Slashdot Mirror

← Back to Stories (view on slashdot.org)

Open Source — the Last Patent Defense?

Posted by Soulskill on from the distributed-under-the-cover-your-backside-license-v2 dept.

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."

12 of 52 comments (clear)

  1. This is the part where Open Source takes over by LF11 · · Score: 2

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

  2. no troll defence here by gbjbaanb · · Score: 3, Informative

    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.

    1. Re:no troll defence here by reebmmm · · Score: 2

      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.

    2. Re:no troll defence here by reebmmm · · Score: 3, Informative

      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

  3. Re:What's the problem? by rmdingler · · Score: 2
    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.

    --
    Happiness in intelligent people is the rarest thing I know.

    Ernest Hemingway

  4. Re:What's the problem? by StripedCow · · Score: 2

    Because we want more ads! That's why!

    --
    If Pandora's box is destined to be opened, *I* want to be the one to open it.
  5. Re:What's the problem? by KingOfBLASH · · Score: 2

    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.

  6. "Open Source" is not enough for patents by Antique+Geekmeister · · Score: 5, Informative

    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.

    1. Re:"Open Source" is not enough for patents by Anonymous Coward · · Score: 2, Informative

      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.

    2. Re:"Open Source" is not enough for patents by dkf · · Score: 3, Informative

      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.

      --
      "Little does he know, but there is no 'I' in 'Idiot'!"
  7. Re:What's the problem? by vettemph · · Score: 2

    - 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.

    --
    The government which is strong enough to protect you from everything is strong enough to take everything from you.
  8. Re:What's the problem? by CurryCamel · · Score: 2

    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...