Subject: Re: software patents in the wild
From: Ian Lance Taylor <ian@airs.com>
Date: 15 Aug 2005 11:22:55 -0700

Joe Corneli <jcorneli@math.utexas.edu> writes:

> I have a software project that I'm working on finishing up that may
> include features that have been patented.  Should I worry about this?
> 
> Since it seems like people can "patent anything", and have (to the
> amusement to many a slashdot user), I get the sense that any
> reasonably complicated program will contain "patented" features.
> Especially if the idea for the program (or something similar) has been
> floating around in public discourse for a while without any
> implementation.
> 
> If I release the software, should I brace for cease and desist
> letters?  Would I be running the risk of a lawsuit?  Is there
> something I can do to avoid getting in this kind of trouble (e.g. move
> to a far away country and release the code from there)?

I concur that every substantial piece of software violates several
U.S. software patents.  In general there is nothing you can do about
this.

The only saving grace in this absurd situation is that patent holders,
unlike trademark holders, do not lose any rights if they do not
challenge violations.  So you only have to worry about patent holders
who have something to gain by challenging your program.  If your
program does not make a substantial income for you, and does not
remove substantial income from a potential patent holder, then you are
more likely safe.

If you are unlucky enough to get challenged, it's likely that your
only plausible option will be to settle right away.  Mounting a
successful defense against a lawsuit by a patent holder can run into
multiple hundreds of thousands of dollars.

Moving to Europe will at least temporarily be a defense against
software patent lawsuits, but of course your program would not
necessarily be available in the U.S.  And the pro-patent forces
continue to fight to extend software patents to Europe.

The whole situation is completely insane.  Nevertheless, there are
people who sincerely believe that extending patent protection to
software is good for society.

Ian