[FYI] Patents in an open source world

["Axel H Horns" <axel.h.horns@gmx.net>]

<http://www.newsforge.com/print.pl?sid=04/07/22/201217>

NewsForge
The Online Newspaper for Linux and Open Source
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Title    Patents in an open source world
Date    2004.07.26 8:53
Author    roblimo
Topic   
http://www.newsforge.com/article.pl?sid=04/07/22/201217

Open source appears challenged by patents but that fear is often 
exaggerated. Lawrence Rosen, technology attorney and author of "Open 
Source Licensing: Software Freedom and Intellectual Property Law" 
(Prentice Hall, 2004), offers a calming view of the patent situation. 
He describes reasonable steps we can take to prevent patents from 
interfering with software freedom.  

[...]

Here's a summary of what I recommend:

1. Don't be too paranoid about the patent problem. It's a real 
problem, but not a catastrophe. Any patent owner that tries to assert 
its patents against open source software has many hurdles to leap 
before the royalty checks start to arrive.  

2. Don't try to out-invent the big guys. The open source community 
can't possibly compete in the patent generating business. But we can 
continue to document our own "prior art" to prevent others from 
patenting things they weren't the first to invent.  

3. Conduct a reasonably diligent search for patents we might 
infringe. At least search the portfolios of our major competitors. 
(This, by the way, is also a great way to make sure we're aware of 
important technology advances by our competitors.) Maintain a 
commercially reasonable balance between doing nothing about patents 
and being obsessed with reviewing every one of them.  

4. Design around patented technology wherever possible. The longer 
our lead time the easier this is to do, so do # 3 early in the design 
and development process.  

5. Identify allies who can defend us with their patent shields. We 
have important friends whose patent portfolios might be cross-
licensed under terms that provide additional protection for certain 
open source products.  

6. Withhold our software from those who sue us for patent 
infringement. Choose open source licenses that implement a strong 
defensive termination provision. Support royalty-free patent policies 
by industry standards organizations, and adopt only royalty-free 
standards.  

Lawrence Rosen is founding partner of Rosenlaw & Einschlag, 3001 King 
Ranch Road, Ukiah, CA 95482 (www.rosenlaw.com). Mr. Rosen is an 
attorney specializing in technology, and the author of "Open Source 
Licensing: Software Freedom and Intellectual Property Law" (Prentice 
Hall, 2004). Mr. Rosen is a former computer professional who taught 
programming and managed several computer departments at Stanford 
University. He has served as general counsel and secretary of Open 
Source Initiative (OSI) and as its executive director, and has 
written several major open source licenses. He advises companies and 
individuals throughout the world on open source licensing and related 
legal issues.   

C Copyright 2004 Lawrence Rosen. Licensed under the Academic Free 
License version 2.1.


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