protecting an Innovation from unlicensed abuse by a rival commercial 3rd party

[Marc Whipple]

________________________________
From: Cinly Ooi [mailto:cinly.ooi at gmail.com]
Sent: Friday, June 11, 2010 8:17 AM
To: Harri Saarikoski
Cc: license-discuss at opensource.org
Subject: Re: protecting an Innovation from unlicensed abuse by a rival commercial 3rd party

Dear Harri,

I am not a lawyer.

My question concerns an AGPL covered OS software (below Software) developed by Company#1. We (this writer) are Company#2 who extend this Software to produce Software+ by way of an Innovation whose copyright Company#2 solely owns. Company#2 and Company#1 are partners that want to market and sell Software+ in full agreement and cooperation. Software+ is to add great value to end clients that Software of any operator in our field (OS or proprietary) are not able to. Company#1 and Company#2 have no licensing issues between them. It is rather our common interest to protect Software+ from a specific type of 'hostile' third party (Company#X). Worst case scenario is: Company#X are aware we're developing the Innovation, so they most likely wish to copy the Innovation from first Software+ distribution, continue to implement it in their next distribution of their own software, and sell the Innovation free under their own GPL license. We also have non-OS rivals who may freely pick it up, patent it and there goes a life's work in vain ! This (proprietary intervention) is in fact the greater threat.

In one sentence, you want to exclude a group of people from using your software+. In your particular case, commercial, for profit group, or a subgroup of it.
My company uses Open Source software extensively: at one point, we modified one of the OSI approved licenses in such a way as to just exclude people from using the OS software we wanted to release under it for commercial purposes unless they participated in the development of it. We then tried to get this license approved so we could use OSI-related resources. The OSI politely but firmly told us that that was not allowable. We got what I understand was the fairly unusual response of, "It's a good license and people should use it if that's what they want to accomplish, we just can't approve it under the OSI guidelines."

A license to block competitors generally, I suspect, would meet no greater success.

As far as the OP's concern about non-OS rivals picking up the OS and patenting it, you can't patent something if you're not the inventor (or acting on their behalf for some reason.) Period. While I am a lawyer (and in fact I'm a patent lawyer) this is not legal advice, but if this is the concern and they want to prevent it, they could simply either file their own patent or file an Information Disclosure Statement with the patent office, or else with one of the commercial or free information disclosure services, thereby putting it into the public knowledgebase. Once this is done patenting it would become very, very tricky at best and under some circumstances completely impossible, even for an independent inventor.

M
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