Subject: Re: IC's patent-pending technology
From: "Ben Tilly" <btilly@gmail.com>
Date: Mon, 25 Sep 2006 19:15:16 -0700

On 9/25/06, Lawrence Rosen <lrosen@rosenlaw.com> wrote:
[...]
> FSB might instead help us understand how such patent claims (assuming they
> are valid) might affect free software businesses.
[...]

Let me just address this point and this point only.

With the license grant as I understand it, this patent cannot be
included in any open source software that wishes to be possibly used
commercially.  That might include being pre-installed on a computer,
sold on a commercial CD, be embedded in a commercial OS, etc.

That means, for instance, that it cannot be included in something like
the Debian project.  Similarly, either because they want to be
included in places like Debian or because they have policies of their
own limiting them (in most cases both), the patent would not be usable
by projects such as Perl, Mozilla, Apache or Open Office.  Any
proprietary competitor to those projects would, of course, be able to
negotiate a license and practice the patent.

Could it actually be used by any free software?  Yes, it could.  For
instance while Perl can't use it, one could put up a CPAN module to do
fast Unicode processing.  However it can't be used by any "big"
projects, and certainly not by ones which try to be consumer-facing.
Once the consequences were fully understood, users of, say, Ubuntu
wouldn't be happy about this.  (I use Ubuntu.)

To the extent that rapid XML processing is valuable, the result is a
resounding negative for free software.  And is therefore negative for
any business that is built on free software.

In my opinion it would be far more useful for free software and for
free software businesses if you, say, gave a license for pure software
implementations in GPLed software.  Sure, some people you want money
from could do an end run around you.  And sure, it still couldn't be
used by a lot of big projects.  But now there is at least the
possibility of using it in useful open source software.  It at least
has a chance of getting into something that is widely used.

And, speaking practically, the makers of a proprietary product will
have more of an incentive to license from you if they find that they
are losing benchmarks against someone that can practice the license
when they can't.  If nobody else is using the technique and their
software is already seen as "fast enough", then they have little
incentive to spend serious money on you.  Sure, you might sell them a
license, but you'll probably get less for it.

Cheers,
Ben