Subject: Re: A different patent covenant...
From: Brian Behlendorf <>
Date: Fri, 29 Sep 2006 09:08:38 -0700 (PDT)

On Fri, 29 Sep 2006, Rob Cameron wrote:
> This is a very interesting idea.   It has a nice kind of ironical
> twist to it.   It reflects more of an anti-patent stance than an open
> source stance, though.

Is it anti-patent to ask that those who wish to benefit from the monopoly 
rents granted by government via the patent system also be the ones to bear 
the costs of patents as well?

> I still think there is merit in trying to create an equation between
> FOSS and systems that promote the "progress of science and
> useful arts."

Clearly, there has been no lack of innovation from Open Source despite the 
lack of patents to protect those innovations.  There are a myriad of 
reasons one might innovate; a patent is just one possibility.

> One problem of your covenant for IC's business is that embedded
> network applications like XML appliances are a natural area
> where high-performance text handling matters.    Proprietary
> but patent-free competitors would get a free ride.

Those competitors in the marketplace would have a tough time without 
partnering with larger companies with distribution channels who are more 
likely to have patents they wish to protect.  Perhaps we could define 
"entity" to include those other partners.  For example, we could bind not 
just the entity creating the product implementing your patent, but also 
any owners of that entity whose share is equal to or greater than 25%. 
That way if, say, Dell, Fujistu, and Flextronics did a joint venture where 
each controlled a third of the entity that created some XML processing 
appliance, where the JV itself held no patents, we could bind those three 
companies to the covenant... meaning they would likely choose commercial 
licensing from IC.