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Law Professors Developing Patent License For FOSS
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."
The League for Programming Freedom advocated something like this in 1994: "Mutual Defense Against Software Patents."
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...?
Please consider this account deleted, I just can't be bothered with the spam anymore.
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.
Live today, because you never know what tomorrow brings
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
I for one throw my support behind "no software patents." To support this plan would be hypocritical.
Gary Dunn
Open Slate Project
I, too, was at that conference; my LWN article about it has been up for a week now.
Jonathan Corbet, LWN.net
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"
.. 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.
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.
--
make install -not war
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 the very last detail. In fact, you can’t get a patent unless you put in the detail. So the patent databases in reality form the largest standardised library in the worldpublicly accessible (no paywall / subscription fees) and reliable (at least in relation to granted or issued patents). Why should the open source community consider patenting? Getting a patent for an invention blocks another party from getting a patent for the same invention. So, if a group of open source collaborators can secure a patent, it can choose to grant a royalty-free licence to the open source community to use it (just as open source software is licensed). This secures the invention for public use immediately. In other words, it blocks the ability for another party to patent that invention and prevents that other party from exploiting it for commercial gain. Check mate. Secondly, it secures the open source community the right to continue using the patented invention subject to the terms of the patent licence. A term of the licence may be that any modifications, enhancements or improvements are owned by the (open source) patent owner, thereby retaining all enhancements for public use. Thirdly, open source patented innovations reside on patent databases and thus form part of the same public record, which makes the public record more comprehensive and useful to the community at large. For more see http://bit.ly/dwJqE3 & http://1p.com.au/
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 subsist on funding through joint development projects and licensing to corporations.
Lastly, why do we keep on seeing so many articles linked from Network World? I have returned to slashdot after a long time, and I don't remember hearing much about them some years back. I must say that I am no fan of the quality of their stories I have seen so far.
Chat with other atheists http://secularchat.org
Patents should be thrown out the window with the rest of the trash. This is just a case of lawyers finding yet more ways to earn a good living off the backs of everyone else.
Well, until we can get rid of them (hopefully soon), they exist.
Why shouldn't we protect ourselves from them?
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.
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
FreeMusicPush If you want to see more Free Music made, listen to Free
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 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.
This post expresses my opinion, not that of my employer. And yes, IAAL.
+1
I'd like to hear what companies and individuals are doing to stop software patents and hopefully severely cripple the USPTO as a whole, though I won't get my hopes up for the latter, but the entire thing could use obliteration or revamp.
I think what is more important though is that for individuals, it's irrelevant any way. No one can stop the sharing of information between individuals and that will apply even more strongly with patents as the Maker movement really gets going and home fabricators become more common. It's sad that businesses can't also join in all that due to the money they have painting targets on themselves because of those laws.
Why must so many laws do the exact opposite of helping the world advance as a whole? Oh yeah, so the few can profit..
Promote true freedom - support standards and interoperability.
While the DPL is still work-in-progress, I've posted this preliminary analysis of its possibilities and limitations. It remains to be seen if it offers a compelling reason for anyone to join.
Like it or not, I think patent pools are a progressive measure that will only gain in popularity in the near future, particularly as the benefits of such arrangements become increasingly apparent. Of course, as with any system, patent pools have flaws that will have to be addressed, particularly at the beginning. But overall, I think that they're a great option, and present a potential net benefit for the area of patent law.