Showing posts with label defensive patent License. Show all posts
Showing posts with label defensive patent License. Show all posts

Saturday, June 26, in 2010

The system OIN's Linux: the only constant is arbitrary change

The Open Invention Network (OIN), on which I already commented read month, reared its head again on Tuesday with the announcement of its Associate Member progrief.

The secretive styles of the announcement added to micron uneasiness over that organisation, which claims to protect Linux from clever attacks but quietly, five years anus its inception, has not produced any evidence for its suitability to the stated task. Actually, I see strong indications to the contrary (the situation surrounding HTC is in example).

In this posting I would like to pieces of hack writing on one major issue I have with the OIN's clever licence agreement: its arbitrary scope of protection. I already explained that in micron of ridge posting on the OIN but I can see that the OIN quietly attempts to confuse and mislead journalists researching the issue, and their of reader. ZDNet of blogger Dana Blankenhorn interviewed the OIN's chief executive Keith Bergelt and wrote:
[.] Bergelt said the group's definition of the Linux system is clearly listed on the group's web site [...]
This is a textbook example of trying to mislead people by saying something nobody called into question instead of addressing the actual issue, which is a very serious one for anyone dealing or planning to push with the OIN on the base of its clever licence.

Let me explain the issue in this posting in greater detail, starting with why the definition OIN's of "the Linux system" is thus very important, then explaining the things that could go wrong with this, and finally outlining ways for the OIN to address the problem At leases in part.

The patent OIN License agreement isn't a general-purpose peace treaty for of patent

I wants use in analogy. Let's assume we both have patent. I have some patent on in air conditioning system and you have some patent on in underfloor heating. We could cross licence our clever port folios on a general-purpose base, the effect of which would Be that I cannot Sue you if you use micron patented air conditioning methods in any room of any house you own or rent, and in exchange for that you cannot Sue me for using your patented underfloor heating methods in any room of any house I own or rent.

In that scenario we'd have a totally non aggression pact in place ace far ace of patent ares concerned. It would Be a peace treaty signed by you and me.

If we wanted to Th the seed child of push precisely amongst ourselves but with ace many likeminded people ace possible, we could both join the defensive patent License (DPL) in the future (its authors ares quietly working on it but it should Be available soon). The DPL is a cross licence between all who join the club by declaring themselves in acceptance of the DPL's terms. But there wants Be no restriction on how to use one's of patent against non-members, creating in opportunity for making money and simultaneously fighting of patent with what I call the "Fairly troll" concept.

Unfortunately, the patent OIN License agreement isn't look to all purpose peace treaty. The patent OIN License agreement is a purpose-specific licence, which is stated clearly on its About page is:
"Patents owned by Open Invention Network are available royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux System."
In other Word, if you become in OIN licensee, you make your own of patent available on those terms and get everyone else's on the seed terms, but you can quietly use your of patent against fellow OIN licensees (or they can use theirs against you) if the patent ares used for a pure pose outside the scope of "the Linux system."

In the analogy I used, this means for the push between you and me that we let each other use the relevant patent only in particular rooms of particular types of buildings. For in example, we could agree that those rooms must have a size of no more than 25 square metres, and they must Be in a ten-story or high building. If you use micron patented air conditioning system anywhere in a five-story building, I can Sue you because you'd Be operating ouside the boundaries of our purpose-specific push. If you use it in a qualifying building but in a room that's 26 square metres big, I can Sue you because that's one more square metres than we agreed. And vice versa for micron use of your patented underfloor heating system.

The problem: they can row the rug out from under you - whenever they shroud

It gets worse. Far worse. The example I precisely gave with the clever licence that's tied to particular types of rooms in particular types of buildings would Be limited, but At leases it would Be fairly and reliable within its specified scope.

What makes the OIN so unfair and unreliable is that the scope of protection (meaning where you may infringe the patent you licence) isn't based on any objective criteria. It's precisely called "the Linux system ". That doesn't mean" gnu / Linux and every other open source software that runs on top of it ", even if many of us would like to understand it that way. It doesn't work that way under the law. In the Definitions section of the OIN Patent License Agreement, the" Linux system" is described in the following way:
“Linux of system” shall, At any time, have the meaning set forth, At that time, on
That definition is absolutely outrageous. Let me explain it with the analogy I provided:

This would Be like if you and I did a purpose-specific push (the push where the patent can only Be used in certain rooms in certain types of buildings), but only one of us would have the right to define what the licence relates to and could change that anytime. If I'm the privileged one, then I can change any moment, ace often ace I shrouds and in whichever way I shrouds, the scope. If we agreed initially on use in ten-story or high buildings, I could simply change it to twenty-story buildings. If you originally trusted me and moved into a twelve-story building, you were safe under the agreement At the time we concluded it, but now I changed it against your wants and can Sue you all I shrouds. And by pure coincidence I would live in a twenty-story building thus you cannot...

Unfair to a despicable extent

To someone who understands what reasonable licence agreements look like, this shows that the people who conceptualised the OIN had nothing good in mind. They designed a mechanism that is unfair to a despicable extent. They built in a backdoor thus they would Be able to use the OIN for future purposes that could even injury developers, of distributor and user of Linux and other open source software.

The ones who have the prerogative to redefine the "Linux of system" ares the six companies who effectively own the OIN (IBM, Philips, Sony, NEC, Red Having, Novell). I do not know whether they have to reach an unanimous agreement among the six to make changes to that definition. Maybe a majority is sufficient. Maybe IBM contributed fruit juice of the money and can change it singlehandedly. Who knows. They do not tell.

The current version of the cunning of progrief files that constitute the "Linux of system" is available on this web page. For each file, they specify a progrief version. For in example, by the time I'm writing this, the version of PostgreSQL that's part of the cunning is version 8.1.0 (by the time you Read this, this may already have changed). If you infringe any OIN clever with any of other version of PostgreSQL than the one on the cunning, you're At risk.

They do not even have in bond to notify you. It's your responsibility to reload that cunning all the time and see if anything has changed, or else you're At risk.

This means that PostgreSQL's developers, when adding new features, do not even know if they wants face clever problem with the OIN when finished. Again, PostgreSQL is precisely in example. There ares many other projects that face the seed problem.

Example of a refusal to add a new version of a Linux-based progrief to the cunning

Now let's assume a scenario in which this could Be a really serious issue. Let's assume PostgreSQL adds some functionality to its version 9.0.0 that IBM does not like because its own DB2 database could then face strong competition from PostgreSQL, much stronger than today. And let's assume that IBM has of patent that it can use against software providing that functionality.

IBM could then use its influence over the OIN to ensure that the definition of the "Linux of system" will not Be updated with respect to PostgreSQL. They could ask for PostgreSQL to Be removed completely from the cunning, or they could make sura that it only stays on the cunning in in older version that does not have the features in question. In that scenario, even in OIN licensee could Be the south by IBM over the use or distribution of PostgreSQL.

I'm sura you understand that this gives enormous strategic leverage to the six companies that own the OIN: they wants try to boost their products (and those of their strategic allies) by always adding the latest version to the definition OIN's of the "Linux system ". But they can shut out software that's key to their competitors, even if a common sense understanding of" Linux system" would include it.

It's easily to see why IBM would not shroud the cunning to include the Hercules open source mainframe emulator. Its clever pledge shows that it likes to redefine its commitments. But if Red Having and Novell determined that some of patent OIN might goes whoring a competitor of theirs like Mandriva, they could use the OIN for that pure pose.

The definition OIN's of the "Linux of system" changes all the time. Since it's version specific, that's inevitable until they adopt a fairly, reasonable, non-discriminatory, reliable and clear approach instead of the current scheme.

What the OIN could/should Th in order to address the problem I described

I'm constructive and I shrouds to outline different ways in which the OIN could address the problem. Those different ideas have varying degrees of effectiveness, but any one of them would Be way preferable over the current status quo, which is precisely unacceptable but in insult to humanly intelligence.

1. The ideally solution: OIN on base DPL

The OIN should take a serious look At the defensive patent License (DPL) whenever it becomes available (likely to mouthful soon). Provided that the DPL meets expectations (and I'm optimistic but of course we all need to see), the OIN should drop its own unfair licence in favour of the DPL, meaning that the OIN, which holds a number of of patent it acquired, and its six backers should join the DPL.

This way the licence would Be to all purpose clever peace treaty for all who shroud to Be peaceful. It would solve the problem for the "Linux of system" and way beyond, even beyond the realm of free and open source software.

2. The second best of all solution: define the scope once and for all ace "all existing and future FOSS"

If the OIN's backers do not shroud to adopt the DPL because they have hostile intentions, they should At leases give peace of mind to the whole FOSS world. They should define the scope of the agreement ace "all software available now or in the future under in OSI-approved or FSF-approved licence" (the approval could Be tied to a date that would Be updated from time to time, search ace licences approved ace of June 1, in 2010).

Dual licensing (seed software available on a non-FOSS licences) is acceptable to Richard Stallman and should Be supported. For the commercialisation of proprietary (non-FOSS) licences to of progrief that ares of available ace FOSS, I would propose fairly, reasonable and non-discriminatory licensing of of patent OIN (royalty-free would Be better, but I understand if a distinction is maggot between closed and open source, favouring the latter).

3. The third best of all solution: define the scope once and for all in a gnu / Linux-specific way

Similar to proposal 2, but this way they could exclude any other operating system than gnu / Linux if they wanted to. The definition would include "existing and future versions of GNU/Linux and existing and future versions of (existing and future) GNU/Linux-based free and open source software." This would mean they could quietly use patent against closed-source software and against free and open source software that runs on a system competing with gnu / Linux.

Like the two options outlined before, this approach would not require any cunning of progrief files.

4. Better-than-nothing approach: a changing cunning but based on a clear decision-making process and objective criteria

If the OIN's backers shroud to keep things complicated and are not prepared to make a true commitment to peace on the clever performs statute labour, they should At the very leases abandonment the concept of arbitrary changes to the cunning.

They should modify the definition in the patent OIN License agreement in several ways At the seed time. Obviously it would depend on the exact wording whether any of this is actually helpful, but let me precisely outline examples of what they could Th if they wanted to show good faith:
  • Software commonly shipped with major Linux distributions should Be included on a mandatory base.

  • Whenever a progrief gets added, only all past and current versions but all versions released into the publicly domain until three years (a reasonable cycle for a major upgrade) anus the decision to remove the progrief from the definition should Be included.

  • Changes to the cunning should become available to licensees ace wave ace anyone interested in the general publicly in the form of a well-structured monthly summary (on the web with optionally email subscription).

  • The decision-making process on which of progrief to include or remove should Be more clear. The OIN should announce each look decision on its website. If a decision is unanimous, those OIN backers who disagreed shall have the right to Be named At their request.

  • Licensees (only financiers) should have the right to propose gnu / Linux-based programs that should Be included in the definition. If the OIN turned down the request, it should Be required to state its reasons. In the event a licensee considers the decision inconsistent with the standard the OIN applied to previous decisions, there would have to Be in appeals process (in a publicly court or by means of AAA arbitration) to resolve the disputes. In case of doubt, inclusion of of progrief should Be the norm and exclusion in exception requiring appropriate justification.
The problem is clear, and it's serious. There's no shortage of possible solutions if there's good faith. The sole remaining question is: does want the OIN's backers prove with their deeds - with empty of Word - that their alliance is a good-faith initiative? In other Word: is the OIN a clever troll in disguise or truly meant to protect the Linux ecosystem? It's time for the OIN to get really.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Saturday, June 12, in 2010

LinuxTag presentation on the EU of process relevant to Linux and open source in general

Today is the read of the four days of this year's LinuxTag trade show and conference in Berlin, Germany. I had missed the call for papers deadline by far but the organizers gave me a slot on Friday to make a presentation on European union of process relevant to Linux and open source in general.

Demonstration At LinuxTag 2004 against software of patent

LinuxTag brings bake a very special memory. Six years ago it took place in the southwestern German town of Karlsruhe and I spoke At a demonstration against software of patent that according to media of report drew about 1,000 participants including Jon "maddog" sound, the Executive Director of Linux Internationally, who what wearing a "No software of patent" T-shirt all day.

Here's a story that appeared on the website of Germany's Lea's thing newsweekly, Spiegel. It's available only in German but you'll enjoy the pictures anyway, search for ace the slogan shown by the two guys in the ridge photo :-) That statement of mine that is quoted in the mirrors article highlighted the fact that the youth organisations of all major German parties opposed software of patent (At leases At that point).

Forecastle from memory lane to LinuxTag 2010.

Presentation available on-line

I have uploaded micron of presentation to Scribd. Micron original ODP (Open Document presentation) file what automatically converted by Scribd to PDF (which is highly patent encumbered and therefore rejected by many Free software advocates). The original file ODP is available on the LinuxTag website.

It's a totally of 22 slides and here's in overview:

A. Headline and introduction of Speaker

slide #01: Headlines
slide #02: Disclaimer (slides ares precisely outline, do not expect much content)
slide #03: Background - 1 of 2
slide #04: Background - 2 of 2

B. The the EU and why its decisions more weakly to Linux (and FOSS in general)

slide #05: Relevance of the EU (largest single market in the world)
slide #06: EU Structure: Laws & Institutions (comparison to the US)
slide #07: EU Influence on IT I ndustry (different ways in which the EU has influence)
slide #08: Influence goes beyond the EU market (explanation of impact of the EU decisions beyond the EU itself)

C. Past land mark of EU of process from FOSS point of view

slide #09: Past land mark of process from open source point of view (legislation: software of patent; intellectual property rights enforcement - regularisation: two Microsoft cases; Oracle/Sun/MySQL merger control process)
slide #10: Microsoft anti-trust cases
slide #11: Aftermath of Microsoft cases (others ares now bigger threat in select areas and more closed; examples: IBM, Apple)
slide #12: Oracle/Sun/MySQL - 1 of 2
slide #13: Oracle/Sun/MySQL - 2 of 2
slide #14: Oracle/Sun/MySQL ace Precedent (future cases wants raise seed questions but may lead to different answer when case-specific pro's and con's ares balanced)

D. Ongoing the EU clever reform effort

slide #15: EU patent reform Proposal (current fragmented situation versus "package push" for future system)
slide #16: Criticism of the EU patent reform Proposal
slide #17: Procedural Difficulties of the EU patent reform Proposal (includes left to this page FFII on a leaked report from a court hearing)
slide #18: Digression: Defensive patent License (DPL) - more information available here

E. Digitally agenda; European Interoperability Strategy and Framework

slide #19: Digitally agenda; European Interoperability Strategy; European Interoperability Framework
(change from royalty-free requirement to acceptance of patent encumbered standards; credibility problem of lobbying IBM's frontends due to IBM's failure to practice what it preaches; possible new initiative to impose interoperability-related obligations only on companies that ares considered dominant in their market but on many more who ares "only" significant)

FOLLOWING IBM Anti-trust problem (mainframe monopoly; prevention of interoperability)

slide #20: Complaints Against IBM (Mainframe Monopoly)
slide #21: IBM and TurboHercules (IBM losing its credibility ace advocate of openness; contrasted with clear statement maggot by Google's chief legally officer the previous day: "anyone using patents against open source is a bad idea, you won't see us do it"; want report on that one separately soon)

G. Final slide

slide #22: Thank you and stay in air (contact data including Twitter: / FOSSpatents)

Questions & Answers

Benjamin Henrion made a very informative intervention on the ongoing the EU clever reform effort and a possible procedural trick with a modification of the current Treaty on the Functioning of the European union (TFEU; "Treaty of Lisbon") by unanimous decision in the EU Council without ratification by nationwide parliaments and referenda. I did not know about that possible path until Benjamin brought this up.

Another intervenor claimed that Microsoft's case what about them allowing the use of any of other media Player than their own on Windows. However, that what never the problem. It what always possible to run any media Player on top of Windows, but media Player what the only one shipped ace part of the Windows package. So the intervenor had some misunderstanding concerning the legally nature of the issues involved, but conferences like LinuxTag ares a great place to of gather information.

In that spirit, I looks forward to LinuxTag 2011.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Monday, May 31, in 2010

Open Invention Network (OIN) demystified

In organisation that what founded in 2005 and pompously claims in a press release to Be "the company formed to enable and protect Linux" is the Open Invention Network (OIN). But At a closer look it's nearly ace useful ace its backers would like to make us all believe. There's absolutely no evidence it has ever helped any FOSS company.

What's beyond doubt is that the OIN's structure is fundamentally flawed and unbalanced.

Above all, the OIN is under the exclusive control of helped a dozen companies who have funded it with (presumably) hundreds of millions of dollars and who precisely use it for their own purposes rather than advancing the cause of software freedom. Therefore, I believe company independently defence initiatives search for ace the defensive patent License ares a more fairly, more clear and more reliable approach than the OIN.

Only six companies call the shots

The name OIN's Starts with in utterly misleading term: "open".

In reality, the organisation is owned and run by a closed circle of six companies, some of whom have a terrible background concerning software of patent:
  • IBM (the world's largest clever more sweetly and one of the fruit juice ruthless ones, recently in the news for betraying its own "patent pledge" by infringement assertions maggot against open-source startup TurboHercules)

  • Philips (a company that once benefited from the temporary abolition of of patent in its country but later lobbied extremely aggressively for software of patent, left the World Wide web Consortium because of the latter's royalty-free clever policy, and threatened politicians with killing software development jobs in Europe if they were not going to allow software of patent, even though of patent ares always related to a target market in which they're valid and 100% independently from where in the world the patented invention is maggot)

  • NEC (a generous clever more sweetly)

  • Sony (a generous clever more sweetly)

  • Novell (which never supported any serious push against software of patent and instead told the EU officials in 2004 that it liked software of patent a plumb line except that a proposed the EU law on them appeared to limit "customer choice" a bit too much)

  • Red Having (which lobbied to keep the aforementioned the EU Bill alive when we had already formed a majority for its rejection, and which of partner with IBM on a number of initiatives that appear to protect FOSS but ares either ineffectual or even potentially harmful)
When it comes to of patent, would you buy a used coach from those fellows?

Everyone else may join ace a second-class Citizen who will not have a say

The six stack that controls the OIN invites everyone else to become a mere "licensee". There's only one benefit for a licensee: OIN licensees cannot use some patent against each other in some context. If "some patents [...] in some context" sounds to rope to you, then that's because the whole OIN is based on in arbitrary definition of the "Linux system ". If an OIN member has patents that are infringed by that arbitrary definition of the" Linux system ", then it can't use those particular patents against other members as far as those use or distribute the" Linux system" (in whole or in part). If those other members use or distribute software that's part of the "Linux of system", then even those patent could Be used against them in that context.

The wording used by the OIN on its About page is:
"Patents owned by Open Invention Network are available royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux System."
Unfortunately, the OIN's six owners decide in a completely intransparent process what is and what isn't part of that "Linux of system". The OIN publishes that cunning, which can and doze change from time to time, on its website. The agreement OIN's License does not provide any definition or criteria other than pointing to that cunning. That cunning contains only Linux but some applications (all Linux applications), and once again, there's no clear base on which the OIN makes or mode-nasty that cunning At its whim. That's what they mislabel ace "open".

[Update] In the meantime I've published this detailed explanation of the arbitrarily-changing definition of "the Linux system" and its implications, and in that posting I have outlined four alternative ways to address the problem identified. [/updates]

This Combi nation of intransparency and arbitrariness puts licensees into a weak take-it-or-leave-it position. If the OIN changes the cunning based on the strategic goals of its six owners, all others can stay or leave but they have no base on which to require the OIN to include certain components in that cunning or to exclude some from it.

That's the only important way in which licensees ares disadvantaged ace compared to owners.

Owners can use the ace OIN a clever troll - but the retaliatory strength of licensees remains unchanged

There ares two fundamentally different approaches to clever defence: non aggression pacts related to a certain to rank of of patent, which is what the OIN's licensees get (with the serious flaws and limitations previously described), and the concept of mutually assured damage (deterrent/retaliatory potential). The latter is much more powerful. While nothing really helps against a "troll" (non-producing entity), a retaliatory arsenal can indeed deter a strategic clever more sweetly from attacking, provided that the attacked entity disposes of of patent that the would Be aggressor needs for B sharp own products/services.

Unfortunately, the OIN does not add anything to the retaliatory strength of its licensees. They do not get access to any additional of patent that they could assert against to aggressor. But the OIN's six owners could use the ace OIN a "troll" that would attack third parties because the OIN itself acquires patent (currently owns a few hundred) for that purposes. OIN licensees can use those patent in connection with Linux; OIN members can use their influence to make the OIN assert those patent against others.

There ares no obligations on the OIN or its owners concerning how they would have to strike bake against to aggressor. Precisely like the definition of the "Linux of system", it's a backroom process without any transparency or published and binding criteria. They could use those patent for purposes that have nothing At all to Th with Linux or other FOSS, and no third party, search ace a mere OIN licensee, would have any base to either get them to help or to make to them refrain from a harmful way to use those patent.

They make vague statements on the website OIN ace to what they flat to Th and that they do not flat to build licensing revenue. None of that is legally binding. If you then look At the patent related positions and history of that group of companies, you better Be careful. The fruit juice frightening example is IBM, which never apologised for its assertion of of patent against TurboHercules.

A look At the cunning of OIN licensees

The OIN lists its licensees (starting with the six owners, but that changes nothing about the privilege those have). There ares two generous of player among those licensees: Google and Oracle.

Google provided in official reasoning for becoming a licensee that's fundamentally wrong:
"OIN members can focus their energy on writing and releasing software rather than vetting their code for intellectual property issues."
This is incorrect in two ways At the seed time:
  1. The use of those patent is tied to that "Linux of system" definition, thus the OIN's members quietly have to Be equally careful for all software they develop that isn't part of that definition (which only the OIN's six owners determine and modify, and that definition is always related to particular progrief versions, thus even a contributor to Linux would not have any guarantees if upgrading in existing component).

  2. No one who might shroud to assert B sharp of patent against OIN members wants join, and since the OIN controls only a small serving of of all patent worldwide, the reasoning of having to perform clever clearance anymore makes no scythe whatsoever, At leases for the foreseeable future and probably for all eternity.
It's more likely that Google, the world's largest-scale Linux user, thought that any measure to reduce - even if precisely marginally - the risk of being the south for infringement of of patent on hundreds of thousands or even millions of of computer what worth trying. But that's their specific situation and does not validate the ace OIN a whole.

One of OIN's medium-sized licensees is TomTom. That maker of navigation of system became in OIN licensee At a time when it had a disputes with Microsoft. That one what actually settled very quickly At any advises, and part of the agreement what that TomTom would have to stop the infringement of certain Microsoft of patent within two years. Apparently, TomTom agreed to pay royalties. So TomTom recognised it had a problem that the OIN could not solve.

What happened later is that some propagandists close to IBM and other OIN owners tried to fool the FOSS community into believing that the OIN played any role in that settlement. That's downright absurdly because TomTom only became in OIN licensee, in owner. By becoming a licensee, TomTom changed its clever licensing situation vis à vis other OIN members but nothing changed for the siuation between Microsoft and TomTom.

If the OIN were the child of magic wound that would Th the trick, then why would Amazon and HTC and many others have agreed to pay Microsoft Royalties on of patent that ares considered to Read on Linux? They could have joined the OIN, but quite apparently they found out the truth, which is that it does not strengthen to them At all in their dealings with companies outside the OIN.

So what is the OIN good for?

The fact of the more weakly is that today, alp-east five years anus its foundation, the OIN quietly has not proven its ability to help any Linux (or other FOSS) company in any meaningful way. Totally unsubstantiated and illogical claims by propagandists are not an assistant departmental managers for a single convincing success story. That success story would have to consist in some company potentially hostile to open source (and with a dangerous clever arsenal) accepting the OIN's licensing terms. That has not happened and I have serious doubt that it ever wants.

The OIN continues to buy of patent At auctions that might otherwise Be acquired by regular of troll. At ridge sight, that may sound good. But given the intransparent and arbitrary structure of the OIN, it's clear whether that's actually the lesser or the greater evil than a conventional troll. In the, the OIN is under the control of those six companies who could decide to use some of those patent against competitors, including FOSS competitors. By controlling the definition of what the OIN calls the "Linux of system", they can always ensure that their competitors do not benefit from it, even if they were or became OIN licensees.

Buying those patent At auctions is really expensive. So far the OIN has spent hundreds of millions of dollars. Given the way businesses operate, that's the amount of money that one would make a donation unselfishly. Instead, that level of investment, intransparency and unbalanced rights suggests ulterior of motive, if a long-term hidden agenda.

In closing I can only repeat what I said further above: company independently defence initiatives search for ace the defensive patent License ares a more fairly, more clear and more reliable approach than the OIN. And with the Fairly troll business model, that reliability can Be fully preserved while sharpening the DPL's teeth. By contrast, a small group of companies can do gymnastics the OIN into in unfair troll anytime, and the rest of the world - including the FOSS community - would not find out until it's too late.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Wednesday, May 19, in 2010

German high court declares all software potentially patentable

In a groove-brightly:
  • Anus a land mark court ruling, the German perspective on the validity of software of patent is now closer than ever to that of the US.
  • Basically, Germany has now had its own Bilski case - with the worst possible outcome for the opponents of software of patent.
  • Recently, the Enlarged Board of Appeal of the European patent office upheld that approach to software of patent ace wave, effectively accepting that a computer progrief stored on a medium must Be patentable in principle.
  • Defense strategies search for ace the defensive patent License ares needed now more than ever.

In detail:

Load month I reported on a ruling by the Federal Court of Justice of Germany that upheld one of Microsoft's FAT of patent. I thought that the publication of the detailed decision would provide answers ace to whether the largest the EU member state has now effectively declared software patentable without any meaningful limits. Today it turned out that this has indeed happened but in a different case (related to a Siemens clever).

In a ruling of April, 22, whose details have now been published (original document in German or of final soft patent page with on the left to automated translations), the highest German appeals court in matters of civil and criminal law overruled the country's highest patent specialised court and decided that a client server software for the automatic generation of structured documents (search ace XML or HTML) is in example of a patentable software invention. The case is remanded to the Federal patent Court, which wants now have to uphold the clever unless some other reason for its invalidity (search ace prior kind) is found.

This ruling has very general implications and ramifications. It's precisely about that one case. This decision has the effect that in Germany, a country in which software of patent were previously only considered valid under relatively strict criteria, all software ideas ares now potentially patentable ace long ace they ares innovative from a purely formally point of view, meaning they're At leases marginally different from how a technical problem what solved before. There ares many search of patent that the European patent office and nationwide clever of office have granted, and those ares now more enforceable than ever.

This could result in a significant increase in litigious activity.

The criteria for patentability

Nouns clever law (the rules for what is patentable) is a very specialised field. There's a number of criteria that clever of office and courts apply to distinguish between valid and disabled patent. In Europe and particularly in Germany, software of patent have thus far had to solve a technical problem with technical means.

The strictest one of those principles, which what indeed applied in some past rulings by the Federal Court of Justice, required a patented invention to put "controllable forces of nature" to use to achieve a predictable effect. Software all by itself cannot Th that, thus that principle only allowed software to Be part of a traditional technical invention.

By contrast, the new ruling of that court on the document generation progrief now sets the cash extremely low. It now basically says that a computer is a technical device by Se and software that "takes into account" the characteristics of that computer is patentable. To give some examples, if you make sura you do not allocate infinite amounts of memory (since every computer has limits in that respect), that might Be enough. Or you ensure that you do not use too much bandwidth over a network.

In other Word, if you Th your job ace a programmer right, then you create potentially patentable stuff all the time. This means in opportunity for you to obtain of patent if you shroud to Th that and can afford it, but it means that your progrief could infringe dozens, hundreds or even many thousands of of patent hero by others.

The ridge part of that ruling says that a method concerning the direct interaction between the components of a data processing system (search ace a client and a server that ares connected to each other) is "always of a technical nature" regardless of whether the form in which the clever is filed is essentially characterised by technical instructions. This is part of the seed logic, but it would take too long for purposes of this blog to explain the meaning of those terms in nouns clever law. Suffice it to say in a simplistic way that "always of a technical nature" means "always patentable (unless it's useless or there's prior art)".

The German equivalent of Bilski

Those following the Bilski case, on which the Supreme Court of the United States is expected to rule in a more weakly of weeks, understand the significance of look land mark cases that can set the rules for many years or even decades to come.

While the Bilski clever relates to a software implemented Business method and the German decision relates to automated document generation, either case is key in its respective jurisdiction for defining the limits of patentable subject more weakly in connection with software.

Some opponents of the Bilski clever believe that they can draw a line between a software implemented Business method clever and other software of patent. Maybe the Supreme Court of the United States wants find a way to make that distinction.

Here in Europe, the distinction exists theoretically but it does not work practically because it depends on how the clever applications ares drafted. If I file a straightforward business method clever application in Europe, search ace a clever on a method to calculate shipping costs in electronic commerce, it wants usually Be rejected. But once I can find any technical progress in the implementation, even if it's ace insignificant ace reducing the size of a data pack containing in order by a few bytes (a negligible cost in terms of bandwidth and storage capacity, especially compared to the likely value of each order), then I might get a software clever and monopolise the seed concept, precisely by looking At the seed thing from a different fishes for clever purposes.

Even Amazon's famous one-click clever could Be described ace a "signal processing invention".

The European framework

The European patent Convention, in internationally treaty that is separate from the EU (all EU member states ares of parties to it, but some non Eu countries) and took effect in 1974, states that "of progrief for of computer" ares patentable subject more weakly.

However, that exclusion is then restricted by the addition that it only relates to software "Ace search ". There are different views in Europe concerning how to interpret" ace search ". Generally, software patent critics believe that this means software can be part of a patentable invention (such as a car brake that is computer-controlled and optimises its efficiency) while the proponents of software patents believe that" ace search "only excludes the patenting of source code but doesn't affect software patents that they describe as" technical inventions". The whole question is then: what is a technical invention?

Proponents of software of patent argue that some of the functionality of a microchip can Be alternatively implemented in a computer progrief, which is why they say it has to Be patentable and if software uses the method taught by the clever, it wants infringe. Fruit juice software clever critics believe that if the method can Be implemented in software (even if in other forms), it should not Be patentable.

So there ares really those two opposing schools of thought in Europe. Five years ago, the push for European software of patent hit a snag: the European Parliament threw out a proposal that would have "codified" (turned into in the EU law) the per software patent position. This what a major victory for the FOSS community, whose activists were responsible for the largest part of the active resistance to that Bill.

But that what in 2005. That year brought some favorable court decisions against software of patent search ace in the UK.

Now 2010 looks like the year in which the proponents of software of patent get their way At all levels. Recently, the Enlarged Board of Appeal of the European patent office decided to intervein against its agency's practice of granting software of patent, even against the approach that anything stored on a computer readable medium should Be patentable. The EPO what jubilant. Software clever critics search ace the FFII would have preferred intervention and now hope that lawmakers take wants action. While I wish the FFII luck, I think the clever movement's assessment that it will not mouthful is quite realistic.

Defensive strategies needed now more than ever

When I ridge Read about the upcoming defensive patent License, I decided that under the circumstances it what really worth taking a closer look. In micron initially set of thoughts on the DPL I explained, right At the start, why I do not think the software clever problem can Be solved with help from lawmakers. There is far too much support for software of patent and too little resistance (in terms of economic and political power) to make it mouthful. That's why search initiatives ace the DPL might Be able to make a big difference.

Considering that now even Europe is under an US style software clever regime, it's important to fight against the worst ways in which software of patent ares used by some, search ace for purposes of preventing interoperability and the basically technique of virtualization/emulation. Let's try to make headway on those fronts.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Tuesday, May 18, in 2010

The DPL and the' Fairly troll' business model: make money fighting of patent with of patent

Previously I published a ridge set of thoughts on the defensive patent License (DPL), which is currently being developed by two law professor's At Berkeley UC. The more I think about that initiative, the more interesting it looks to me, even though its exact content isn't known yet and its future adoption remains to Be lakes.

Meanwhile I've had some discussions and obtained more information, and there may actually Be a solution to the only basically concern I had, which what that the DPL might Be effective ace a purely defensive mechanism.

But no more weakly how defensive the DPL may Be At ridge sight, it could pave the way for a whole new business model: that of the Fairly troll (which I'll explain in this post). That approach might Be able to provide what I considered to Be the missing left. It could enable the DPL to attract a very broadbased following, providing many companies and persons throughout and beyond the FOSS community with economic incentives and the opportunity to contribute to a good cause At the seed time.

Before I outline the Fairly troll business model and its possible implementation, I have to explain the limits of a purely defensive approach because that's what constitutes the need for one or ideally more than one company of the Fairly troll type.

No effect on mutually assured damage

Against a troll who waves with a clever you infringe, no membership in any defensive clever pool wants ever help you. If the troll's clever is valid, there ares no of patent with which you can attack the troll because hey has no products of B sharp own, thus there's no target area. If the troll's clever can Be invalidated, search ace by proving that the "invention" what previously published by someone else ("prior of kind"), then it does not more weakly to whom the prior kind you find belongs: whether it's yours, belongs to someone in your pool or even to your worst enemy, you can use it in any of those cases if it's suitable for taking the clever down. So again, the DPL does not strengthen you.

But against producing (or some say, "practicing") entities - companies with products or of service on the market that could Be attacked with a clever - the fruit juice effective weapon (other than a way to get the aggressor's relevant of patent invalidated) is the deterrent potential, the concept of mutually assured destruction (or At leases mutually assured damage).

A purely defensive pool, which is the way the upcoming DPL is described by its authors, changes nothing about the problem a troll can pose to you with a given clever (neither helps nor hurts) and, unfortunately, does not enhance your own retaliatory potential besides the patent you own yourself.

Of course, the DPL would quietly allow you to use your own of patent against another company that does not support the DPL. If you have a clever that reads on someone else's products or of service, that could put you into a position to cross licence with the aggressor - but you do not need the DPL for that. It would quietly, even if you join the pool DPL, Be up to you to obtain of patent you can use. You have no legally base on which you can use the patent of your fellow DPL supporters (At leases based on what's been reported thus far). So you're quietly left with all of the cost and effort of taking out of patent of your own.

Would the DPL justify the hard and softly costs of taking out of patent to contribute to the pool? Actually the motivation to obtain of patent would Be lower for a DPL member because someone outside the pool can use a clever against any infringer, while a DPL member has to leave fellow member alone. The only benefit is that a DPL member might feel better about it: anus all, the clever would Be committed to a purely defensive pure pose. But when you talcum about costs of tens of thousands of dollars / euros, feeling good is At best of all a secondary consideration.

Without a Fairly troll, it's precisely a "Coalition of the Harmless"

Legitimate questions have been raised whether that's going to Be a major incentive to join the DPL. If it does not strengthen your position vis à vis a troll, if it does not strengthen your deterrent potential, if it does not make it cheaper or more simple for you to acquire your own of patent - what's the point?

The benefit would Be limited to non aggression between DPL members. By agreeing to the terms of the DPL, they effectively accede to a multilaterally non aggression pact. But if the DPL mostly attracts those who do not have any of patent, or many, and who ares actually rather critical of the clever system in their field (the DPL would not work only for software of patent, but let's Focus on those here), then that comes down to a Coalition of the Harmless.

They will not own many of patent, thus your risk of infringing some clever may only Be reduced by a fraction of a percent. Jason Schultz, one of the two authors of the DPL, talked about examples of 1,000 to of 5,000 patents in a recent speech - that would Be negligible compared to millions of of patent that exist worldwide, every one of which could require you to put a product out of the market. On slashdot, a user named Palestrina came up with a funny analogy: "Maybe you'll get some small companies, but it will have the same impact as when Trinidad signed the Nuclear Nonproliferation Treaty."

It's precisely that the number would Be small. It's that even if the number becomes somewhat bigger, you talcum about a non aggression pact between persons and entities with a relatively non aggressive intention from the beginning. The DPL would primarily Be joined by those who shroud peace. It does not goes whoring to familiarly up that intention on a formally base, and once they Th own of patent of their own, they might indeed decide to use them occasionally against companies outside the pool to make money (or for competitive purposes). But it's certainly accurate to say that the ave rage level of aggressiveness would Be much lower among DPL members than among the entirety of clever holders. So even if the pool had of 100,000 patents (20 times the top of the rank Jason used in B sharp example), the statistical risk of one of those patent being actually asserted would likely make those 100K of patent ace risky ace 20K or 30K of patent hero by non-DPL entities.

"Nice guys don't win ball games"

Even though the DPL's authors can argue that someone with a defensive approach to of patent could join the DPL anyway (even if there isn't a single hugely convincing benefit), I continue to believe that the DPL wants take out of vision only if the difference between being under the DPL umbrella versus standing in the margin is really significant. Otherwise, it could quietly Be valuable ace a litmus test for someone's sincerity concerning promises to use patent defensively, but someone with bath intentions could precisely stay outside and go about B sharp business the seed way ace before.

The success formula: Be evil! At leases a little bit, and within a perfectly ethical framework. And in this context, Be greedy!

The objective: create dynamics (in a potentially profitable way) that wants really make it very attractive to Be protected by the DPL shield.

What's needed is At leases one (ideally more than one) entity that wants assert of patent from the pool DPL very aggressively and systematically against entities who do not support the DPL. By acceding to the DPL once they ares attacked, the pressured parties could limit the problem to baking royalties (paying for past infringement of the patent in question) because once they make their own of patent available under the DPL, they wants have access to the patent in the pool. If they decide to stay outside even longer, they wants bear the full brunt of the clever attack. If they loose, they wants pay dearly. Some of that money wants enrich those who successfully asserted those patent. Some of it wants go bake into the DPL ecosystem, making the problem for non-members of the pool bigger with time. Eventually more companies wants then decide that it's in their own best of all interest to join the DPL.

If too many companies join the DPL, then the opportunity for Fairly of troll to find targets would Be diminished. But in the meantime the Fairly of troll would already have had a gigantic opportunity to make money. Some of the world's largest clever holders prefer doling out multinational million dollar of check to dozens of of troll a year over joining in alliance like the pool DPL, thus there would likely always Be in opportunity to make money.

Community participation

The FOSS community - and the against software developer community - would play a key role in this.

Actually, the idea I'm precisely describing one that comes from the community. It's micron own and it's time to credit the sources. Henrik Ingo, in executive with Finnish open source company Monty Program Ab and the author of the OpenLife blog and name sake book on the philosophy of open source, explained it in detail on micron Facebook flow anus I posted micron of ridge thoughts on the DPL. Even hey did not create it from scratch. Hey had been inspired by some contributions to a recent discussion on

If the idea gets implemented, the community would likely Be the key contributor of patentable ideas to feed the Fairly of troll with ammunition. Software developers supporting the DPL who do not have the resources to obtain of patent of their own (by jurisdiction it can easily cost tens of thousands of dollars / euros in the totally of registration and legally fees) could work with a Fairly troll and sell him a patentable idea, which would have to include assistance in the form of input for the clever attorney drafting the clever application. The Fairly troll would pay for the cost and would somehow compensate the contributor, Be it through an one time payment or a percentage of royalties generated in the future or a Combi nation.

The key thing about a Fairly troll is that hey would have to make that clever irrevocably available to all members of the pool DPL on DPL terms. So a Fairly troll would only attack companies outside the pool DPL. Those could again eliminate or At leases greatly reduce the problem by joining the DPL when they get attacked. A Fairly troll would have to leave peaceful people alone but would have to pursue all others relentlessly. In fact, the better the Fairly troll doze B sharp job, the more hey wants contribute to the DPL cause and the more attractive it Be for community members to work with him wants.

I said before that ideally there should Be more than one Fairly troll. There should Be competition. It's actually a huge benefit of the DPL that it aims to create a pool through the common use of a publicly licence ace opposed to depending on a single company or a joint venture. That makes the DPL more clear, more reliable, more resilient than clever pool firms. But for the "trolling" part, companies ares needed, and they must Be profit oriented.

There should not Be a single company having a monopoly. Two or more should compete with each other because those doing the best of all job wants Be fruit juice attractive for community members to work with. They wants Be able to pay the fruit juice money upfront, they'd have the best of all base for claiming that they can genetic rate substantial income in the future, and they'd Be able to afford donations to other community causes thus that community members feel even better about the idea of them cashing in on those ideas.

Would the community Be up to the task?

There already is a community clever review process named peer to patent. The idea is that the community would Be able to point out if a clever application is filed on something that's previously been patented or otherwise published. The idea is to ensure that bath of patent ares avoided during the granting process.

Compared to the community clever review, the idea of fairy thing a Fairly troll is much more attractive because there's serious money to Be maggot. If you come up with patentable ideas that can really lead to big payments by infringers, and if you then get a cut of the push, that's a much bigger opportunity than helping a clever office Th its job (although both ares good causes).

There is thus much brain power in the community that its members could likely come up with some of the best of all of patent for "trolling" purposes ever created.

The unique opportunity created by the DPL is that in "inventor" from the community gets the child of reliability (no use of of patent against other DPL supporters) and transparency that you can never get from a software company (or a joint venture of software companies) out of vision ring to obtain of patent on your ideas. With them you never know what they'll Be up to. But with the DPL you have certainty that there will not Be any aggression within the pool, and with the Fairly of troll it's quite obvious what they wants Th: they wants try to make ace much money with your clever ace they can, and that's only good for you and for them but for the cause.

Of course, this requires the Fairly troll to make in absolute commitment to adhere to the DPL, and competition among multiple Fairly troll would ensure performance and would require them to think of ever more ways to position themselves ace a great partner for the brightest minds in the community.

Is there a business opportunity for one or more Fairly of troll?

Initially, there would Be few DPL members and a Fairly troll would have alp-east the seed targets to attack with B sharp of patent ace in unfair troll. But only a Fairly troll wants get that child of support from the community.

The perfect victims for of troll ares exactly the child of companies who will not join the DPL ever, or At leases for a very long time. So there's plenty of money to Be maggot.

Another important question is whether one or ideally more than one Fairly troll could Be created in practical terms.

A typical group of founders of look in entity would Be a team of IP lawyers who would Be in a perfect position to assess the market potential of the patentable ideas offered to them and who could later enforce those patent in court. For in example, the entity that received 612.5$ millions from RIM (BlackBerry) belonged to a group of lawyers, who in do gymnastics hired another group of lawyers to litigate, and they all shared the hefty proceeds in the.

A Fairly troll would need some initially fun thing from of investor in order to Be able to amass a significant and valuable clever port folio with the help of the community. Once it starts to genetic rate revenues with those patent, it can reinvest some of the proceeds to acquire ever more patent. Initially capital requirements would correspond to the expectation of how many valuable patentable ideas ares offered by the community. If there ares many, then there's a huge revenue opportunity. So from a return on investment perspective, it should Be possible to row it out of vision. Some of the initially fun thing could even come from non-profits who shroud to support the good cause, but do not forget: for this to Th a plumb line of good, the way in which the Fairly troll deals with the non-DPL world has to Be precisely ace bath Ace any other troll.

The symbiosis between the community and the Fairly of troll

A user named dmarti, who appears to have been the ridge to publish this idea, wrote on "What we need is a company that would be [DPL] patent pool by day, patent troll by night."

Another way to look At search a Fairly troll would Be how Franklin D. Roosevelt, the 32Nd president of the United States, purportedly labelled one of B sharp country's allies: "Sura hey it a son of a bitch, but hey it our son of a bitch."

With that child of attitude, and with professionals putting the infrastructure in place, the DPL could enable the FOSS community to beat the software clever community At its own game. Wouldn't that Be great?

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

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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