Re: Taking a position on anti-patent licenses

[Glenn Maynard <glenn@zewt.org>]

On Wed, Feb 02, 2005 at 12:52:58AM +0000, MJ Ray wrote:
> These licences are not normally so considerate as to limit
> themselves to swpat claims. Even the RPSL, which seems one of
> the less offensive ones, says "any patent". I wouldn't mind so
> much if I only lost patent permission that I didn't need anyway.

Err.  Sorry if I'm being dense, but what type of patent, other than a
software patent, might one claim a piece of software infringes?

(I'm assuming we're talking about "if you claim this software infringes
a patent, you lose something" licenses, and not "if you claim the original
author infringes a patent".)

> In the latter case, I lose the copyright licence in my home
> jurisdiction too.  An offensive patenter could sue my US
> branch about some patent and the branch uses some patent
> (either obtained or a patent not used for software at home)
> to help defend it... it's not hard to see possible ways for
> interactions to go cross-border, thanks to the Berne Union. :-(

I think this is a legitimate problem, even ignoring jurisdictional
issues (which I don't really care about--you're the same company,
as far as I'm concerned, regardless of which branch you're using
to interact with me).

That is, I think it *is* a legitimate use of software patents to defend
against attack from other software patents.  It's not pleasant--no use
of swpats are--but it's one of the only effective ways for an entity
to protect itself.  A company can legitimately want to hold patents
as a defense against patent attacks, and at the same time legitimately
and honestly have no interest in attacking other companies with them.
This is a very difficult situation: no company is going to give a
truly Free license to those patents, since they would render them
useless as a defense (the attacker would be getting a license, too).

Now, a patent license that says "you have a license to our software
patents unless you bring litigation against us, in which case you
lose it" might deal with that: if you attack me, my defenses become
available; if you don't, I can't use them offensively.  (However,
"if you attack *this software*"-style clauses don't do that, since
if you attack my other projects with your patents, my patents on this
work don't become available.)

-- 
Glenn Maynard