Tuesday, November 15, 2005

Patent Commons

The Open Source Development Lab (OSDL) launched their Patent Commons reference library today. Key partners in the project include some of the same organizations as the Open Invention Network.

The real genius of both of these projects is their subversive nature; instead of waiting for the USPTO to change, or waiting for Congress to enact meaningful patent reform, these organizations took action, hoping to spur innovation by creating patent pools voluntarily that provide wide access to inventors.

But it isn't yet clear that either of these projects will allow participants to use the pledged patents defensively. By defensively I mean as a weapon of counterattack. For example, a small free-software developer -- let's call him Joe -- writes program Z, using perhaps some technologies from the patents in the Patents Commons and OIN. Company A decides that program Z infringes one or more of its patents that aren't in the pool, and writes a cease-and-desist letter to developer Joe. What can Joe do? If the pooled patents could be used defensively, he could threaten a countersuit against company A for infringement of some other patents in the database (XML patents, anyone?) and hope to negotiate a settlement. If he can't use the patents defensively, he is left to his own devices, which most likely include rolling over and removing his software until he can find a way to rewrite it so that it doesn't infringe, which isn't a very likely prospect considering how many overly-broad software patents are out there.

These efforts are definitely a step in the right direction, clearing large sections of the software patent minefield. Whether or not they expand to include defensive mechanisms and even legal counsel are developments we'll monitor closely.


Anonymous Anonymous said...

Richard Stallman (of the FSF) would like to contact you about this blog (not specifically about this current post), but we can't find any contact email listed. Could you please email him at rms(at)gnu(dot)org.


10:29 AM  

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