Free software and software patents (was Re: the skinny -- a LEGAL *nightmare*)

[Mark Shewmaker]

On Fri, Nov 26, 1999 at 08:37:59PM +0000, Richard Watts wrote:
> 
> On Friday 26 November 1999, Seth David Schoen <schoen at loyalty.org> wrote:
> 
> >I can't think of _any_ open source license which forbids the use of
> >patented algorithms within the source code base.
> 
>  So, the way to address this issue is to get the major patent holders
> to attach warranties to free software projects saying something like
> `we will not enforce any of our patents against open source software'

Actually, that's the sort of thing I'd like to do with the Open Patent
License:  (http://www.openpatents.org/).  Part of the idea is that patents
submitted under Option 1 of the Open Patent License can be incorporated
into any work while that work is distributable under an Open Source license.
(Other options allow the submitted patents to be used under non Open Source
conditions too, but they all require the patent to at least be licensed
for Open Source use.)

(The license, btw, is in an early draft stage and is still at a
painful-to-read level, so be warned.  Also, I've talked with a patent
attorney on the general ideas, but not the specific alpha-version of
the license as written, so I'm sure there are legal holes all through
it on the specifics as they currently stand, even if the general idea
can be made workable.)

>  A patent pool and defense fund made over to the OSI with which to
>  defend and countersue on free software actions would be wonderful,
>  but I don't see it happening. Nevertheless, if the OSI has enough
>  money, a patent pool might be a sensible idea.

I prefer solutions that decrease the likelihood that programmers will
need to get involved in litigation.  Even members of persuasive
organizations would (I would think) prefer to spend more nonprogramming
time persuading board members of corporations than persuading jurors in
court cases.

Relevance to the Open Patent License:  If a patent is used outside of the
conditions of the Open Patent License, I'd like the owner of the patent(s)
to be able to litigate, and not be forced to take some legal action about
the infringement myself.

> >It seems to me that forbidding the use of any technique which to which
> >someone, somewhere _claims_ an exclusive right would mean forbidding all
> >software development.  Banning patented or allegedly patented algorithms
> >in free software projects would simply be giving in.

Yes.

Avoiding all software patents simply stifles development; it's one way of
ignoring the problem and won't do anything to solve it in the long term.

I'm thinking that a patent cross-licensing agreement that addresses
the problems software patents cause for both proprietary and Open Source
software development would be better than one that only addresses
Open Source concerns, both because it includes everyone who is (wrongly)
harmed by software patents, and because it includes everyone who might
be interested in spending time, money, and patents to help solve the
problem via cross-licensing.

 -Mark Shewmaker
  mark at primefactor.com