brainstorming

[bobyrne at iol.ie]

Benjamin,

I'm sorry but I'm still not clear on your goal from this improved license /
contract.

Do you want to prevent others from using patentable claims? (I think not,
or you wonldn't be considering open source at all)

Do you want to prevent others from claiming your innovation as their own?
(You already have that, no need for a new license or contract)

Do you want to prevent others from patenting innovations based on their
derivatives of your work? (Probably impossible; if they made an inventive
leap on top of your work they deserve the patent on that invention)

Do you want gain the right to use other's patents that are infringed by
your project? (I don't see why anyone would accept such terms. If you
infringe their patents with your work they have nothing to gain from
accepting your new license / contract)

Do you want to gain the right to use other's patents that are implemented
in their derivative of your work? (This seems to me closest to the
cross-licensing scenario. They gain your implementation and you gain the
right to implement or use their innovation on your implementation.)

I think the last scenario is addressed to some extent by the GPL, in that
the person writing the innovative derivative cannot distribute that
derivative without a free license for the patents.

Am I missing your goal entirely here? Can you help me?

Brian.

>Brian
>
>Yes, you are correct. No one else can claim it as their invention. And no
one 
>else can get a patent on it (or if the patent is granted, it could be 
>successfully challenged). However, you also cannot claim a patent on that 
>invention. You only have your license. 
>
>So, this brings be back to the original question. What do we need to do to
the 
>license to give it the kind of legal force that a patent has? Can we frame

>our licenses in such a way that they become a counter weight to the
patents 
>that the Closed Source Proprietary Sorfware Community has? 
>
>Benjamin Rossen 
>
>
>On Monday 17 January 2005 13:38, bobyrne at iol.ie wrote:
>> Ben,
>> 
>> Just to clarify your goals, because I find one point confusing:
>> 
>> You said:
>> >If the patent has not been lodged, but is given away, then it ceases to
>> be patentable.
>> 
>> And:
>> >For example, could we do something to give us protection like the 
>> >umbrella protection that IBM has given to the Open Source Community, 
>> >namely; frame the Open Source License to say that any entity making 
>> >use of any innovations that have their origin in the Open Source 
>> >Licensed software at hand, which they may use in their proprietary 
>> >software, simultaneously forego the option of pursuing their own 
>> >patent rights with respect to any patentable claims used by the Open 
>> >Source Software. 
>> 
>> ie: you state (correctly, as far as I know) that any innovation released
>> under an OS license before being patented is not patentable. The OS
project
>> becomes prior art for the innovation, preventing subsequent inventors
from
>> claiming it as their own.
>> You then ask if it is possible to prevent someone from claiming a patent
on
>> innovations implemented in the OS project. Is the answer not a trivial
>> 'yes'? If you release a project FOO containing innovation BAR and make
no
>> effort to patent BAR, then no-one else can claim BAR as their invention,
no
>> matter how they implement it.
>
>The disadvantage of the Open Source Community is greater than that.
Because 
>most hackers do not recognize patentable innovations, they give them out
in 
>new releases before anyone can say "Hay, wait a minute (or a day or a week
or 
>a month, or what ever is needed)! Let us look at that new idea for patent 
>potential before you post the new release." 
>
>This just doesn't happen. Have you read Eric Raymond's description of the 
>guidelines for successful Open Source projects? One rule for success is to

>make frequent rapid releases; you must send new things out even when they
are 
>in an immature buggy stage. I think we cannot build into our iterative
open 
>system the delays that would be needed to carry out a patent seeking
phase. 
>It would kill the Open Source method. 
>
>So, we need something else. What can that be? Can that be a new kind of 
>license? If so, how should that license be framed? 
>
>Benjamin Rossen 
>
>> 
>> >Benjamin Rossen 
>> >www.amiculus.com 
>> 
>> Brian O'Byrne.
>> http://www.iol.ie
>> 
>
>
>
http://www.iol.ie