a license that includes instant termination upon litigation. This is usually frowned upon in open source circles, but it is commonly used in industry to defend against suits and promote cross-licensing.

Get a patent

[MacAndrew]

Get a patent, and the worst you could just give anyone who wanted to use it a free license. Use the same theory as the GPL people do -- use a restrictive intellectual property rights power, in their case copyright, to prevent others from commercializing your work product. Their "copyleft" is merely copyright with unusual provisions, and if you look at their license you'll see the word copyright a dozen times. Perhaps a self-contained license for your patent could also be written and enforced -- ask for advice from the GPL project.

I am not an IP lawyer, nor practicing law here, so absolutely do consult with a specialist. In the state, many lawyers participate in free or nominal fee 30-minute consultations. One hitch it that to actually obtain a patent may cost several hundred dollars (quid) for which you might solicit user donations. Set aside a little for enforcement; the GPL people have lawyers, too.

And, no, getting a patent is not crossing over to the dark side. :)

Maybe a role and source of funds for the EFF/GNU?

[Zocalo]

I've been thinking about this for a while as well. There are plenty of open source projects that are highly innovative, producing patentable methods that any self respecting corporate IP lawyer would be drooling all over. It doesn't matter that software patents are a bad idea, they are here and are probably not going to go away, so we might as well start to fight the system from within.

In the corporate world, patents are usually held and owned by the company for whom the actually inventor works, not the inventor themselves. For many freelance open source developers working without the umbrella of a corporate master, why not make that company the EFF or GNU for example? The admin of the patent, and any licensing fees (only chargeable for commercial products of course), goes to the EFF/GNU, maybe with a percentage to the original innovator.

If nothing else, the sheer irony of seeing the likes of Microsoft indirectly funding the development of Linux because some spotty geek happened to invent something first would make it all worth while. ;)

Publice

[heikkile]

Make your algorithms public (in a way that can be proven - any lawyer tell the best way). Then you have prior art that can invalidate any patent that attempts to prevent this use. Much easier and cheaper than applying for a patent yourself. Just have to do it right - consult a patent lawyer anyway.

Shared/Open patents

[oliverthered]

Like a lot of tech industries do, you could barter with patents.
Here's the deal,
Some OSS peeps form a Open Patent group,
The patents can be used freely for free(GPL) software or freely by a company if they submit patents to the group.

Everyone else has to pay to use the patents.

GPL is important here because a company could just ripoff some BSD software that implemented a patented algo.

Truly defensive patent

[Mulligan]

1. Get patent. If you don't want to deal with steps 2 and 3, assign administration of it to someone who will. (A Free IP Foundation [FIPF?] would be ideal here.)
2. License it under Intellectual Property GPL (see below).
3. Don't profit. (This is, after all an open source business model.)

Intellectual Property GPL [IP-GPL] (Proposed)

1. License author INAL

   Any serious use of this license should be accompanied by a written admission that the patent owner is behaving moronically.

2. The patent in question is licensed for free usage by any binary distributed with a legal copy of all sources or a promise to provide those sources similar to that found in the GPL.

   This license does not follow copies of the binary if they are provided without full sources as stipulated by this item, even if such copies are permitted by the code license. All entities using or distributing such a release are in violation of this license

3. The owner of the patent in question offers free limited time licenses to any Non-Open Source Entity [NOSE] willing to release patents under clause 2 of this license.

   The intent here is to prevent the NOSE from using their patents offensively against open source projects. The time is limited so that the FIPF can re-assess whether the NOSE has begun to use patents against the open source community. This also allows a NOSE to negotiate a patent swap for some of their technology without giving up all patents, while the FIPF retains the right to re-evaluate whether the NOSE has begun behaving badly.

Re:Intellectual Property 101

[jqh1]

As chance would have it, IAL, (I'm the one who Asked Slashdot) although not I'm not a patent attorney.

I'm reasonably familiar with IP law, and the high quality of the discussion here makes me wish I had laid out my concerns with more precision.

I think everyone has outlined the driving issues: certainly one of them is that I'm looking for the least-cost alternative that will enable the software to proliferate without interruption, and without FUD for me and for those who use it.

I'm willing to file the patent application myself (pro se), even though it may result in several iterations with the PTO due to my ignorance of the finer points of filing. Additionally, I'm really not at all concerned with the quality of the patent as regards my ability to prevent others from using the technology (because, of course, I want them to!).

Based on my own litigation experience (and fees) I think it's easy to say that, if getting the patent prevents the patent office from issuing a conflicting patent (and therefore keeps me out of court), it's bound to be cheaper. Picture yourself sitting in Texas (or the locale of your choice), and getting served for a lawsuit that is proceeding in New York or San Francisco (or the other locale of your choice). May as well get out your check book right away...

I'd be interested to know whether release on SourceForge would count as publication (and therefore defensive publication) - the software has been available there for quite awhile now. I suppose I'm the one to do the research on this one...

Thanks everyone!