Subject: RE: Patent-based dual-licensing open source business model
From: Brian Behlendorf <>
Date: Mon, 25 Sep 2006 20:36:05 -0700 (PDT)

On Sat, 23 Sep 2006, simo wrote:
> On Tue, 2006-09-19 at 15:54 -0700, Brian Behlendorf wrote:
>> I'm not talking about "unrelated" works, I'm talking about scope within a
>> single codebase.  What defines the boundaries of a piece of software, when
>> it's not just one staticly linked executable running on bare metal?  There
>> is complexity here that "patent law" doesn't address.  Even my "clear
>> statement" didn't fix it.  "Smallest portion of code that embodies the
>> patent" might be one way of putting it.  I'd put forth that patent law is
>> even more subjectively enforced than copyright law, so punting to the
>> courts for interpretation is not useful as a potential consumer of the
>> patent.
> Brian, I'm sorry to say that here you show you don;t know how patents
> and patents claims work.

You have my permission to revise the above statement if the below clears 
things up for you.

> It doesn't matter at all where are the software boundaries. It all ends
> up on whether or not your code implement the claim or not, the form this
> code takes does not matter at all, you can rewrite it in 100 different
> languages, and the claim may still be true and covering your code (it
> really depends on how good is the lawyer+customer in writing the patent
> claim, there is a push from the PTO at being as generic as possible so
> that the claim can be as broad as possible).

You completely misunderstand the context, then, of my comment.  Larry's 
proposed business model is that I am compelled to release as Open Source 
the source code to my software that implements the patent.  The boundary 
of what is "software that implements the patent" is thus extremely 
important - is it the entire mesh of different systems within my 
enterprise?  Or is the smallest portion of that collection of systems 
that, when removed, cause me to no longer practice the patent?  I'm pretty 
sure it's closer to the latter than the former, but reasonable minds may 
differ, and the patent holder is always going to be motivated around a 
broad interpretation.  There either was or still is a patent on 
"delivering multimedia objects via a network connection".  There's another 
one on "holding customer credentials and payment information in a database 
so that with 'one click' a customer can order an object from a catalog". 
These are very broad kinds of business patents that a myriad of software 
systems are employed to implement, and where it would be very difficut to 
functionally separate out from the rest of the code.