Defensive patents for free and open source software

January 11, 2006 9:27 AM

Defensive patents for free and open source software: can I bind a specific type of license with a patent ?

I started recently to develop a piece of open source software for the average Linux desktop user. However, I seek your help on an issue that has been lurking my mind for a few months now. Let me explain the situation first.

• each day as a linux user makes me more and more paranoid towards any proprietary software corporation, that includes Microsoft and Apple.
• I believe I have created a concept of software that is somewhat revolutionary.
• I do not want this concept to be included into a proprietary Operating System, unless I do it myself maybe, but that's unlikely. Call me selfish if you want ;)
• I do not want Microsoft or Apple to slap me in the face with patenting my own idea and passing it as theirs.
• I am not a lawyer, and I'm Canadian. I have no affinities with the US legal system.
• I usually hate software patents, but I have the feeling that using one would be the only thing I could do to protect myself and my ideals. That patent would need to be filed in the US of course.

Now the real question: is it possible to "bind a patent to a license" ? My idea would be that I would create a patent that would force someone using it to release the said software with its source code, so, from a legal standpoint, if Microsoft was to clone my concept into their software, they would have to make it open source, and then I could worry less.

I know that this sounds really weird and that if I asked slashdot, I would likely get flamed just for the idea of patenting F/OSS. I don't know if this idea is realistic at all, or if I am just in need for a therapy. Could you help me know a little bit more about the "system" without needing to hire a lawyer just to explain me that?

posted by a007r to law & government (5 answers total)

If you receive a patent for your invention, that will prevent it from being used by anyone else without a license. That achieves your goal of "I do not want this concept to be included into a proprietary Operating System."

If you then want to allow open-source developers to use your patent in works under a particular license (say, the GPL), then you can grant a blanket license to use your patented invention in software under that license. Raph Levien has done this for patents that he owns. Here is his GPL patent grant.

However, if you really don't believe in software patents, and just want to simply defend yourself against competing patent claims, it might be better to publish your invention so that you have a strong claim of prior art against any later patents. There are prior art databases to facilitate this.

[Disclaimer: I am not a lawyer.]
posted by mbrubeck at 10:07 AM on January 11, 2006

It's not a worthwhile endeavour, unless you're looking to file the patent for prestige; you can't successfully sue microsoft or apple over a patent unless you have seriously deep pockets.
posted by Firas at 10:09 AM on January 11, 2006

Firas is correct: Applying for a patent is one thing; enforcing it is another. Both will require a lawyer; the latter will require a lot more money. If you are an open-source developer defending yourself against a patent claim you might get pro-bono help from groups like the EFF, FSF, and OSDL. If you are trying to pursue offensive action against Microsoft or Apple, this would probably be less likely.

Also, here's another useful link: The OSDL's Patent Commons is a public pool of openly-licensed patents. They have resources and information for patent holders who want to support the commons.
posted by mbrubeck at 10:26 AM on January 11, 2006

FWIW, when a company like Microsoft acquires a smaller company, they hire a contractor who runs the to-be-acquired source code through a verification process to confirm that it does not include any known open source software.

The consequences of this are:
1. if you publish your code as open source, and the verification people pick up on it, Microsoft will make you rewrite all of your code before they will acquire you.
2. if someone else uses your open source code in a product, and microsoft wants to acquire them, Microsoft will require that the third party remove your known open source code.

Neither prevents Microsoft, you, or a third party from creating a similar feature with different code and using it.

Practically, a modern software developer should decide between one of two strategies: (1) develop open source software, and release it under a strong OSS license like the GPL (2) develop commercial software with the intent to sell it to a larger company or investor. The third option is to keep your innovative idea completely secret so that no one can steal it.

Both options (1) and (2) have large and robust communities supporting them. Unless you are already plugged in to the commercial development world, it can be hard to break in. If you do, you could stand to make some decent money. If you release your code under a GPL type license, then you may gain some attention within both the open source and commercial world.

Finally, try to lose the anger. Angry people are no fun to work with, regardless of whether they are open source or commercial. Anger will generally lead you to make bad decisions based on spite. You will be far more productive if you orient your attitude towards making fistfulls of cash (commercial, though no guarantee that you will actually *get* the cash, it takes a lot of work) or making the world a better place (open source), or some combination of the two.
posted by b1tr0t at 11:41 AM on January 11, 2006

Thanks a bunch for those very accurate comments, it helps. I don't really think I would go as far as that (or maybe the GPL patent grant, then), the software is already GNU GPL. It is not "hatred" that I have, but fear. But we all know that "fear leads to anger, anger leads to hate..." ;)
posted by a007r at 8:30 AM on January 15, 2006