brainstorming

[Benjamin Rossen]

On Monday 17 January 2005 14:14, bobyrne at iol.ie wrote:
> 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)

Two points here: 
(1) As soon as an innovation is released by any hacker or project leader to 
Open Source community it ceases to be patentable, even if it might have been 
before the release. So, perhaps we should not be talking about patentable 
ideas, but rather more generally about innovations. 

(2) No, I do not want to prevent anyone form using them. In fact, I would be 
in favor of encouraging everyone to use them. I would also encourage Closed 
Source Proprietary software merchants to use these innovations. 

> 
> 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)

No, I don't care who claims these innovations. In most cases, no one has the 
right to lay a claim because of the collective process that leads to 
innovations being found, worked on, expanded, applied, debugged, and so on. 
They are community property. Even an engineer who may have played a central 
role in implementing a give innovation is still riding on the collective 
wisdom and effort of the Open Source community. The question of whether a 
name is associated with a given innovation, however, is not germane to the 
big idea I am trying to discuss. 

> 
> 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)

I think you are right. I think we are stuck with patents. Those who are 
putting their effort into fighting software patents are taking on a Sisyphean 
task, and cannot succeed. That is my opinion, but time shall tell. In any 
case, I am not trying to prevent there being patents, and I am not trying to 
prevent any individual from claiming a patent on their own innovations. 

> 
> 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)

Not quite...

> 
> 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.)

Yes, exactly. If a Proprietary Software Merchant wants to use Open Source 
innovations (which we have not patented because we are giving the ideas away) 
then we want to use the proprietary patents. Now, put in those terms it is 
naive to expect that an entity like Microsoft shall ever agree voluntarily to 
such a construction. So, we need power to enforce something like this. 

We need a license, or a license/contract conbination that is powerful enough 
to be used as a club against the Closed Proprietary Community when they try 
to go after the Open Source Community on the grounds of patent infringement. 
We need a license so strong that we can go after them for license 
infringement with respect to the Open Source innovations which they use or 
are dependent upon. And there is a lot of those, which at  this time are not 
protected by any sort of license. 

Internet was invented by the Open Source Community. Now, if Microsoft could, 
they would fill it up with patentable bits and close it down. What can we do 
to stop this? 

> 
> 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.

No. That is not so. The GPL prevents the Open Source innovations from being 
used in proprietary software (unless the package is divided into the open 
bits and the proprietary bits, which is possible as long as the proprietary 
bits are not derivative but merely use the open bits). I want to encourage 
them to use Open Source innovations. But, we should get something in return. 
We should get powerful protection of the Open Source community from charges 
of patent infringement. 

Can this be done? 

If so, how can it be done? 

If it cannot be done, what are we to do? 

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

Benjamin Rossen