OSDL has recently released two documents aimed at helping free software
developers who wish to make use of software patents which have been made
put into a patent commons. They are (both in PDF format):
The Overview document provides a brief introduction to the legal theory
behind patent infringement and talks about the various ways in which people
can get in trouble for using patented technology. The core bit of advice
would appear to be "know what the covered patent provides and do not go
beyond it." Thus, for example:
Another affirmative act that may serve as a basis for patent
infringement liability is improving on patented technology the
alleged infringer is legally entitled to use, yet the improvements
are already patented.
The paper describes just how easy it is to get into trouble, even when
using technology which, it seems, is covered by a patent which has been
donated to the community:
A patent grants the right to exclude others from a particular area
of claimed technology, but does not confer the right to practice an
invention.... If, for example, Patent A claims a method of using a
particular algorithm with a particular type of processor, and
someone legally entitled to use Patent A tries to improve the
scalability of the algorithm so that it can be used with a second
processor, it is possible that a second patent, Patent B, already
claims this improvement. The result is that someone legally
entitled to use the Patent A must obtain a license to use the
technology claimed in Patent B, and an individual entitled to use
the technology claimed in Patent B must obtain a license to use the
technology claimed in Patent A.
Software patents, in other words, are dangerous territory, and even having the
license to use a particular patented technology does not really mean that
using that technology is safe. But we already knew that.
The developer's guide is similar, in that it advocates understanding what
is truly covered by a patent and not exceeding that patent's claims.
Guideline 3: Developers should only use the technology in the way
described in the pledged patents, staying within the scope of
technology claimed. Developers should not assume that patented
improvements to the technology claimed in the patents have also
been pledged to the Patent Commons. Improvements are, by
definition, distinct from the contributed patents and may, in fact,
already be patented by someone else who has not made a pledge to
the Patent Commons. A search of patents for any improvements (when
you know you want to improve upon a pledged patent) is advisable.
It also suggests being clear on how any patent donation might be terminated
in the future. This can only be good advice; a "patent pledge" which can
vanish in the future is not worth a whole lot.
For developers, however, the best information to be found in these
documents may not be quite what its authors had intended. From the
In sum, the more an alleged infringer knows about a patent that is
claiming the technology of a product that she is making, using or
selling, the greater the likelihood that she will be liable for
damages for patent infringement.
Ignorance, sometimes, is bliss. That is why Linus Torvalds discouraged looking at patents
back in 2002:
The fact is, technical people are better off not looking at
patents. If you don't know what they cover and where they are, you
won't be knowingly infringing on them. If somebody sues you, you
change the algorithm or you just hire a hit-man to whack the stupid
The fact of the matter is that all of the discussion in these documents of
"relying on pledged patents" to "innovate safely" is pretty well useless
for developers. A patent pledged for use in free software is much like a
single mine removed from a minefield. It is a good thing, but it does not
make the field much safer to walk across. The existence of the patent
commons does not change the nature of the minefield.
Any developer who tries to "innovate safely" by restricting work to
algorithms covered by pledged patents - while carefully avoiding improving
on those algorithms in any way - will be unable to innovate and will be no
safer. The range of algorithms covered by software patents in the
U.S. (and elsewhere) is astounding; there is no way to write any sort of
non-trivial program without infringing on at least a few of them. The
patent commons will not change that situation in any useful way; it is not
something upon which developers can rely.
Where pledged patents may be more useful is with organizations like the
Open Invention Network (discussed here last week) which can use patents
offensively against those who attack the free software community. But the
real solution is to fix the legal system and - in parts of the world which
do not currently recognize software patents - keep it from becoming
broken. As long as the system empowers and encourages patent trolls, there
will be patent trolls, and a few "maybe safe if you do not try to improve
on them" patents in a patent commons will not discourage them. So, while
the new documents can provide some useful insights into the hazards of
software patents, no developer should, after having read those documents,
feel any safer.
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