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.
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.
Red Hat has followed this concept and strategy in building its own patent portfolio, yet we married it with our Patent Promise to the open source community to assure that the community wasn’t threatened by our assembly of a portfolio of software patents. However, it takes time to build a patent portfolio (the average time from application to issuance of a software patent in the United States is more than four years), and what our company obtains is not necessarily available to protect other parties. Moreover; one company doing this does not tap the extended network of open software developers.
That need to engage others in the process of obtaining patents to protect the open source community is the reason I called for the formation of an open source patent commons in my Red Hat Summit keynote in June of this year. At LinuxWorld Expo in August, the Open Source Development Lab (OSDL) joined this call. Let’s examine these two efforts.

Commons in Common?

Under my proposal, the Fedora Foundation provides funds and resources to prosecute patent applications on software inventions submitted by open source developers. Developers are invited to assign their invention ideas to the Foundation for submission to the patent office. In return, if the patent issues, the Foundation makes it available to the open source community under a commitment similar to Red Hat’s Patent Promise. At the same time, the Foundation will cooperate with OSDL and other open source foundations to build a network of such patents that can be used as a defensive shield against those who choose to assert patents against open source projects. Stay tuned to the Fedora Project website (http://fedora.redhat.com/) to learn more about this effort.
The OSDL effort appears to be a bit different, but it still has merit. OSDL is not necessarily going to help developers obtain patents. Rather, if those who have already obtained patents wish to contribute them to an open source patent commons, they may assign their already issued patents to OSDL. Of far greater significance is OSDL’s proposal to build a repository of information on patents that have been made available to open source developers and on corporate pledges to not assert patents against open source. You can learn more about the OSDL proposal at their website at http://www.osdl.org/newsroom/press_releases/2005/2005_08_09_beaverton.html.
At the same time, at least one major open source supporter has offered to make resources available to open source developers and foundations to pursue similar efforts, which leads to the next point. It would be best if the commons is made up of a network of organizations holding patents, not just one or two entities. This approach would help assure broad protection, while also assuring that no one party or group of parties dominates the commons.
Some additional advice to those interested in participating:
1.Do not assume that your idea isn’t novel. Unless you already know of a patent that covers your specific idea, let the patent attorneys determine its novelty.
2.Do not assume that your idea is obvious. You’d be amazed at what isn’t considered obvious in the software field.
3.While it’s worthwhile to come up with ideas that extend open source projects, the best defensive patents are the ones that go to the technology of those parties who would threaten open source. Remember, you are trying to create a deterring effect.
4.Finally, do not be intimidated by the process. Yes, it takes some work, but patent attorneys can help you channel your efforts so that you don’t waste a lot of time on non-useful documentation. Get the basic idea down on paper. Draw a simple diagram showing how the idea works. Submit it under a non-disclosure agreement (thus protecting you, the organization assisting you with the patent, and the idea). If you are working on an open source project and your idea pertains to something that project is developing, be sure to submit the idea early so as to not delay the roll-out of the new invention.
A patent commons won’t protect against the non-producing entities (the so-called patent trolls) because they are immune to patent infringement counterclaims (they don’t make anything!). But a patent commons has the potential for granting protection to the open source community, hardboring it from those software producing entities who may not have yet embraced open source.

Mark Webbing is Deputy General Counsel at Red Hat, Inc.

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