Subject: RE: Patent prior art database
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Fri, 4 Jul 2008 11:09:13 -0700

Stephen Turnbull wrote:
> I'm not sure what you're getting at.  I don't mean at all to imply
> that a FLOSS developer won't come up with revenue-generating
> inventions.  I'm simply trying to define "defensive patent", and point
> out that the reason it's hard to get developers to file applications
> for defensive patents is that they aren't worth much in revenue.  Does
> that make more sense?

My point is that you're taking too narrow a view of "offense" and "defense."
Companies use their patents in lots of ways to defend their turf and their
profits.

Perhaps you mean, "I will use this patent only as a counter-claim if you sue
me for infringement," which is what most of our licenses now say. But that's
too narrow a definition.

I also mean, "I will allow this patent to be used for free by contributors
who dedicate their work for the free software community." I also mean, "I
will use this patent to provide a competitive advantage to open source
software so that proprietary software can't defeat us financially and
technically in the market." 

These are also defenses of open source, and they are defenses of innovation.

If we are going to take advantage of the defensive opportunities of patents,
sometimes we have to license them for money that we can then use to promote
open source. This is a simple derivative of the dual licensing model we have
used for years with copyright, except that patents can more easily and
thoroughly defend open source against predatory free-riders in the
commercial world.

/Larry




> -----Original Message-----
> From: Stephen J. Turnbull [mailto:stephen@xemacs.org]
> Sent: Friday, July 04, 2008 1:32 AM
> To: lrosen@rosenlaw.com
> Cc: fsb@crynwr.com
> Subject: RE: Patent prior art database
> 
> Lawrence Rosen writes:
>  > Steven Turnbull wrote:
>  > > Easy to say, hard to do.  A patent is defensive because the nature of
>  > > the invention is that it's not worth much in licensing, not because
>  > > the nature of the inventor is to be a pussycat.
> 
>  > What you say is sometimes true, but not always. For example, if open
> source
>  > software is commercially better because it implements a "free for open
>  > source" patent, perhaps the commercial companies that want proprietary
>  > products will be encouraged to buy patent licenses just to compete.
> Doesn't
>  > it depend on the value of the patents involved? Most are worthless, but
> not
>  > all!
> 
> I'm not sure what you're getting at.  I don't mean at all to imply
> that a FLOSS developer won't come up with revenue-generating
> inventions.  I'm simply trying to define "defensive patent", and point
> out that the reason it's hard to get developers to file applications
> for defensive patents is that they aren't worth much in revenue.  Does
> that make more sense?
> 
>  > Let those companies pay what the patent is worth, which may be
>  > little or much as the case may be.
> 
> Sure.  But that does depend on analyzing the patent, the use, and the
> potential licensee on a case-by-case basis.  This is expensive.  My
> point is that it's probably prohibitively expensive in the context of
> "why can't a database of FLOSS prior art, embodied in patent
> applications, fund itself via royalties on patents that are granted in
> the process?"
> 
> If the point is "should FLOSS developers file patent applications?" I
> would say "yes, if there's a business logic to it.
> 
>  > I always welcome the advice of economists when I try to calculate
> value.
> 
> Well, just make sure you pay what the advice is worth, which may be
> little or much as the case may be!