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

Fri Jun 11 16:01:58 UTC 2010

From: MWhipple at itsgames.com
To: license-discuss at opensource.org
Date: Fri, 11 Jun 2010 08:37:12 -0500
Subject: RE: protecting an Innovation from unlicensed abuse by a rival 	commercial 3rd party

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.”

-- reply: hmm I can see many people / companies have gone through the very same train of thoughts as we have (which is good to know) --

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

-- reply: yeah... tricky 

Two emerging points that seemingly meet the OS community requirement as well as the spelled concern of both of us and many others (I can only expect the moral and legal issues):
1. upon closer reflection of the OS agenda wrt our situation, we are likely to release a semi-open source version of the Innovation under Software+, because we don't believe competition is something or anything that needs to be avoided (just as long as we hold the copyright and the first author status). I.e. as long as we are acknowledged to have been the first (the inventors), we are likely to fare well on the common market. This has to do with our willingness to stay on the market and not expect money just 'roll our way' despite us doing other things with our limited time.  -> conviction to the product is paramount to the level of innovation (got it)

2. the OS licensing policies should in all honesty and all senses of the word consider the  quantifiable (yes!) difference between an Innovation and a CloneThis seems only fair, which some of the clauses in the OSI licenses promise to uphold. How can level of innovation be determined a priori before any sales proving it have been done? Difficult, but would you say impossible ? Once in a lifetime (in my case) something so significant appears into the common market place that delivering that in the way that it optimally should be delivered (who other than the developer him/herself can know this?)

In some odd way, we feel declined towards the positive prospect that we would be fine, even if someone like MS stole what was once ours. Another thing to consider is whether things have passed then the way we want to, the 'natural' way. I think they just might, on closer thought. If nothing can be invented that wasn't already there ('public knowledge'), what ownership can we claim in fact ? Ok, I think I got it: "share (almost) everything and go with the flow". Accept the infringement as part of the deal that was made when I started using the OS covered software. Thanks ;) It's best to go together with someone than alone. Still, seriously, consider what the Brand that MS has over Innovation from a single, unbranded party. How can maximal fairness be implemented in cases that with all fairness have a market redealing capability? What would you others advise ? -- 

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. 

--  reply: well, why did you then say you're not a lawyer in the first place ? ;(

best regards, Harri

M

_________________________________________________________________
Your E-mail and More On-the-Go. Get Windows Live Hotmail Free.
https://signup.live.com/signup.aspx?id=60969
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/attachments/20100611/c62766f1/attachment.html>