Guides to the patent commons [LWN.net]

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. Specifically:

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 Overview:

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 git.

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.

(Log in to post comments)

proper fix

Posted Apr 17, 2006 20:10 UTC (Mon) by stevenj (subscriber, #421) [Link]

The proper fix is simply to eliminate all patents on software, "business methods", etcetera. The economics of patents never made sense as an incentive structure for software innovation, where a single product can contain thousands of "inventions" and where the marginal cost is essentially zero (so that patent royalties completely change the market).

proper fix

Posted Apr 20, 2006 2:15 UTC (Thu) by jeleinweber (subscriber, #8326) [Link]

For example, we could tweak the patent laws so that they only covered things that permanently rearranged matter. We could call it the "no thought crime" rule :-) New transitors could be patented, but business processes and computer algorithms could not. Wasn't the legal case that orginally started the software patent craze (anyone know the citation) about a software controlled process for curing rubber? That would still be patentable.

proper fix

Posted Apr 26, 2006 17:13 UTC (Wed) by caitlinbestler (subscriber, #32532) [Link]

The current practice is not truly about patenting software, or even truly novel algorithms. In many cases people are getting away with patenting the problem.

Eliminating "software patents" will not solve the problem. It will just move the patented solutions into "hardware", where it can *never* be open-sourced.

We need legislation that recognizes the unique needs of preventing software from being ripped off, while not preventing multiple people from finding the same solution to a problem independently.

One solution might be to mandate that algorithmic patents MUST be available for reasonable non-discriminatory licensing. Secondly, if multiple applications are filed for the same concept before any are published
then which one was first needs to be made irrelevant. The fact that
there are multiple redundant applications should be prima facie
evidence that the concept was obvious and not patentable.

To fix or to self-destruct, that is the question

Posted Apr 20, 2006 9:31 UTC (Thu) by ekj (subscriber, #1524) [Link]

Sure. Absolutely.

At this point every "bad" news about patents is good news for us. And the more horrible the news is, the better.

Ideal would be lots of actual news-stories of the type: "Grandmother sued for $5 billion for using patented tea-and-biscuits serving-technique".

It's beyond ridicolous, the problem however is that it is not yet obvious to the common man on the street (or the common politician in parliament) just exactly how ridicolous the situation has become.

It is LITERALLY true that a system that legally exists in the first place for the express purpose of: "Promoting the porgress of science and the useful arts" actually makes it impossible to write any non-trivial program in a legal way. For anyone. It's just, if you're either large enough to take the hits, or small enough to slip under the radar you migth be lucky and get away with it.

To fix or to self-destruct, that is the question

Posted Apr 27, 2006 12:28 UTC (Thu) by zotz (guest, #26117) [Link]

[It's just, if you're either large enough to take the hits, or small enough to slip under the radar you migth be lucky and get away with it.]

Newsflash... Breathing is illegal, some are being financially ruined and imprisoned for breathing while others skate... Film at 11.

all the best,

drew

Guides to the patent commons

Posted Apr 18, 2006 10:36 UTC (Tue) by hingo (subscriber, #14792) [Link]

Playing the patent game by the rules would be very counter productive for Open Source. Imagine if all Open Source developers would diligently stick to the small pool of pledged OSDL patents.

I think we are witnessing the first time that the volwes are very innocently trying to have their way with the flock of sheep, dressed as one of us. Of course, we have had uninformed "advice" from outsiders before, but the OSDL is not an outsider anymore, even though it is a very corporate entity. They have built a strong good reputation before this. The fact that IBM et al have now let their lawyers loose inside that safe haven, is a new situation. It will be interesting to see how OSDL ends up after this has been handled by the community. On the one hand they are paying for many Open Source core developers, on the other hand they are hard at work going against our core values, ie our core strengths. Will we end up taking their money and ignoring what they say?

While I'm at it: Jon how about making this article free for all? At least I had not seen this before, and your arguments are worth being spread around.