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

Cinly Ooi cinly.ooi at
Fri Jun 11 15:21:15 UTC 2010

Dear Harri,

Disclaimer:  This time I am serious when I say 'I am not a a lawyer and you
do have to consult a lawyer'. My opinion here may not be valid at all.


Ok right, well first of all let me say I understand the difference between
> patenting and closing. To respond to your question, no, I don't believe
> anyone can do it, took me 8 years to 'get it', it's termed as Open Problem
> in academia and I've only seen a couple of projects that remotely ressemble
> one I successfully completed, and they have all aborted long time ago. This
> should not be taken as foolish optimism or arrogance, it's just that the
> problem is *actually* difficult to solve.
Good starting point. Easier to convince stakeholder to go  down open source

Perhaps relevant: since others had aborted it, may be they are not
interested in pursuing it commercially anyway.

> Patenting yes, it's not like I hadn't thought about it... Just that being
> relatively poor (as most of us are), I find the funding required for
> worldwide patenting to be too much. Although (now I have to ask since I let
> go of patenting six months ago), if I apply for patent in my home country,
> and it then goes into the "process" of novelty inspection and all that, does
> it then protect the Innovation from some point then on from someone reading
> the patent document and patenting it worldwide in all the other countries
> (specifically the US where the rivals are) ? I don't know how it is in your
> countries (and I do appreciate the flurry of replies in such short time) but
> here the goverment agency supporting patenting takes -3% royalty fees for
> each sales of the product (so that kind of 'forced dependency' turned me
> off).
This is going to depend on jurisdiction. But I think normally, as soon as
you file the patent application, or at a certain stage after filing the
patent application, you can disclose the invention as the claim in the
patent is already protected, even if the patent office had not given you its
final determination. This is supported by the fact that we see "Patent
Pending" message all the time.

Presumably you are living in a country that signs the appropriate
international treaty, if you go through the hassle of applying for a patent,
then you get a priority date that is recognized internationally. I would
then explore with my lawyer the possibility of delaying patent application
in a foreign land until I am ready, or about to sue someone if you do not
think spending the money now is worthwhile.

Your Patent Office may want a commission for the patent, but in return they
do offer very strong protection presumably. It is the cost of doing business
in your place unfortunately.

One alternative is of course to publish your method in a respectable
journal. However, that still does not stop others from actually copying it.

> > You say you want to "market and sell Software+". But unless you're
> selling support, closing some aspect, or embedding
> > ads, it very difficult to directly make money from software that only
> employs an OSI-certified licence. Are you looking
> > for a business model, or are you just wanting to build a reputation,
> which could lead to a job?
> No, the opposite of all that rather. I own a software company whose primary
> sales item this is. But yes: I am looking for a business model.
> Best choice for us at this point seems to be either dual license or SaaS
> distribution. But it's just that like, I'm borne and raised on OS products,
> I believe in the whole thing. Where does the line go where one can claim
> something as one's own (without fear of the community that 'raised' you and
> you believe in) ? May sound philosophical and useless and it is indeed a
> POSITIVE problem.

I am not so sure how dual license helps you. My Gold Standard is GPL for
open source as it is the least 'commercially friendly' in the traditional
sense. I cannot see how you are going to stop the competition from copying
the method once it is known, except using patent.

Company1 in your case distribute the software as AGPL, that means you have
to make the software code for your SaaS distribution available unless you
can strike a separate deal with them. That can count against the possibility
of dual source. I presume you have a way to resolve it.

> What benefits do you think community involvement can bring you?
> Well, community mainly stands to benefit. The product will be developed
> unto its optimal point by me in like a year.
> Didn't think of the community as contributors.
Good. We manage to get the unrealistic expectation of 'build it and they
will come' out of the way.

> > What do you mean by "maximal exposure"?
> I mean the intended far-and-wideness of the products' eventual distribution
> -> this should travel everywhere *without discrimination*
> (except for the NEGATIVE undue undeserved impact of those Company#X !).
> I beg your pardon but I think you and Open Source have a different
definition of  "without discrimination".

I understand where you come from and will say that sometimes, not going the
open source route initially is to the benefit of the method being
development as it  give it a source of support.

> Yes, the
> > innovation, excitement, goodwill, access, and general activity that comes
> from community participation can be a bulwark
> > against competitors, and you can protect a lead by using trademarks, but
> how are you going to make money?
> 5-15k$ / client / year is the projected sales price, well within defines of
> existing (and GPL covered) products.
> Money is not the point, Good Business as outlined above is paramount over
> huge revenue.
OK. To address your concerns about other people exploiting your innovation
commercially I think the best way is to start the company in a close source
fashion. Then, once you find your niche and is more comfortable with the
viability of the company you start exploring the possibility of opening up
the source code. There is nothing wrong in starting this way. Moreover, it
is, most of the time, easier to do things this way.

To satisfy your aim of contributing back to Open Source, just make sure that
you are careful in selecting the appropriate software/technology that makes
the product eventual open sourcing possible and easier.

For me, nothing is worst that the inventor not comfortable in open source a
particular product (which you appear to be), or plunge in not realizing the
implications of open source (which you are not). And as Inventor I am sure
you prefer to find time perfecting your product instead of discussing the

Best Regards,

I promise to take all due care and respect for you email, but any T&C you
attached to your email is NON-binding on me.
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