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Patents in an open source world


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Title Patents in an open source world Date 2004.07.26 8:53 Author roblimo Topic

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 ( 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.