Defense against Patents

[Lawrence E. Rosen]

Eben,

Your analysis of how the GPL might protect software from a patent threat
is not realistic.

You hypothesized, solely for discussion purposes, that Microsoft has a
patent that reads on some portion of Linux.  You suggested that
Microsoft would not go after the open source programmer (his pockets are
too shallow) but would go after, say, HP instead.  Because of the GPL §
7, you concluded, HP would not be able to construct a private settlement
but would have to defend everyone's right to practice the patent.

But why would Microsoft go against HP and risk HP's funding litigation
to invalidate the patent?  That is not typically how such patent
disputes resolve themselves.  Patent holders often try to assert their
claims against little guys first.  That way they can get quick
settlements that establish a de facto legitimacy to the patent without
risking a big-bucks defense.  They litigate slowly up the food chain,
not down it.  

Alternatively, Microsoft could forget a lawsuit against HP and proceed
against HP's customers directly -- the banks, insurance and
manufacturing companies that infringe through their *use* of patented
technology.  Such companies don't usually have technology patents that
they can use as bargaining chips.  Also, as you well know, there is no
indemnification or warranty of non-infringement in open source licenses.
Merely chilling the acceptability of our software in the eyes of our
customers would be a dreadful defeat for us.

And why would injunctive relief not be appropriate, even against little
guys?  When arguably infringing software is distributed for free there
is no reasonable measure of monetary damages.  As you know, that is one
of the criteria courts use to judge the appropriateness of injunctive
relief.  If you can knock out the key developers of an open source
project because of the threat that they will lose their houses and their
software (unrealistic though that threat might be to those of us who
understand real litigation in real circumstances), wouldn't that suffice
to chill the use of patented technology?

I'm sorry to say that the GPL's defense against the patent threat is
weaker than we can afford.  We need something stronger.

/Larry Rosen


Eben Moglen wrote:
> Under US patent law, injunctions against distribution of 
> infringing goods are scarce as hens' teeth.  The adequate 
> remedy is assumed to be royalties by way of damages.  In the 
> free software context, that means independent developers and 
> non-commercial distributors, both of whom don't as a rule 
> charge for their code, are pointless defendants to sue.  The 
> people who get hassled are the large commercial distributors 
> who make money and who therefore are potential sources of royalties.
> 
> Those enterprises, however, usually have substantial patent 
> inventories of their own.  Therefore, they don't pay 
> royalties either; they cross-license.  So let's suppose that 
> (naming someone at random) Microsoft has a patent that reads 
> on some standard and wants to assert its patent against, say, 
> the Linux kernel's implementation of the standard.  Suing 
> individuals who don't charge won't work, so they go to 
> (again, picking a name at random) HP.  Under ordinary 
> circumstances, HP would cross-license on non-sublicensable 
> RAND terms, using its own patent portfolio to make a separate 
> peace and leaving the rest of us to hold the bag.  *BUT* not 
> with section 7 of GPL.  If HP accepts that RAND license, it 
> has conditions imposed on it incompatible with GPL, and 
> therefore must stop distributing the Linux kernel.  The only 
> terms it can accept are GPL-compatible terms, and if those 
> terms are available to it, they are de facto available to 
> all. If it can't get a GPL-compatible license, HP has no 
> choice but to defend the infringement action, which it 
> (unlike most of the rest of
> us) has resources to do.
> 
> In this way, by preventing separate-peace deals among fat 
> cats, GPL section 7 actually ensures vigorous defense of 
> patent assertions against free software.  Unlike patent 
> retaliation and "mutual defense" provisions, which have some 
> side effects of their own and which only work against patent 
> plaintiffs who also distribute free software, GPL section 7 
> does more than discourage the assertion of claims; it 
> actually mobilizes the relevant resources by creating 
> incentives for well-funded potential *defendants* to do the 
> right thing.
> 
> This approach to patent defense is--if you'll pardon a slight 
> professional joke--novel and non-obvious.  It's one of the 
> subtleties of GPL.  I'm not sure it's all we need; Richard 
> Stallman and I are still considering the full range of 
> options for GPL v3.  But I think it deserves careful 
> consideration by those who are trying to decide what license 
> to use with one eye on the egregious problem of software patents.

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