[FYI] Patents in an open source world
<http://www.newsforge.com/print.pl?sid=04/07/22/201217>
NewsForge
The Online Newspaper for Linux and Open Source
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Title Patents in an open source world
Date 2004.07.26 8:53
Author roblimo
Topic
http://www.newsforge.com/article.pl?sid=04/07/22/201217
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 (www.rosenlaw.com). 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.
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