Dave Winer asked (in a comment to yesterday's entry) about OSAF's position on patents.
Dave,
OSAF hasn't worked out a specific position yet on patents, but obviously we will be doing this. You know my historical position, which hasn't changed much. The patent system is broken. Most software patents should never have been issued, as there is either prior art or they are trivial. Nonetheless, we who are in the software world have to deal with patents and a broken system while working to fix the system.
One big goal is not to let patents get in the way of open source. This means that any patents associated with code OSAF distributes have to be licensed royalty-free to OSAF with a viral cluase.
An issue is whether OSAF should try to obtain patents, licensed royalty-free with its code, in order to protect ourselves better against claims of patent infringement by others. This is akin to saying, "we're peaceful, but in order to protect ourselves against attacks, we must arm ourselves." My idealism and pragmatism fight each other on this one.
Comments, anyone?
Posted by mitch@osafoundation.org at November 08, 2002 07:42 AMHi Mitch,
Whilst starting RealNames I had the same dilemma. In the end i filed a patent for the reasons you state. A little later we were sued for patent infringement by a 3rd party. We won - at some cost - and my own patent was not material in our victory. In general I don't believe it is really worth the time, effort and cost. A cleaver coder can always do the same thing differently and so neutralise a patent. And if that is not true the patent is probably too broad and will not be defensible. So .. in short.. save yourself the hassle. :-) My 2c
Keith
Posted by: Keith Teare at November 8, 2002 08:21 AM
I am not a lawyer, so check with one first, but it seems to me if pressed in court about patent infringement, your case is better if you say "software patents are wrong" and can't be cross-examined about your own patents. I have done jury duty, and those kinds of arguments work with juries imho.
Posted by: Dave Winer at November 8, 2002 09:11 AM
Don't file patents but regularly get notarized copies of the source so you can demonstrate prior art.
Posted by: Dan at November 8, 2002 09:22 AM
"Don't file patents but regularly get notarized copies of the source so you can demonstrate prior art."
Good idea. I keep a daily weblog and talk about my design process in real-time, so I have a trail to point to. The lawyers call this a "lab notebook." Same idea.
Posted by: Dave Winer at November 8, 2002 09:46 AM
A Patent is a right granted to the protection of a device, substance, or method, which is new or innovative.
We have the dream, market, product integration requirements with the ability to implement “killer features”.
Long-term goal is to enable the code to evolve (being-open), robust with TQM, OS independent and be expandable, interoperable to cover other applications like DB management and other associated office environment applications.
There is also a feature list, which as far as I can see doesn’t have any of the aforementioned criteria for Patent registration. However in today’s anti-competitive society of commercial software giants one must take all measures possible to protect their business, device, substance, or method.
Do we require an international Patent or will a US based patent be suffice? The answer to this is it will never be suffice if we protect Chandler just in the US, Canada, Australia, Etc…
IP is the topic on hand and I suggest we look at it from a technical and legal perspective. From a technical stance we know that software patents are a dime a dozen and they are not worth the paper they are scribed upon. However from a legal stance our learned colleagues have always promoted protecting IP for the mere fact it is crucial to any successful business.
I suggest filling a Provisional Patent in Australia, which provides flexibility and IP assurance. There is also the option for an international application that will cover oversees markets including the US. The Provisional Patent registration provides a 12-month cooling off period, which will enable us to make a greater and well informed decision.
The other advantage is that the Australian dollar is trading at around US $0.54 = AUD$1.00 so the cost of registration and searching will end up being cost effective alternative to applying in the US. As some would say "MORE BANG FOR YOUR BUCK".
More Info
http://www.ipaustralia.gov.au/patents/P_topat.htm
Now that we are on the topic of IP how about TradeMark(s) for Chandler?
Posted by: David Gelman at November 9, 2002 12:05 AM
Mitch, Dave and all,
My 2 cents from the experience of struggling through W3C's patent policy debate for the last few years:
It's clear that patents have significant defensive, as well as revenue-generaing value and that there's reason to want to defend the community that develops up around an open source effort with patents strategically applied for. I agree that blogging or other modern equivalents of lab books can be helpful in invalidating patents, but when a competitor sues OSAF and gets an injunction against releasing Chandler code that lasts until the (years-long?) infringement suit is sorted out, the best defense will be a patent that OSAF can use, or threaten to us, to get a parallel injunction against the competitors product. Having the power to temporarily stop a competitors product in the market is going to be vastly more powerful than prior art, no matter how dead on it is.
The principled question seems to be whether OSAF would be prepared to use a patent in such a defensive but agreessive manner to fight off an infringement suit? If so, then it just seems the practical (though not simple) question is how big the risk is. If not, then it's probably not worth the time, money or moral hazard to get into the patent game at all.
FWIW, the proposed (but still not yet final) W3C patent policy does rely, in part, on reciprocal use of patents to keep Web standards royalty-free. This is not to say that OSAF has to devote resources in this direction, but the more patents there are in the hands of open source projects, the more likely Web standards will remain RF. Consider this benefit gravy if you decide to go the patent route, but not an absolute reason to do so.
Posted by: Danny Weitzner at November 10, 2002 05:27 AM
Danny, what if the person or company suing OSAF isn't a product company -- what if they're just a bunch of lawyers who are milking the patents. Having a patent to use against them is no help, they don't have any products to be taken off the market.
Posted by: Dave Winer at November 11, 2002 02:39 AM
Mitch's attitude and approach is almost identical to ours at Broadband Mechanics. I just wish we had the extra shekels to file all these patents and keep them in a drawer until needed.
Until that day comes - keeping copious notes and journals - is the only way to protect 'prior art'.
Posted by: Marc Canter at November 11, 2002 03:18 AM
In reply to Dave's question about a suit by implementation-free innovators (those who have patents but no products), I agree that there's not much to do except hope you can invalidate their patents. That sort of operation is usually after money, as opposed to competing product companies who may want to try to monopolize certain features or entire product categories. Those after money alone will probably find open source implementations to be low-value targets.
I'm sure that someone will try a patent infringement suit claiming damages based on the revenue loosely associated with open source products, but this isn't really a good risk for someone trying to maximize the damages/litigation-cost ratio.
Posted by: Danny Weitzner at November 11, 2002 05:02 AM
So what's the downside to OSAF disclaiming all patents and keeping patented stuff out of their code base through contributions? How could distribution of the software be stopped? (That seems to be Danny's primary concern.) Further, if Mitch doesn't stand up for free speech for developers, who will? Further, who will support Mitch if he doesn't? I never thought the W3C could sit on the fence over this, I still don't, and I sure don't think an open source developer can. Either you stand for freedom or not. There's no half-way position. No way to say you're against limiting freedom, but retain the power to limit freedom. If you do that, you're on the wrong side of this issue, imho.
Posted by: Dave Winer at November 11, 2002 02:20 PM
Danny Weitzner alerted me to this fine company and to this weblog. Thanks, Danny.
The W3C patent policy is one good step toward addressing the patent problem facing open source. (I represented the open source community on that working group and count this as progress.) The other alternative, that we gather our own portfolio of patents to use defensively, is not likely ever to work for us. Nor does the cornucopia of prior art prevent the PTO from issuing bad software and business method patents.
That's why the Open Source Initiative (www.opensource.org) is proposing licenses containing a "Mutual Termination for Patent Action" provision (sometimes referred to as the "mutual defense" provision).
What licenses will OSAF be using for its software?
Posted by: Larry Rosen at November 14, 2002 09:51 AM
In regard to the post by Dave Winer on November 8, I think it's all relevant. Patents are really all about money. They are obtained so the inventor can recoup his money from R & D and have some for more R & D as well as profit. So it would be one thing for Microsoft to go into a courtroom saying there shouldn't be software patents while they are profitting from their own and OSAF in a courtroom claiming there shouldn't be software patents while claiming their patents as self defense against profiteers and giving their product away and/or the use of the patent.
I say if the cost justifies it go the GPL way.
Posted by: Scott Blackburn at December 8, 2002 11:27 AM