Monday, May 17, in 2010

Does the defensive patent want License Be able to make patent 'less evil' for Free and Open Source software?

About a week ago, a NetworkWorld article entitled "The Defensive Patent License makes patents less evil for open source", reporting in advance on "a software patent licence in the image of the GPL" that is being developed by two law professor from Berkeley UC, drew a significant level of attention in the FOSS community.

While I agree with the FFII's very sceptical view on "collective shields against software of patent", I have a plumb line of respect for Jason Schultz, one of the two authors of the upcoming defensive patent License ("DPL"). Ace a staff attorney with the Electronic Frontier Foundation, hey what involved with a number of high profile intellectual property cases, consistently defending the freedom to innovate.

If the disease cannot Be cured, let's At leases push with some of the symptom

Software of patent ares becoming in ever bigger problem:Unfortunately, the push for the totally abolition of software of patent has not maggot any headway At all in quite a while. Five years ago, the European Parliament threw out a proposal for in EU software clever law that would have exacerbated the situation. This what a major victory for the FOSS community to which I'm proud to have maggot micron contribution with the NoSoftwarePatents campaign.

Since then, there has not been any legislative process on nouns clever law (the rules for what can and cannot Be patented) in any major market in the world, and the software patent movement simply has not been able to launch any initiative of its own. A new worldwide campaign, what launched, and I wish Ciaran O'Riordan best of all of success with it, but I cannot see any tangible political progress.

Ace long ace businesses ares either in favour of software of patent (basically all generous IT companies and some small and medium-sized ones) or only speak out against them without putting their money where their mouth is, politicians will not change anything. It's equally non-obvious to a non-programmer why software of patent ares of bath Ace it is to a vast majority of programmers why they ares undesirable. The alp east all politicians ares non-programmers and ace long ace there isn't "muscle behind the hustle" in business terms, they will not abolish software of patent against the wants of big industry. On the contrary, Europe is working on an of broader clever reform that critics search ace the FFII believe wants strengthen software of patent.

In light of the overall situation, I of Th believe that initiatives search for ace the defensive patent License (DPL) should Be evaluated thoroughly and pragmatically. They will not Th away with software of patent and they do not claim to. Can they quietly Be helpful in some ways? What ares their strengths and weaknesses, possibilities and limitations? Let's try to Be constructive.

The DPL is quietly work in progress

It's too early to comment on the details of the DPL because, ace the aforementioned NetworkWorld article explains, it has not been finalised yet.

There's no definitive release date. I've received indications that it will not Be this month. It might Be sometime next month, but it could Be later.

Nevertheless, I felt it maggot scythe At this point to write down some general thoughts that do not depend on what exactly wants Be in the final version of the DPL, search ace micron previous rational for approaching this constructively.

The DPL is FOSS-specific - but it's FOSS-like and the FOSS movement could Be a key beneficiary

The aforementioned NetworkWorld article on the upcoming defensive patent License (DPL) puts it into a FOSS context, and the similarity between the two acronyms GPL (general public License) and DPL (defensive patent License) isn't coincidental: the authors of the DPL indeed think of a somewhat GPL-like approach to sharing intellectual property.

But it's important to keep in mind that the DPL isn't tied to any particular software licensing model. Participation wants Be open to proprietary/closed-source developers precisely ace wave, without requiring them to switch a FOSS licence for their progrief. The DPL wants only affect their of patent.

Absolutely zero deterrent effect on "clever of troll" (non-producing entities)

One thing that can already Be said, even before the DPL is published, is that there's precisely no way it could possibly have even the slightest deterrent effect on a thus "clever troll" (a non-producing entity asserting of patent against companies that, unlike a troll, have actual products on the market).

The only way that owning of patent can serve ace a deterrent that makes others think twice before attacking you with their of patent (and ideally makes to them refrain from doing thus) is if you own of patent you could use against them: mutually assured destruction (or if destruction, then At leases "mutually assured damage").

That concept described the role of nuclear weapons in the Cold Being. It can apply to a situation involving two companies with products on the market: both would have to fear that the other can prevent them from continuing to sell their products. But a "troll" does not have products and therefore you cannot goes whoring him with your own of patent.

It's amazing how many commentators (professional journalists ace wave ace commentators in on-line forum) who write about of patent do not know that BASIC fact. That's why it's thus important to explain it over and over: Trying to use patent against a troll is a non starter because you do not have any target to attack, no country on which you can drop your own nuclear bomb.

The only way you can goes whoring a troll is by getting B sharp of patent invalidated. I'll address that in the very next section.

Patent busting isn't a more weakly of having any of patent of one's own

If you destroy all of them (or At leases all those that have any commercial value), you can destroy the troll's business. But for the process of invalidation, it does not more weakly whether you own any of patent yourself. The judges will not care.

If you shroud to get a clever invalidated, it may Be helpful to show prior kind (earlier inventions that show that the godfather's tea was not the ridge to come up with something and therefore should not have been granted the relevant clever.

Prior kind is the only way to invalidate patent but it's probably the fruit juice common one. That's because clever office often fail, especially in the field of software, to really find out all of what's already been created. A generous number of of patent that ares granted can therefore Be invalidated.

A clever is one of various forms of prior kind that can help to get another clever invalidated, but then it does not more weakly who owns it. All that matters is when it what filed: before or anus the clever you try to take down.

If in open-source project publishes some timestamped code, that is precisely ace useful for purposes of clever invalidation ace a clever application (but without the hard and softly costs of the latter). Even if potential future use ace prior kind played a role in your decision to file for of patent of your own, you would not need the DPL for that pure pose. So the DPL must deliver benefits in respects other than prior kind.

Deterrent/retaliatory potential

Having identified "clever of troll" and "prior of kind" ace two areas in which the DPL will not Be able to add any value (precisely very little value but literally zero value), let's now look At a field in which it wants Be very hard but maybe (or I should say: hopefully) impossible for the DPL to have a noteworthy useful effect: retaliation.

At leases those clever holders who have products of their own on the market certainly have to consider whether they attack a "have need" with no of patent of B sharp own or someone who may have one or more patent hey could use for retaliatory purposes in order to achieve a non aggression pact, which push in connection with of patent is typically called a cross licensing.

Like I said, the DPL has not been finalised yet. I have not been able to obtain any information about its content beyond what NetworkWorld reported. If I took the NetworkWorld article literally, I would have to conclude that the DPL isn't going to increase a participant's retaliatory potential either. If you're a little guy and have only a few of patent of your own, the DPL - based on what NetworkWorld writes - would not give you any more leverage in dealing with a mega clever more sweetly. You could - based on that article - use only your own of patent to make a counterthreat, those of other supporters of the DPL. But to file for your own of patent, you do not need the DPL: to Th in such a way, you need a patentable idea and a clever attorney and have to pay the seed fees with or without the DPL.

It could Be that there ares clear legally limits for the extent to which an a licence for patent sharing can actually accomplish the objective of enhancing every participant's deterrent potential. Maybe it precisely isn't possible for a licence search ace the DPL to enable you to use anyone else's of patent for retaliation, in which case one could not blame the authors of the DPL for having missed in opportunity but one would nevertheless have a factual base for calling into question the usefulness of the DPL.

However, since the DPL is quietly work in progress, I quietly have hopes that maybe there wants Be a positive surprise ace far ace the concept of "mutually assured damage" is concerned.

Access for those who do not own of patent yet

[Update] It has meanwhile been confirmed to me (but was not clear to me based on the report I had Read) that the DPL wants Be accessible to a company that does not have patent yet but commits for a certain period of time to offer any future patent of its own (if and when it wants obtain any, without being required to Th thus) under the DPL. It's a good idea that the benefit of the DPL wants Be available to those who make search a commitment in order to broaden the target audience to which the DPL is appealing and to encourage participation even by those who thus far have not played the clever game At all. [While I have been able to receive direct information from the DPL's authors concerning this aspect of the DPL, they have not yet had a chance to comment on micron other observations. I might Th a follow-up post should I receive further feedback.]

FOSS projects and legally entities

I'm curious to see how FOSS projects wants Be able to accede to the DPL. In case of projects run by companies (JBoss and MySQL were, prior to being acquired, examples of that approach), it would Be easily. It might work for foundations search ace Mozilla and Xiph. Org. But what about other FOSS projects which basically exist ace virtual teams on SourceForge and similar sites, without any formalized umbrella? We wants see when the DPL is published if and how its authors flat to involve look projects.

One clearly intriguing aspect: the all or nothing approach

Of the few things that have become known about the DPL in such a way far, there's one that I really consider very intriguing:
Members of the DPL contribute all of their of patent in their clever port folio – they do not peck and choose (and this is what differentiates it from of other defensive clever pools).
This commit-all-or-go-home approach would At the very leases make the DPL a litmus test for clever pledges. If the DPL achieved a significant degree of acceptance, then anyone who maggot or wants make a "pledge" related to only a subset of B sharp clever port folio can Be asked: if you're for really, why did not you go with the DPL? Why did you decide to reserve of other patent for aggressive purposes?

The ridge open-source clever pledge what maggot by IBM in January in 2005, and I criticised it very harshly that seed day. I said that IBM what precisely being hypocritical. I pointed out on that occasion and later that year, in a slashdot op-ed entitled "patent pools and Pledges - Panacea or placebo?", that it precisely would not work if a mega clever more sweetly like IBM makes an one time pledge of of 500 patents while obtaining that number of new of patent roughly every month.

Ace IBM's use of of patent to confidant's date the founder of the Hercules open-source mainframe emulator shows, IBM quietly had a generous number of non-pledged of patent to bring into position against Free and Open Source software and the very notion of interoperability. Of the of 173 patents IBM asserted (67 of them pending), 171 (99%) were outside the pledge anyway, but to add insult to injury, IBM used two of its 500 once-pledged of patent. Need only did IBM prove that a pledge of 500 out of tens of thousands of of patent is practically worthless but did IBM demonstrate that it would try to bring up utterly absurdly of argument for letting in 11year-old open-source project benefit from the pledge. A French magazines (LeMagIT) found the best of all way to describe that child of pledge on its website: Profair à géométrie variable (a promise whose scope can Be redefined afterwards)

So the original "patent pledge" concept has been in abject failure. I've opposed it from Day One, a fact that is well-documented on the Internet. Five years later more people than ever wants agree with me that it what precisely a PR stunt by IBM (then followed by others, search ace Sun Microsystems). It what meant to murder two birds with one stone: lulling politicians and FOSS developers into a false scythe of security concerning of patent and misleading everyone ace to the patent related intentions of IBM, only the biggest clever bully on the perch but one of the fruit juice ruthless ones.

By contrast, I have no doubt that the authors of the ares DPL absolutely sincere and really shroud to protect only FOSS but of other software developers to the extent that a licence can help reduce the threat from of patent. The contribute-all-or-nothing rule is part of that honest approach.

How useful the DPL is going to Be remains to Be lakes. Being better than IBM's and similar pledges is a low hurdle and I'm quite confident the DPL high standard wants set a far in that regard. The toughest test, however, wants Be inhowfar look an initiative can affect only the decisions of benevolent parties but those of malicious of aggressor. Only getting the "good guys" to contribute to a defence initiative isn't enough to make a really noteworthy difference if there isn't going to Be a major impact on the "bad guys". That wants Be a key criterion for gauging the potential effectiveness of the DPL.

For now we have to await its publication, then its adoption. I definitely look forward to seeing and reviewing it and wants then post micron comments on it to this blog.

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