Re: [Patents] pooling patents for progress and protection

[Peter Vandenabeele <peter.vandenabeele@mind.be>]

On Wed, Jan 01, 2003 at 02:06:41PM -0200, riel@nl.linux.org wrote:
> On Wed, 1 Jan 2003, Xavi Drudis Ferran wrote:
> > El Mon, Dec 30, 2002 at 11:10:24AM +0100, Alexandre Dulaunoy deia:
> > > I will support  the idea only if the current  fighting is lost against
> > > software patents. ;-)
> >
> > Me too.
> >
> > I would even ask others to please delay this discussion possibly
> > forever
> 
> I wish you lots of fun spending your life one step behind reality
> and complaining how you never seem to be able to catch up with the
> system.
> 
> Note that a patent pool would also be useful inside the USA. You
> might not care about the USA now, but you will once you try to sell
> a product to the US and suddenly have to play the patent game...

I see following intermediate conclusions:

1. Yes, in Europe we should fight to limit the impact of SW patents. If it 
   works, this will help those companies that limit their activities in 
Europe 
   and more importantly it will give a signal to other countries that at 
least 
   one major economic block is doing without SW patents. But for my business 
   (embedded), there is in most cases a "technical/physical/material effect" 
   outside of the software that is driven/controlled from the SW, so I even 
   doubt if there is not already a problem with the current status in Europe.
   Also, we are starting to operate outside of Europe (USA), so the European 
   case is only of partial interest for us.

2. On a global scale, we will eventually need to have an association that has 
   large funds and a proper organisation to fight back. It is not enough to 
be 
   "pacifist" and just complain that this is not fair to us. If the situation 
   is what it is:

   - that SW patents are there in a growing number of countries and are used 
     against us (which is very clear from the revealing examples listed on i
     the swpat.ffii.org site),

   - that the system (even if you would deem the concept to be correct)
     is not functioning correctly in its implementation since it denies
     massive amounts of prior art, due to inefficiency or a bias to assume 
     that all patents were correctly granted by default,

   we should _consider_ the option to stop:

   - "giving away" the rights to use/copy/modify/distribute our software to
     those companies that will later use SW patents to sue us

     (I would love to see all the bad guys in these horror stories being
      forbidden to use any Free Software; they would quickly understand
      the value of the system they are attacking; e.g. there are virtually 
      no companies that have not somewhere included parts of BSD code in
      their programs or are using some form of Free SW in their operations.
      Not the least Microsoft that used the BSD tcp/ip stack in their OS.)
      
      (As an example: Why should we give the BSD tcp/ip stack for free to 
      Microsoft, if they do not want to give the right to use the CIFS 
      protocol to certain Free SW implementations ? This is where pacifism 
      ends and realism should start).
     
   - looking for patent-free alternatives and give them away again (again
     with the asymmetry that we cannot use their "inventions", but they can
     still freely use our "inventions"),
   
   but, using the legal system as it is, to:
   
   - protect our works with a more restrictive license, relating to patents
   
   - even patent our-selves the better implementations that we develop
     (I know this may sound as blasphemy, but it may be required eventually;
      by filing the patent-claim, it will also show up more easily in the 
      prior art searched of the examiners))

   and use the money we gain from the cross-licensing of these Copyrighted
   and patent protected works to:

   - keep that organisation running

   - take over the risks that individuals cannot carry. 

   - pay legal fees for patenting certain "inventions" if that would be
     deemed usefull (this idea is arguable)
   
   - pay the legal fees for individuals that are under legal attack.

   - make understand that Free SW is of paramount value to the operation
     of the economy and that is not a good idea to attack it with SW
     patents (we may be more efficient by given the proprietary businesses
     that use SW patents, a mirrored demonstration of how detrimental this 
     system can be to their innovation than just preach in the desert).
   
   Especially sad cases are those where an individual developer is targeted by
   a large company for alleged patent infringement in the program he 
publishes.
   This Association could take over the responsibiliy to publish the material
   that is under attack, so removing the responsibility from the individual. 
The
   association could then go throught regular legal defense with specialized
   lawyers in this field, and of course obey to the outcome of the case, but 
only 
   after due legal course, in which a full argumentation on prior art and 
other
   elements would be possible.

   It will take some time before this organisation will be set-up and it will 
be
   a major challenge to get it organised, but until SW patents are abolished, 
   this will eventually have to be our practical defense.

Peter

> cheers,
> 
> Rik
> -- 
> Bravely reimplemented by the knights who say "NIH".
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