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Re: Patents again

From: Abdullah Ramazanoglu
Subject: Re: Patents again
Date: Sun, 10 Oct 2004 00:21:57 +0300
User-agent: Pan/ (As She Crawled Across the Table)

begin  <> dedi ki:
> In gnu.misc.discuss Abdullah Ramazanoglu <> wrote:
>> begin  Kari Laine <> dedi ki:
>> A particularly interesting question for me among others is, what is the
>> status of a patented code introduced into a GPL program by the patent
>> owners themselves? Do they automatically give up their relevant patent
>> litigation rights against *all* GPL software base?
> They don't automatically give up their patent rights but if they want
> to be able to legally distribute a GPL program with their code introduced
> into it then they must provide a GPL-compatible license for the patent.
> If they decide to distribute such code without a patent license then
> such distribution is illegal and may count against them if they want
> to hunt down users of their code.

Giving it a second thought it seems that by merely accepting GPL terms
they automatically give up their patent rights against GPL codebase,
though IANAL. But it doesn't end here. What if they indirectly and from
multiple untraceable sources sneak patented code into GPL codebase? It
should be easy to do, at least I can readily think of a couple of ways.

Given 5 or 10 years, those patented codes would be proliferated all over
the place. Now, I don't wear a tinfoil helmet but seeing that even today
the patent issue can attract leeches to GNU/Linux arena, and projecting 10
years ahead where a lot of multi-billion $ conglomerates have adopted OSS
and GNU/Linux to their cores, it's not very difficult to imagine what kind
of events can happen. I guess it is very healthy a practice for OSS, to be
suspectful (not paranoid :) on this issue.

>> If not, then what if
>> some company at this very point is busy inserting a lot of patented code
>> into Linux?
> Then they will be found out eventually and their actions will be
> closely scrutinised.

Probably, if they introduced the code themselves. Doubtful if they used
indirect means.

>> Other questions are,
>> - Should we abstain from getting into patent craze in denial of the
>> concept? Or should we abuse the game by overplaying it, thus rendering it
>> non-applicable, thus cancelling the game?
> I believe that open source companies should get whatever patents they
> can and then license them under GPL-compatible licenses. Then they should
> sell off the rights to hunt down non-GPL (i.e. unlicensed) infringers
> of those patents. Those rights should be sold to legal companies who
> are not interested in cross-license deals and who will extract fees
> out of non-GPL users.

That's it! I don't know how I failed to see this obvious solution in our
disagreement with Kari over selling patents. My primary concern was that
to sell a patent someone needed to own it, and owning it could/would lead
to corruption. But now I gather that a GPL-like patent license should
dismiss this possibility. So, to confirm my understanding, an "Open Source
Patent Organization" (or FSF) can own patents itself, or acts as a central
facilitator for those GPL compliant project owners to get a GPL-like
patent, and license them through a "General Public Patent" license. Any
GPL/GPP compliant project can use the patented code according to GPP, but
others must buy a special right from OSPO/FSF or the relevant patent
owner. This provides for a self-funding patent scheme, while preventing
any chances of abuse. And as an additional good side effect, if a project
is required to be GPP and GPL compliant (as opposed to being just GPP
compliant), it would encourage the projects with other OSS license schemes
to adopt GPL, though I can't see a reason to force a project into being
GPL compliant. Right?

>> - Howto create a self-funding open source patent organization? Other means
>> of self-funding "open patents"?
> By selling off those rights that are no use to GPL users (as above).
> Once an irrevocable GPL-compatible license for a patent is granted by
> the patent holder, it should be possible to sell off the remaining rights.
>> - How to get patents cheap?
> That's the hard one...
> Publishing an idea openly is the cheapest way to kill patent
> opportunities on that idea. It won't earn money but it might stop
> you losing. Provisional patents are cheap but don't last long,
> plus the time spent writing up the patent can be extensive and usually
> requires legal fees which end up costing quite a bit.

There are several ideas about it (though their applicability dubious):

1. If a pending patent is enforcable, then just apply for the patent,
which is seemingly the cheaper part, but don't proceed it. Let it
hang there pending. Only when it's needed in a court case, proceed the
patent to completion.

2. As a non-profit social organization, perhaps FSF may be able to make a
deal with USPTO and gets patents on credit. And pays the debt with what
they get from selling it to commercial users.

3. FSF reserves the right for applying a patent (I don't know how) and
then goes to non-GPL companies who apparently make use of it. Gets them
finance the patent application expenses, the sooner the cheaper.

>> - How about a GPP (General Public Patent) legal document which makes the
>> patent the valid currency, just like GPL makes the source code the valid
>> currency?
> I agree, getting together a standard formula for "how to do ... with
> patents and open source" would be useful. I'm not qualified to put
> together the details of such a formula, best I can do is an overview
> of how it should work.
>> - Whether IBM, RedHat etc. allies getting "defensive" patents is a relief
>> or a threat?
> The more dependent IBM and RedHat are on GPL software, the more
> difficult it becomes for them to turn against the free software
> community. Note that RedHat could be taken over, stripped down and
> any patent assets could be sold, granting a perpetual license to
> the community is the best act of good faith. IBM are very versatile,
> they make good use of Linux but they don't depend on Linux, they have
> lots of other options.

I don't believe that there would be genuine good faith towards OSS in the
commercial world, beyond the front window dressing. As long as they can
make the community to believe that they're friends (as opposed to allies),
why should go that extra mile and give up their "ammunition" away? It
doesn't sound like a good business deal.

So, I'm once again hopeful that FSF would,

- Assume the leadership;

- Prepare a "GPP" which both allows free usage of a patent in GPL
compliant projects, whilst forcing its users to license their own patents
via GPP; (if the latter condition is met, is it really necessary for the
former one? I.e. won't it make sense that even a non-GPL program is
allowed to use a GPP patent on the condition that any patented code in the
project is automatically forced to be licensed via GPP, in turn?)

- Collect patentable ideas from open source developers, inspect them,
patent the feasible ones, and license them via GPP;

- Help those GPL compliant project owners who want to get a patent for
their own ideas, on the condition that it will be licensed via GPP.

- And fund the process by selling the patents to non-GPL companies.

Well, I guess this leaves non-GPL OSS projects out in the cold, but
somehow a compromise needs to be done. Anyway, I personally believe that
it would be better for everybody if number of OSS licenses was reduced,
and OSS projects clubbed around GPL, which provides the best protection
for OSS. We might need that level of protection in the apparently hard
times ahead.

Abdullah        | aramazan@ |
Ramazanoglu     | myrealbox |
________________| D.0.T cöm |__

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