Subject: RE: Patent-based dual-licensing open source business model
From: <stephen@xemacs.org>
Date: Sat, 16 Sep 2006 17:40:38 +0900

Lawrence Rosen writes:
 > 5. Patent claims are (sooner or later) published for all to see. In our
 > case, we promise to disclose in the same ways that other academic work is
 > disclosed, openly, for peer review and public comment. There need be no
 > surprises. 

Describing what you will do is not really responsive.  From my point
of view, as an individual act, this is remarkably generous.  I believe
you guys are out to do good here, and I'm sure you'll succeed in
stimulating some open source development at least.

But you're talking about setting up a framework.  Frameworks can be
abused, and for some lawyers, it's their job to abuse them.  So the
question is, suppose someone is out to write a "bad" patent, or acquires
one from a 3rd party.  Does this covenant provide opportunity for new
forms of abuse, or new cover for old ones?  More likely, how is this
kind of arrangement likely to "violate" the expectations of the
community?  It's that kind of revelation that's going to undermine
trust most if it comes from somebody other than you.

This is a good place to repeat a question I asked earlier: wouldn't it
be a good idea to have a clause in the covenant requiring that any
qualifying open source software have a pointer to the patent and the
covenant in its documentation?

 > 7. Finally, don't think that a patent infringement lawsuit is always easy on
 > the patent owner. You see a relatively small (but unfortunately growing)
 > number of infringement lawsuits. What you don't see is the larger number of
 > "cease and desist" letters that are simply thrown in the trash and not
 > followed up because the cases are weak. :-) What you do see are the
 > complicated cases, the ones where there is a meaningful dispute worth
 > fighting about. 

Yup.