Software patents and free software

Patents, in the field of software, are seen by the free software community as being a problem. In response, various mechanisms have been tried to defuse patents involving software. Some with a degree of success, others have met with debate and derision. These mechanisms highlight the view among vocal anti-"software patent" campaigners that the software patent debate is a black and white issue and that any patent involving or that might cover software is, without question, bad.^[1]

Benefits of free software

If you are violating a patent, the patent holder can ask you to stop using that software or to pay a fee to use that software. With free software, you have the option of removing the patented feature from the software and thus continueing your use of the software. This does not, however, prevent you from having to pay damages for your past infringement of the patent.

Problems for free software

It is quite common for patent holders to licence their patents in a way that requires a per-copy fee, however, obtaining such a licence is not possible for free software projects since requiring mandatory royaltees is not permitted.

Other types of patent licences, such as those with a one-time worldwide payment are acceptable though.

Patent retaliation

"Patent retaliation" clauses are included in several free software licences, including version 3 of the GNU General Public License (GPL). The goal of these clauses is to discourage the licensee (the user/recipient of the software) from suing the licensor (the provider/author of the software) for patent infringement by terminating the licence upon the initiation of such a lawsuit.

The Free Software Foundation included a narrow patent retaliation clause in drafts of version 3 of the GPL. The intent is to prevent users of free software from patenting their improvements upon the software, and then suing the original developers if subsequent upgrades to the free version infringe the patent.

Examples of broader clauses are those of the Apache licence and the Mozilla Public License.

Defensive patent strategy

Corporations with a vested interest in free and open source software developed a means to protect FOSS projects from the threats of patent suits by pooling patents into the Open Invention Network (OIN). The OIN is a company that acquires patents and offers them royalty free "to any company, institution or individual that agrees not to assert its patents against the Linux operating system or certain Linux-related applications".^[2]

The OIN has the Commerce One patents that cover web services, which potentially threaten anyone who uses web services. The OIN's founders intend for these patents to encourage others to join, and to discourage legal threats against Linux and Linux-related applications. Along with several other projects, Mono is listed as a covered project.

IBM, Novell, Philips, Red Hat, and Sony founded the OIN November 10 2005.

References

^ The Dangers of Software Patents, Richard Stallman 2004, "Allowing someone to patent building a signaling machine to display lights to tell a train what to do, okay, I'm not an expert on how to run railways, but such a general patent that would cover what goes on in software would have to be rejected, or else we have to perhaps say we would have to say that it doesn't apply to the software."
^ "Open Invention Network formed to promote Linux and spur innovation globally through access to key patents". Open Invention Network. November 10, 2005. {{cite web}}: Check date values in: |year= (help); Unknown parameter |accessmonthday= ignored (help); Unknown parameter |accessyear= ignored (|access-date= suggested) (help)CS1 maint: year (link)

External links

[1] The Dangers of Software Patents, Richard Stallman 2004, "Allowing someone to patent building a signaling machine to display lights to tell a train what to do, okay, I'm not an expert on how to run railways, but such a general patent that would cover what goes on in software would have to be rejected, or else we have to perhaps say we would have to say that it doesn't apply to the software."

[2] "Open Invention Network formed to promote Linux and spur innovation globally through access to key patents". Open Invention Network. November 10, 2005. {{cite web}}: Check date values in: |year= (help); Unknown parameter |accessmonthday= ignored (help); Unknown parameter |accessyear= ignored (|access-date= suggested) (help)CS1 maint: year (link)

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