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  <html xmlns="http://www.w3.org/1999/xhtml"><head><title>Patents</title><meta name="generator" content="DocBook XSL Stylesheets V1.76.1"/></head><body><div class="sect1" title="Patents"><div class="titlepage"><div><div><h1 class="title"><a id="patents"/>Patents</h1></div></div></div><p>Software patents are the lightning rod issue of the moment in
  free software, because they pose the only real threat against which
  the free software community cannot defend itself.  Copyright and
  trademark problems can always be gotten around.  If part of your code
  looks like it may infringe on someone else's copyright, you can just
  rewrite that part.  If it turns out someone has a trademark on your
  project's name, at the very worst you can just rename the project.
  Although changing names would be a temporary inconvenience, it
  wouldn't matter in the long run, since the code itself would still do
  what it always did.</p><p>But a patent is a blanket injunction against implementing a
  certain idea.  It doesn't matter who writes the code, nor even what
  programming language is used.  Once someone has accused a free
  software project of infringing a patent, the project must either stop
  implementing that particular feature, or face an expensive and
  time-consuming lawsuit.  Since the instigators of such lawsuits are
  usually corporations with deep pockets—that's who has the
  resources and inclination to acquire patents in the first
  place—most free software projects cannot afford the latter
  possibility, and must capitulate immediately even if they think it
  highly likely that the patent would be unenforceable in court.  To
  avoid getting into such a situation in the first place, free software
  projects are starting to code defensively, avoiding patented
  algorithms in advance even when they are the best or only available
  solution to a programming problem.<sup>[<a id="idp8720592" href="#ftn.idp8720592" class="footnote">34</a>]</sup></p><p>Surveys and anecdotal evidence show that not only the vast
  majority of open source programmers, but a majority
  of <span class="emphasis"><em>all</em></span> programmers, think that software patents
  should be abolished entirely.<sup>[<a id="idp8893504" href="#ftn.idp8893504" class="footnote">35</a>]</sup> Open source programmers tend to feel
  particularly strongly about it, and may refuse to work on projects
  that are too closely associated with the collection or enforcement of
  software patents.  If your organization collects software patents,
  then make it clear, in a public and irrevocable way, that the patents
  would never be enforced on open source projects, and that they are
  only to be used as a defense in case some other party initiates an
  infringement suit against your organization.  This is not only the
  right thing to do, it's also good open source public relations.<sup>[<a id="idp8895104" href="#ftn.idp8895104" class="footnote">36</a>]</sup></p><p>Unfortunately, collecting patents for defensive purposes is a
  rational action.  The current patent system, at least in the United
  States, is by its nature an arms race: if your competitors have
  acquired a lot of patents, then your best defense is to acquire a lot
  of patents yourself, so that if you're ever hit with a patent
  infringement suit you can respond with a similar threat—then the
  two parties usually sit down and work out a cross-licensing deal so
  that neither of them has to pay anything, except to their intellectual
  property lawyers of course.</p><p>The harm done to free software by software patents is more
  insidious than just direct threats to code development, however.
  Software patents encourage an atmosphere of secrecy among firmware
  designers, who justifiably worry that by publishing details of their
  interfaces they will be giving technical help to competitors seeking
  to slap them with patent infringement suits.  This is not just a
  theoretical danger; it has apparently been happening for a long time
  in the video card industry, for example.  Many video card
  manufacturers are reluctant to release the detailed programming
  specifications needed to produce high-performance open source drivers
  for their cards, thus making it impossible for free operating systems
  to support those cards to their full potential.  Why would the
  manufacturers do this?  It doesn't make sense for them to
  work <span class="emphasis"><em>against</em></span> software support; after all,
  compatibility with more operating systems can only mean more card
  sales.  But it turns out that, behind the design room door, these
  shops are all violating one another's patents, sometimes knowingly and
  sometimes accidentally.  The patents are so unpredictable and so
  potentially broad that no card manufacturer can ever be certain it's
  safe, even after doing a patent search.  Thus, manufacturers dare not
  publish their full interface specifications, since that would make it
  much easier for competitors to figure out whether any patents are
  being infringed.  (Of course, the nature of this situation is such
  that you will not find a written admission from a primary source that
  it is going on; I learned it through a personal communication.)</p><p>Some free software licenses have special clauses to combat, or at
  least discourage, software patents.  The GNU GPL, for example, contains
  this language:</p><pre class="screen">
    7. If, as a consequence of a court judgment or allegation of patent
  infringement or for any other reason (not limited to patent issues),
  conditions are imposed on you (whether by court order, agreement or
  otherwise) that contradict the conditions of this License, they do not
  excuse you from the conditions of this License.  If you cannot
  distribute so as to satisfy simultaneously your obligations under this
  License and any other pertinent obligations, then as a consequence you
  may not distribute the Program at all.  For example, if a patent
  license would not permit royalty-free redistribution of the Program by
  all those who receive copies directly or indirectly through you, then
  the only way you could satisfy both it and this License would be to
  refrain entirely from distribution of the Program.
  
  [...]
  
  It is not the purpose of this section to induce you to infringe any
  patents or other property right claims or to contest validity of any
  such claims; this section has the sole purpose of protecting the
  integrity of the free software distribution system, which is
  implemented by public license practices.  Many people have made
  generous contributions to the wide range of software distributed
  through that system in reliance on consistent application of that
  system; it is up to the author/donor to decide if he or she is willing
  to distribute software through any other system and a licensee cannot
  impose that choice.
  </pre><p>The Apache License, Version 2.0
  (<a class="ulink" href="http://www.apache.org/licenses/LICENSE-2.0">http://www.apache.org/licenses/LICENSE-2.0</a>) also
  contains anti-patent requirements.  First, it stipulates that anyone
  distributing code under the license must implicitly include a
  royalty-free patent license for any patents they might hold that could
  apply to the code.  Second, and most ingeniously, it punishes anyone
  who initiates a patent infringement claim on the covered work, by
  automatically terminating their implicit patent license the moment
  such a claim is made:</p><pre class="screen">
  3. Grant of Patent License. Subject to the terms and conditions of
  this License, each Contributor hereby grants to You a perpetual,
  worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except
  as stated in this section) patent license to make, have made, use,
  offer to sell, sell, import, and otherwise transfer the Work, where
  such license applies only to those patent claims licensable by such
  Contributor that are necessarily infringed by their Contribution(s)
  alone or by combination of their Contribution(s) with the Work to
  which such Contribution(s) was submitted. If You institute patent
  litigation against any entity (including a cross-claim or counterclaim
  in a lawsuit) alleging that the Work or a Contribution incorporated
  within the Work constitutes direct or contributory patent
  infringement, then any patent licenses granted to You under this
  License for that Work shall terminate as of the date such litigation
  is filed.
  </pre><p>Although it is useful, both legally and politically, to build
  patent defenses into free software licenses this way, in the end these
  steps will not be enough to dispel the chilling effect that the threat
  of patent lawsuits has on free software.  Only changes in the
  substance or interpretation of international patent law will do that.
  To learn more about the problem, and how it's being fought, go to
  <a class="ulink" href="http://www.nosoftwarepatents.com/">http://www.nosoftwarepatents.com/</a>.  The Wikipedia
  article <a class="ulink" href="http://en.wikipedia.org/wiki/Software_patent">http://en.wikipedia.org/wiki/Software_patent</a>
  also has a lot of useful information on software patents.  I've also
  written a blog post summarizing the arguments against software
  patents, at
  <a class="ulink" href="http://www.rants.org/2007/05/01/how-to-tell-that-software-patents-are-a-bad-idea/">http://www.rants.org/2007/05/01/how-to-tell-that-software-patents-are-a-bad-idea/</a>.</p><div class="footnotes"><br/><hr/><div class="footnote"><p><sup>[<a id="ftn.idp8720592" href="#idp8720592" class="para">34</a>] </sup>Sun Microsystems and
  IBM have also made at least a gesture at the problem from the other
  direction, by freeing large numbers of software patents—1600 and
  500 respectively—for use by the open source community.  I am not
  a lawyer and thus can't evaluate the real utility of these grants, but
  even if they are all important patents, and the terms of the grants
  make them truly free for use by any open source project, it would
  still be only a drop in the bucket.</p></div><div class="footnote"><p><sup>[<a id="ftn.idp8893504" href="#idp8893504" class="para">35</a>] </sup>See
  <a class="ulink" href="http://groups.csail.mit.edu/mac/projects/lpf/Whatsnew/survey.html">http://groups.csail.mit.edu/mac/projects/lpf/Whatsnew/survey.html</a> for one such
  survey.</p></div><div class="footnote"><p><sup>[<a id="ftn.idp8895104" href="#idp8895104" class="para">36</a>] </sup>For example, RedHat has pledged that open source projects are
  safe from its patents, see
  <a class="ulink" href="http://www.redhat.com/legal/patent_policy.html">http://www.redhat.com/legal/patent_policy.html</a>.</p></div></div></div></body></html>
  