Subject: Re: Why software patents are bad
From: "Stephen J. Turnbull" <>
Date: Thu, 23 Sep 1999 17:02:53 +0900 (JST)

Addressee list trimmed.

>>>>> "kms" == Karsten M Self <> writes:

    kms> you've got a databank to refer to in trying to invalidate
    kms> patents (cost: US$100k pretrial, US$1m trial).

I've seen this number several times now.  If Aharonian's research may
be taken at face value, there must be large numbers of "sitting duck"
patents out there.  They should be a lot easier to go after.  Doing so
would up the ante for applications, especially if the law includes
penalties for frivolous applications (ones which make claims on
algorithms discussed in well-known textbooks, for example).

Furthermore, documenting a large database of patents filed on the
basis of previous art, and also making a database of prior art
available, should slow down the issuance process.  Throw sand in the
gears!  Especially if it's sand that is _legally supposed_ to be there 
anyway.  :-)

I seem to recall that large numbers of patents are available in online
databases; maybe we should have "tiger teams" attack them instead of

    kms> Patent pools are one method, they require free
    kms> software-friendly patents.  A copyright|license based

This requires either help from IBM or some entity like it, or far more 
work than the sand in the gears approach.

    kms> poison-pill defense is another, it strikes me as much more
    kms> usable and amenable to the situation of the free software
    kms> community.  Using both methods is certainly possible.

Except that software covered by a "poison-pill" is not free any more.

For it to work, you _must_ shoot innocent bystanders:  programmers and 
users whose only sin is prior employment at a company whose legal
department decides to take action against a covered project.  This is
in clear violation of the definition of "free software," which says
that once you have legally acquired a license to free software, the
license cannot be revoked unless you take an action violating the

If you don't turn up the heat on such unwitting "accomplices," then
you're opening wide the "patent shark subsidiary" hole.  Arguably, you
should go after the customers of the company, too, if any, who
presumably benefit from the monopoly (particularly if they are
licensees of the patent, or gain some monopoly status of their own
because of the restricted licensing of the patent).

Also, I don't see any way around another logical difficulty: it
requires reassessment of the "free" status of the Aladdin Free Public
License, the ssh v.2 license, the old Qt license, and so on.  You've
made use of free software conditional on "good behavior" ("don't
enforce patents against free software"); I don't see how that differs
in principle from "if you make money from free software, you should
return some of it to enable development of more free software."

I'm sure all of the questions above can be answered (although I don't
have answers myself), but I suspect the cost is further proliferation
of free software licenses as various poision pill clauses are tried
and developers independently try to take advantage of the fact that
free software can be "just a little bit unfree" in a good cause.

University of Tsukuba                Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
Institute of Policy and Planning Sciences       Tel/fax: +81 (298) 53-5091
What are those two straight lines for?  "Free software rules."