Subject: RE: Patent-based dual-licensing open source business model
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Mon, 18 Sep 2006 10:33:59 -0700

 Mon, 18 Sep 2006 10:33:59 -0700
> 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?

I find it difficult to address this topic in terms of "good" and "bad"
patents, unless by that you mean "valid" and "invalid" patents. If so, the
patent and legal system itself, with such ventures as Community Patent
Review, tends to be self-correcting over time. I hope you're not charging
International Characters (or me) with the responsibility to take on that
huge issue by ourselves. We're trying to do *good* even in the middle of a
*bad* system.

As for the value of patent notice, you are right in principle; see 35 U.S.C.
 287 ["Limitation on damages and other remedies; marking and notice"] and
292 ["False marking"]. But open source software developers often aren't
aware of which patent claims they may infringe, nor do we wish to impose
that burden on them. That is why International Characters offer *all* of our
patents, whenever they issue, for open source software and imposes no notice
requirement on open source developers. What notices we require in our
commercial licenses may be another story entirely.

/Larry


> -----Original Message-----
> From: stephen@xemacs.org [mailto:stephen@xemacs.org]
> Sent: Saturday, September 16, 2006 1:41 AM
> To: lrosen@rosenlaw.com
> Cc: 'Free Software for Business'; 'Rob Cameron'; mbeinschlag@rosenlaw.com
> Subject: RE: Patent-based dual-licensing open source business model
> 
> 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.