Open Source — the Last Patent Defense?

dp619 writes "A developer might fly under the patent troll radar until she makes it big, and then it's usually open season. Apple just shared that it has faced off 92 lawsuits over just 3 years. Even Google's ad business is at risk. FOSS attorney Heather Meeker has blogged at the Outercurve Foundation on what to consider and what to learn if you're ever sued for patent infringement. 'There have been at least two cases where defendants have successfully used open source license enforcement as a defensive tactic in a patent lawsuit. ... In both these cases, the patent plaintiff was using open source software of the defendant, and the patent defendant discovered a violation of the applicable open source license that it used to turn the tables on the plaintiff. In this way, open source license enforcement can be a substitute for a more traditional retaliatory patent claim.' Meeker also examines how provisions of open source licenses can deflate a patent troll's litigation and shift the balance in favor of the defense."

Comments

What's the problem?

[DoofusOfDeath]

Apple just shared that it has faced off 92 lawsuits over just 3 years. Even Google's ad business is at risk

So far I like what I'm hearing. Why mess with a good thing?

Re:What's the problem?

[rmdingler]

It sounds less ominous when the deep-pocketed are being annoyed by a shake-down artist,

but these bottom-feeders are the modern day equivalent of slip and fall con men.

They wind up adding cost to everything these giants do, which will trickle down to the end consumer.

Re:What's the problem?

[DoofusOfDeath]

It sounds less ominous when the deep-pocketed are being annoyed by a shake-down artist,
but these bottom-feeders are the modern day equivalent of slip and fall con men

It's not their deep pockets that I think makes this situation... appealing? I'm not sure what the right word is here. It's something like Schadenfreude.

What I like about this is that companies which obtained software patents, a direct attack on the freedom of programmers everywhere, are themselves being attacked with software patents.

I grudgingly accept that narrowly defined software patents are no more or less immoral than non-software patents. But AFAIK Google, Apple, and about every other company out there has sought software patents that are as wide as possible. For that, I delight in their current suffering.

Re:What's the problem?

[StripedCow]

Because we want more ads! That's why!

Re:What's the problem?

[KingOfBLASH]

It's not a good thing. The patent system is broken. And although you might dislike the targets of the litigation that doesn't mean that society as a whole isn't hurt that these sorts of shenanigans are allowed.

Re:What's the problem?

[DoofusOfDeath]

It's not a good thing. The patent system is broken. And although you might dislike the targets of the litigation that doesn't mean that society as a whole isn't hurt that these sorts of shenanigans are allowed.

I agree, but I see these shenanigans as a potential agitation for changing the very broken status quo.

Of course, it's possible and even perhaps likely that any shakeup will change things in favor of large corporations, given our completely sold-out Congress. So all of my hopes in this area are covered with a bitter layer of unease and contempt.

Dang this topic depresses me.

Re:What's the problem?

[vettemph]

- The patent system was created so the deep pocketed could halt the progress of the shallow pocketed.
- The cost will always trickle down to the consumer.

Just look at the cost per internet bandwidth in the U.S. vs many other developed countries. If you have an extra penny, the rich will find a way to take it from you. How else can the top 1% have 80% of the money.

Re:What's the problem?

[brianwski]

> companies which obtained software patents, a direct attack
> on the freedom of programmers everywhere

Obtaining patents is not a direct attack, initiating a lawsuit using patents is the aggression step.

At every large company I worked at (Apple, HP, SGI) they told us to help patent "stuff" as a defensive measure. I don't see anything wrong with accepting we live in an imperfect world where somebody very evil might threaten us and try to shut us down for evil reasons. So you build big tall walls and stock supplies and gunpowder hoping to never use them.

Patent TROLLS are the aggressors, do you blame these companies for planning ahead and preparing to defend themselves from bullies?

Re:What's the problem?

[Anonymous Coward]

Patent trolls aren't really a threat unless you are a public company or are trying to become one (especially IPO).

The fact is, there are very effective and cheap ways to defend against frivolous lawsuits through conveyances and debt shielding, when you are organized as a PRIVATE company. You can then default on the patent troll (or whatever lawsuit jerkoff) lawsuit, and leave the patent troll "winning" nothing more than an empty shell company, or even better, force them to assume the debts of the old shell company (requires some effort, but it's hilarious and worth it). Hell, I've defaulted on lawsuits and had the patent troll put a lien and seize brownfield property that REQUIRED million dollar cleanup by the owner. Yup, I was laughing my ass off when the patent troll took that one off my hands in their "victory". HAHAHAHAAHAHHAHAHAHHHA

Re:What's the problem?

[CurryCamel]

At every large company I worked at (Apple, HP, SGI) they told us to help patent "stuff" as a defensive measure.

Patent TROLLS are the aggressors, do you blame these companies for planning ahead and preparing to defend themselves from bullies?

https://www.apple.com/pr/library/2010/03/02Apple-Sues-HTC-for-Patent-Infringement.html
http://www8.hp.com/us/en/hp-news/press-release.html?id=460106&jumpid=reg_r1002_usen_c-001_title_r0001#.Uvu1ptgvA9Y
http://www8.hp.com/us/en/hp-news/press-release.html?id=170196#.Uvu1XNgvA9Y
http://slashdot.org/story/06/10/25/1226209/sgi-sues-ati-for-patent-infringement

An offence is, it is said, the best defence...

Re:What's the problem?

[Anonymous Coward]

Hell, I've defaulted on lawsuits and had the patent troll put a lien and seize brownfield property that REQUIRED million dollar cleanup by the owner.

That, sir, is totally awesome.

Re:What's the problem?

[wumbler]

Patent TROLLS are the aggressors, do you blame these companies
for planning ahead and preparing to defend themselves from bullies?

That misses the point!

Patents can be used only to stop someone else from producing a widget that violates your patent. However, patent TROLLS (almost by definition) don't produce anything, they just sue companies that DO produce stuff. Therefore, your own patents can never be used defensively against a patent troll: As non-producing companies they are definitely not violating your patents.

You can only use your own patents to defend yourself against a company that actually produces something. Maybe some of their products violate some of your patents. You can then cross license, or at least tell them to go away before you start a counter suit.

However, trolls don't have products and therefore don't offer any surface against which to launch a counter attack.

Re:What's the problem?

[wumbler]

Patent trolls aren't really a threat unless you are a public company or are trying to become one (especially IPO).

I don't know about that.

Especially smaller companies (even private ones) are at risks, since they are perceived as less willing to fight back: They don't have the deep pockets or well-staffed legal departments that larger companies have. Even small mom and pop shops have been the recipient of shake-down letters from patent trolls, offering some 'license fees' that are just low enough to be cheaper than an all out lawsuit.

This is the part where Open Source takes over

[LF11]

I am enjoying seeing this drama play out. I didn't see this coming, but it is fun to watch.

Re:This is the part where Open Source takes over

[Anonymous Coward]

This is the part where Open Source takes over

It's happening faster than you think.

The Open Source version of Android (AOSP) not only competed, but grew much faster than the Google version (137% year-on-year). In fact, Google's Android comprised 52% of the estimated one billion devices shipped, while AOSP reached 25% of the market, ahead of Apple's 18%.

Most of AOSP's growth is in China, India, and adjacent markets, possibly because Google does not offer its Play Store in those regions, however the Open Source version looks set to take a big step into other markets when Nokia's Android-based Normandy phone is released later this month.

Re:This is the part where Open Source takes over

[tomhath]

Open Source and patents are entirely different subjects.

Re:This is the part where Open Source takes over

[LF11]

True, but they are both being utilized in these legal wars. Open source is being used as a tool to end patent disputes. I like it.

Re:This is the part where Open Source takes over

[Anonymous Coward]

This has absolutely nothing to do with Open Source Licenses. At best you could make the argument that Apache License or GPLv3 hurts open source software developers by not having their software adopted or contributed to, entirely to avoid the patent clauses in question.

Android grows because it's cheap, and thus can be put on cheap, poorly built devices. If Android didn't exist, Nokia would undoubtly have that market share, with HTC, Motorola, Samsung and LG still producing crappy phones.based on Symbian as they were doing before Android.

Open source doesn't take over, open source just replaces proprietary inferior solutions. Blender has not replaced 3D Studio, TheGimp hasn't replaced Photoshop. LLVM replaced GCC because LLVM has a superior license allowing it to be shipped with products regardless of license (hence why it's in FreeBSD and OS X.) I predict we will see more products dropping GPL-style licenses and switching to BSD because it's less politically charged.

In the case of LLVM you're not allowed to contribute patented code unless you expressly grant a license to said patent to LLVM, it's developers, users and any products it's used in.

Compare this with Samsung (who earns the name Samescum) for suing companies that they exactly said patent agreements with. Samsung contributed standards-essential patents (not unlike RAMBUS) and received a gut-punch for it. You can blame Nokia for kicking off the Smartphone patent wars in 2009 or so, as then everyone was sueing everyone else, with Microsoft getting most of the benefits (royalties on Android.)

Re:This is the part where Open Source takes over

[leuk_he]

RTFA please. If the attacker illegally uses the open source that has a patent clause, or the attacker contributed to software the license can have a considerable impact.

Re:This is the part where Open Source takes over

[jmcvetta]

GPLv3 hurts open source software developers by not having their software adopted or contributed to, entirely to avoid the patent clauses in question.

Funny.. I maintain a few small, GPLv3-licensed libraries. Every few months I receive a request from some random douche asking me to weaken the license to BSD or similar. How many of these requests come from people who have submitted Pull Requests, or at least filed some useful Issues? None, zero, nada, zilch. Just a bunch of opportunists hoping to enclose some Free Software for their own profit.

Re:This is the part where Open Source takes over

[Anonymous Coward]

Funny.. I maintain a few small, GPLv3-licensed libraries. Every few months I receive a request from some random douche asking me to weaken the license to BSD or similar. How many of these requests come from people who have submitted Pull Requests, or at least filed some useful Issues? None, zero, nada, zilch. Just a bunch of opportunists hoping to enclose some Free Software for their own profit.

Has anyone ever asked you to do some form of dual-licensing so that they could reimburse you for access to the code in a non-GPL form, similar to how Qt works? That's the route I'd take if I wanted to use the code for a closed-source project.

I'm not a greedy sociopath that thinks everything should be free for me while I charge everybody else for what I make with it, though.

Re:This is the part where Open Source takes over

[Anonymous Coward]

Chicken and egg.

I'm not going to waste my time with a GPL library that I can't use, so there's no way you're going to see a pull request or submitted issues from me. You're not going to bother weakening the license because I haven't submitted any pull requests or issues. Meanwhile, I'm busy contributing to all the other MIT, Apache, BSD etc. libraries.

Re:This is the part where Open Source takes over

[gerddie]

I'm not going to waste my time with a GPL library that I can't use.

So why is it that you can't use these GPL libraries?

bring back the new slashdot!!

[Anonymous Coward]

i preferred it!

Open source enforcement as a defensive tactic

[Anonymous Coward]

... against Beta.

Re:Open source enforcement as a defensive tactic

[Anonymous Coward]

Lawsuits are a very bad idea when wanting to have users and site owners work together

no troll defence here

[gbjbaanb]

In these cases, the patent holder sues an OSS developer and it turns out that the patented produce contained source from the defending code.

Defence then either says "ha, but the licence you accepted when you took our code contains a patent licence grant" (eg Apache licence) and therefore the defence is legitimately licenced to use the patent, or says "ha, you used our code illegally, cease and desist selling your product".

Trolls don't tend to actually have products, so this really doesn't apply here.

Re:no troll defence here

[reebmmm]

Spot on. The linked article is ridiculous. The facts of the cases (both Jacobsen v. Katzer and Twin Peaks v. Red Hat) referenced as a use of a OSS license in defense of a patent infringement claim did not involve trolls and did not involve a defense to patent infringement. They had an independent copyright claim.

That's not a "tactic" and it's not reproducible defense. You might as well say, "if you want to defend against patent trolls, you should get a contract with the trolls that they'll breach." Or, "you can defend a patent case, if you catch the patent owner breaking into your house." Your lawyer is going to look for whatever leverage you might have against a troll. Thinking that an OSS license is much of a shield is foolish.

Re:no troll defence here

[Sique]

It's sufficient that you can prove that the troll somewhere uses your open source software. E.g. if their website runs on Apache, they aren't allowed to sue anyone ever contributing to the Apache project, as they agreed in the license not to sue the contributors.

Re:no troll defence here

[reebmmm]

Not true. Not true at all. The Apache 2.0 license doesn't prevent a user of Apache-licensed software from suing. It's a defensive patent clause: it deprives the contributor of patent enforcement rights as it relates to a contribution, but allows them to sue a user for patent infringement if they're sued first. If a troll sues a "Contributor" for patent infringement, then the Contributor can sue the troll. So, a troll could use Apache all day long and sue Contributors all day long without a license violation.

3. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.

Similarly, GPLv3 has a patent license. It affects contributors and distributors, not "users."

11. Patents.
A “contributor” is a copyright holder who authorizes use under this License of the Program or a work on which the Program is based. The work thus licensed is called the contributor's “contributor version”.

A contributor's “essential patent claims” are all patent claims owned or controlled by the contributor, whether already acquired or hereafter acquired, that would be infringed by some manner, permitted by this License, of making, using, or selling its contributor version, but do not include claims that would be infringed only as a consequence of further modification of the contributor version. For purposes of this definition, “control” includes the right to grant patent sublicenses in a manner consistent with the requirements of this License.

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contents of its contributor version.

In the following three paragraphs, a “patent license” is any express agreement or commitment, however denominated, not to enforce a patent (such as an express permission to practice a patent or covenant not to sue for patent infringement). To “grant” such a patent license to a party means to make such an agreement or commitment not to enforce a patent against the party.

If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) arrange to deprive yourself of the benefit of the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. “Knowingly relying” means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient's use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid.

If, pursuant to or in connection with a single transaction or arr

Use GPL and AGPL

[andreicristianpetcu]

Use GPL and AGPL, not that damn BSD

Re:Use GPL and AGPL

[Lennie]

And don't forget you have the option to use LGPL for libraries which, to me, always seems like a better idea than straight GPL or AGPL.

Re:Use GPL and AGPL

[Anonymous Coward]

GPL is fine. I'm not a fan of using EULAs though so AGPL is something I'll stay away from. I think LGPL offers a good balance between Apache2 and GPL.

I really miss Groklaw

[Anonymous Coward]

Groklaw.net was the *best* place to get data about software patent and lawsuit weirdness. PJ's soft, sensible voice explained in calm terms the nature of hte problems, and cheered on people doing their very best for their clients and for quality software. I can just hear PJ's description of this in the few audio recordings of her voice, or in her gentle written style.

Too bad Groklaw was cut off becuase email cannot be considered secure with NSA monitoring. It's still a great historical archive of analysis of patent trolls and intellectual property abuses, such as the infamous SCO patent/copyright/whinge-whing-whinge-pay-us circus against Linux.

"Open Source" is not enough for patents

[Antique Geekmeister]

Few of the open source patents do not address patents. GPLv3, which is a genuinely "free as in speech" license, and the recent Apache icenses, do deal with patents.

The MIT license and most of the BSD licenses *do not* handle patents well. The FreeBSD license, funded now by Apple, now very specifically does *)not* grant patent protection, to protect Apple's patents from encroachment.

Re:"Open Source" is not enough for patents

[tomhath]

I thought they addressed copyright, not patent protection? Can you explain how a GPLv3 license protects me from a patent troll.

Re:"Open Source" is not enough for patents

[Anonymous Coward]

Both Apache2 and GPL have a patent grant, and a patent retaliation clause in them.

2 and 3 clause BSD were created in a time before people thought software patents were a major thing to worry about. One can contribute patented code to a BSD project, wait for it to ship to users and sue everyone, all perfectly legal. Apache2 and GPL address this by requiring patent grants as part of the license.

Re:"Open Source" is not enough for patents

[dkf]

Both Apache2 and GPL have a patent grant, and a patent retaliation clause in them.

But neither really protects against the trolls; trolls work on the principle of shaking you down with the threat of very expensive court action, and there's the risk of having the court decide against you anyway. If the court decides that the troll's patent is valid and applies, the license doesn't get you out of trouble except in the case that it's the troll's own code or that a transferrable license has actually been granted to whoever donated the code and the troll was trying to brush that little fact under the carpet.

There aren't any magical short cuts round legal problems. Just areas that are known to be thorny.

Re:"Open Source" is not enough for patents

[Anonymous Coward]

Kind of like when a content creator releases their works on the Internet, then sues everyone. Ohh, wait, that's fraud. If the owner of a patent releases an implementation in opensource, they have no expectation of it not being used by others.

Re:"Open Source" is not enough for patents

[Antique Geekmeister]

Clear language and being able to refer people to the Apache Foundation or the FSF for clarification on the license has certainly helped _me_, and my clients, deal with patent trolls. It also helps deal with patent fear mongering and corporate lawyers who have not been well educated on these licenses.

Bigger Response Necessary

[Anonymous Coward]

If a couple of defendants have used open source licenses to "turn the tables" then the trolls will quickly clue in and make sure they are clean before filing lawsuits. The open source community needs a must bigger, comprehensive response to patents in general.

One thought would be to put together a team of 20-50 volunteers to review published patent applications and check them against prior art. This would serve two purposes. First is to see that fewer bad patents are issued. Second would be to target companies which abuse patents. If a company gets into the habit of suing open source developers, then suddenly all of their patents and pending applications get a full body cavity search.

Legal powers and invisible guns

[John Allsup]

Legal powers are like invisible guns to peoples' heads, and enforcement is like pulling the trigger. The solution to the problem of guns is not no guns, nor more guns, but possibly fewer guns and an absolute requirement on a lack of egotistical greedy selfish intent in anybody before they're allowed to go near a gun. Human greed and selfishness is the problem, and if we don't fix that, we're fuxked whether or not patent lawsuits are involved.

Re:Legal powers and invisible guns

[bzipitidoo]

In the case of patents and copyrights, no guns does seem like not just a good solution, but ultimately the only solution. Drop the monopoly protection enforced by government fiat through artificial scarcity, and the trolls won't have those weapons. If there aren't any monopolies, there won't be any fights over them. And there won't be any chilling effects from good people bending over backwards to avoid being in one of those fights.

I agree about greed and selfishness. For nearly all of history, we have been able to freely compete to the max, resort to total war, without putting the environment at risk because we were simply unable to do much damage to it. Scorched earth tactics didn't significantly harm prospects of recovery. Raid the neighboring kingdom, kill all the men, and take all the women, food, and loot. Dr. Strangelove's plan for the survival of humanity had that nasty element of personal gain twisting at what little objectivity, sense, and decency the characters still possessed. The Cold War has to be the start of a new way of fighting. Nor can we afford complacency about peacetime activities, not with our growing power to inadvertently wreck the environment. If it isn't, if it was just an aberration and peacetime activity leads to exhaustion of resources and the next world war, and that war reverts to the tradition of unrestricted warfare because the sides are greedy to win it all, then we're doomed. What should that war be called? The Meltdown War?

Re:Legal powers and invisible guns

[Anonymous Coward]

When you're done fixing human nature to eliminate greed and selfishness, can you also fix the laws of physics so we can go faster than light?

A 3-digit UID should understand that if you have to change the input requirements to make a design work, the design is flawed. You don't get to change human nature. Bzzt. Try again.

Re:Legal powers and invisible guns

[idontgno]

In other words, to quote Douglas Adams:

To summarize the summary of the summary: people are a problem.

Re:Legal powers and invisible guns

[jmcvetta]

Human greed and selfishness is the problem, and if we don't fix that, we're fuxked

Strongly disagree. Greed & selfishness are constants throughout history. However, while no legal system is perfect, not all of them are systemically biased to the point of illegitimacy like the current American system.

I put a GPL-based "Nuclear Option" into my patent!

[Jizzbug]

I put boilerplate on the code segment figures licensing them under the GPL, so that if I need to I can apply "any later version" of the GPL which gives a patent grant! ... For the actual patent application the patent lawyers whited-out the GPL boilerplate in the code segment figures, and they added to the text of the patent, "The programs and program segments as shown in FIGS. 28 and 29 are believed to be subject to a GNU General Public License version 2 (GPLv2)." They stipulated a version to avoid triggering "any later version" clause and thusly the patent grant, but I help write the provisional patent application, and I know the boilerplates in the provisional do not specify a version of the GPL! ;)

So I've assigned my patent to a third party, my former employer, but should I ever need to use my own invention, I put a secret patent grant in it for myself.

Re:I put a GPL-based "Nuclear Option" into my pate

[Anonymous Coward]

You should probably go back and read the assignment agreement. In it you likely waived any claim of present or future right to the code, which would negate your "secret" patent grant.

Also, you could be considered to be acting in bad faith, which will not end well for you if they decide to take that tack.

The elephant in the room

[Anonymous Coward]

Patent trolls aren't really a threat unless you are a public company or are trying to become one (especially IPO).

The fact is, there are very effective and cheap ways to defend against frivolous lawsuits through conveyances and debt shielding. You can then default on the patent troll (or whatever lawsuit jerkoff) lawsuit, and leave the patent troll "winning" nothing more than an empty shell company, or even better, force them to assume the debts of the old shell company (requires some effort, but it's hilarious and worth it). Hell, I've defaulted on lawsuits and had the patent troll put a lien and seize brownfield property that REQUIRED million dollar cleanup by the owner. Yup, I was laughing my ass off when the patent troll took that one off my hands in their "victory". HAHAHAHAAHAHHAHAHAHHHA

Re:The elephant in the room

[Anonymous Coward]

LOL, hilarious, the attention whoring, patent troll crisis mongering shriekers are trying to bury my cheap and effective solution to the "unstoppable menace" of patent trolling.

You're not "flying under the radar"

[Anonymous Coward]

"A developer might fly under the patent troll radar until she makes it big, and then it's usually open season"

No. You're always on the radar. It's just more lucrative to sue after a product goes big. A patent troll will never sue a nascent company out of existence; that's what the industry gorillas do. Patent trolls want you to be a huge success. Then they torpedo you.

See, you are trying to distract from easy

[Anonymous Coward]

effective solutions to a manufactured "crisis".

Patent trolls aren't really a threat unless you are a public company or are trying to become one (especially IPO).

The fact is, there are very effective and cheap ways to defend against frivolous lawsuits through conveyances and debt shielding. You can then default on the patent troll (or whatever lawsuit jerkoff) lawsuit, and leave the patent troll "winning" nothing more than an empty shell company, or even better, force them to assume the debts of the old shell company (requires some effort, but it's hilarious and worth it).

Hell, I've defaulted on lawsuits and had the patent troll put a lien and seize brownfield property that REQUIRED million dollar cleanup by the owner. Yup, I was laughing my ass off when the patent troll took that one off my hands in their "victory".