Subject: Re: New angle on the patent problem
From: "Karsten M. Self" <>
Date: Mon, 13 Sep 1999 05:07:59 +0000

cc: FSB (society for preservation of carpal tunnels)

Assaf Arkin wrote:
> Karsten,
> I read your short piece on patent protection. I am now dealing with the
> exact same issue and trying to locate a viable solution.

What's your background?  SW or law or innocent|interested bystander? 
Ok, you're responding to the FSB posting (I've advertised this in
several places....).

> The language you have quoted from the SCSL also appears in the NPL 1.1
> and the IPSL, so it seems to be a widely accepted form of action against
> patent claims. Yet, after reading all three licenses, I still fail to
> understand how it offers any protection to the open source world.

The germ actually came from another source I can't currently discuss,
but it's similar to the licenses you mention.  BTW, what's IPSL? 
Haven't heard of it.
> Let's assume that company X holds a patent that is being used in an open
> source project falling under an NPL-like license. The code was written
> by an individual, is key to making the software work, yet it violates a
> bogus patent that was granted to company X despite being obvious. The
> project is not sponsored by any company that holds its own patents (that
> is why I did not select Mozilla).
> Now, after successful distribution of the code to thousands of users,
> company X "finds" the patent use and claims compensation from all users.
> It demands that large users pay royalties and small users cease to use
> the software. Patent law allows them to do so.

More ominously, there need not even be a patent.  Few free software
developers would be in a position to evaluate any sort of patent claim. 
A sternly worded letter might be sufficient to dampen enthusiasm for
pursuing a project.  Unisys's current LZW action is a classic example --
art *implying* method is assumed to be infringing.

Of course, the patent doesn't have to be bogus (assuming you believe in
software patents).  But valid, invalid, infringed, or not, there's a
risk to anyone writing code.
> According to the NPL/SCSL/IPSL, company X must cease using this product
> internally. That is find with company X, they never used the said
> software to begin with. For example, if it was Mozilla, they could just
> decide to use IE internally. (Note, company employees can use Mozilla at
> home, so the example of TiVO does not apply)
> I do not see how this clause deals with the issue.

It doesn't.

This does:  the clause doesn't specify _one_ program.  It defines a
termination condition based on action against any of a _class_ of
programs.  Examples:  Any GNU project.  Any software licensed under GNU
GPL (this is where the patent-grab aspect starts to enter, and becomes a
bit frightening).  A select list of projects (say:  Linux, GCC and libs,
BIND, and Apache).

The termination clause specifies that infringing action allows _any_
developer (not just the developer(s) affected by action) to enforce the
termination clause, and negotiate a royalty term for use of covered
code, past, present, and future (life plus 70 years).

Your story is now:

 - Developer's program falls into Class.
 - Company X seeks infringement claim against Developer.
 - Joint Enforcement clause of license allows any developer 
   of any software in Class to enforce termination clause.
 - Company X is now faced with royalty claims for use of any
   infringing software (who doesn't use BIND?).  They can:
    o Pay.
    o Abandon use of software and select non-free alternatives.
    o Grow their own alternative software.
    o Abandon their patent claims.

The idea is to make a very large, very easily triggered, and very
significant stick.

The mechanism outlined should also handle your second case.
> Now, here's another scenario. Company Y is a major automatic

 < *** snip *** >

> Arkin
> > -----Original Message-----
> > From: []On Behalf Of
> > Karsten M. Self
> > Sent: Sunday, September 12, 1999 5:07 PM
> > To: FSB
> > Subject: New angle on the patent problem
> >
> >
> > The patent problem being the problem faced by free software
> > of potential
> > (real or alleged) patent infringment.

Karsten M. Self (
    What part of "Gestalt" don't you understand?

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