A Patent Commons
The best defense is a good offense: the best deterrence to a patent threat is a robust patent portfolio that a potentially threatening party may infringe.
Tuesday, November 15th, 2005
Early in my law school experience, one of my classmates kept arguing with the professor over what the law should be. Finally, the exasperated professor advised, “Miss Jones, if you want to argue about what the law should be, get a doctorate in political science. This is law school, and it’s about what the law is! ”
As much as many of us in the open source community would like to see patent law changed to exclude software, we still have to deal with the law as it is today. Barring any major changes, the idea of an open source patent commons comes into play.
A Patent “Arms Race”
The situation with software patents oftentimes reminds me of the Cold War and the arms race (there, now I’ve dated myself). The proliferation of nuclear weapons during that era was premised on the concept of “mutually assured destruction:” if my enemy has nuclear bombs, the best way to deter him from using them is to have nuclear bombs of my own. So the theory went, and it has essentially held true to this time. The software patent situation is similar: the best deterrence to a patent threat is a robust patent portfolio that the potentially threatening party may infringe.
