Subject: Re: Patents (Re: Shuffle those deck chairs!)

From: Harald Tveit Alvestrand <[email-masked]>
Date: Tue, 05 Oct 2004 18:22:52 +0200

--On 5. oktober 2004 10:35 -0400 "Eric S. Raymond" <[email-masked]> wrote:

> Harald Tveit Alvestrand <[email-masked]>:
>> I do think we (the community) have a chance at finding ways to render
>> those  patents that crop up in the commons harmless.
>
> And what ways would those be?

One posting I found interesting was Larry Rosen's article at Newsforge:

<http://trends.newsforge.com/article.pl?sid=04/07/22/201217&tid=147&tid=110&tid=132>

In particular this piece:

> MAD
>
> Can we defend against patents by preparing to go on the offense?
>
> During the cold war, nuclear catastrophe was averted by a policy of
> mutually assured destruction ("MAD"). If any country dared to start a
> nuclear war, the theory went, the devastation wreaked upon that country
> would be many times worse. Not just the nuclear powers were so protected.
> Through treaties and alliances, the allies of the great powers survived
> under a defensive MAD shield.
>
> So too, in the field of patents, do large patent portfolios serve the
> role of stockpiled nuclear weapons. If a company with a large portfolio
> is sued, it will likely own other patents that are essential to the
> company that dared to sue. "Sue me," they say, "and I'll sue you back
> even worse for patent infringement." In this way, a patent portfolio can
> be a defense to litigation, because few will dare sue and risk their own
> destruction.
>
> Big companies, however, don't usually treat patents like nuclear weapons
> against their major competitors. Instead, they license their patent
> portfolios in return for cross-licenses to their competitors' patent
> portfolios. This removes the competitors' arsenals from use for both
> offensive and defensive purposes, leaving the cross-licensed companies
> free to operate with a reduced fear of patent litigation.
>
> Because such cross-licenses between big patent owners are usually
> closely-held trade secrets, it is not easy for us to know if open source
> allies will be able or willing to use their patents to defend open source
> software. We simply don't know if we're shielded by the MAD patent
> portfolios of our best friends.

If it was possible to set up things in such a way that it was easy for a 
company to declare "no first use" on a patent in the space of standards 
implementation, and very disruptive for a company to renege on such a 
promise (for instance, by having all the "no first use" promises by other 
companies being rendered inoperative), we might get something..... but this 
is just me thinking aloud. I have not been able to get any patent lawyers 
interested in pursuing/spearheading this train of thought.

               Harald

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---

From: Iljitsch van Beijnum <[email-masked]>
Date: Tue, 5 Oct 2004 18:46:23 +0200

On 5-okt-04, at 18:22, Harald Tveit Alvestrand wrote:

> I have not been able to get any patent lawyers interested in 
> pursuing/spearheading this train of thought.

It is generally accepted that the turkey gets no say when deciding the 
christmas day menu.

---

From: "Eric S. Raymond" <[email-masked]>
Date: Tue, 5 Oct 2004 12:51:48 -0400

> interested in pursuing/spearheading this train of thought.

In fact, Larry's "go on the offense" proposal appears to be derived from a 
patent-termination-clause concept I invented four years ago, which he later
wrote into the 1.0 versions of AFL and OSL.

It didn't work.  None of the legal departments at IBM or the other 
Fortune-100 corporations with the biggest stake in open source were
willing to go first in sacrificing the "advantage" of being able to 
play multi-billion dollar games of chicken with their portfolios.

So I *have* been able to get patent lawyers interested in 
pursuing/spearheading this train of thought.  And it dead-ended.

Thus, in part, my belief that IETF and W3C and other standards 
organizations must lead on this issue or become irrelevant.
-- 
		<a href="http://www.catb.org/~esr/">Eric S. Raymond</a>