Re: Patents and OpenMoko
Jon Radel schrieb: Vasco Névoa wrote: Hi. Sorry to barge in like this, but I don't quite understand the problem to begin with... Isn't open source code by definition protected against subsequent patents? It is part of the patenting process to search for conflicting publications; if they find any, then the candidate idea is not a novelty and cannot be patented. Publishing is the best weapon against (subsequent) patents: cheap and effective. I think we should just add some way to automatically timestamp every code check-in in a legally binding way, like using some outside certification entity's digital signature (that carries a legally recognizable timestamp). An open-source public repository is a valid publication of ideas, which are therefore not patentable. What do you think? Bogdan Bivolaru already pointed out some practical issues with your theoretical outline. However, there are some additional issues: The biggest in my view is that you seem to assume that open source developers somehow (magic?) manage to write only code which does not infringe (in somebody's eyes) on existing patents, or won't infringe on already filed patents that haven't been published yet. There are even legal reasons to avoid doing a patent search before you start developing something, as you then avoid knowingly infringing, which makes a difference, at least in the US. How do you want to proove that either you did or did not do that research? This is quite pointless. Of course it makes a difference if you knew about it or not but you can perfectly well do an anonymous research yourself without leaving any proof (and it is agood avise to do so in order not to start large developments in areas that are already a patent mine field - been there done that in the area of motion detection and picture recognition and subesquently stopped certain developments). Then there's the practical matter that if you have a collection of patents you can frequently come to some cross-licensing agreement if someone else in your industry starts hassling you with their patents. If you have nothing, it's much easier for them to grind you into the dirt, if only with legal fees, if they so desire. Here some more resonability would be good. So let's think, who are the most likely players that could sue a company like OpenMoko working in the mobile phone area? Other mobile phone makers. Who are those? Nokia, NEC, Samsung, Qualcom, Lenovo, HTC,... All those companies are magnitudes larger than a start-up like OpenMoko. The cross licensing trick goes like this: You infringe on somebody else's patent (knowingly or not aside). They come to you and threaten you with sueing you - you shiver and fear they are taking you out of business. Now you go down your cellar and browse your patent pool and look at the other's products if they could possibly by coincidence (- this is the point here!) infringe on one of your patents. So now step back and calculate the probably that the other party really infringes one of your patents? If there is Qualcom vs. Nokia then there is a good chance but those two do this business for decades and are huge companies. For a small company even if you are able to find an infringed patent they come up with at least a dozen more of your infringements. As a small company you will loose, no way around it and the dream of cross licensing is for small and new players just a dream. It is unrealistic to assume that it could work. For small businesses the only way to benefit from patents is to have a real new invention and license it to some bigger player and make money from it. To the special case of OpenMoko as long as the GTA devices are concerned they have no single piece (sorry, no offense!) of great invention in them that would be a good candidate for a patent. And even if you can probably construct, with a lot of extra inspiration, say, 10 patents on soft- and hardware? Maybe 20? But that's about it. And now go back to those big players and count their's - IBM is well known for being patent record holder, they file more than 10 patents - a day! So is cross licensing for a company like OpenMoko (and similar) realistic? I think not. Should someone like OpenMoko aim at doing so? I also think not. Do not feed the troll. The patent system is broken, especially regarding software. It could be fixed but nobody has until now made any good proposal. Why? Because the patent system in itself has become a huge business and doing a reform would mean that many people loose a lot of profit - starting with lawyers ;) So my advise is: Stick with the very old patent model. If you have a really cool new invention, go for a patent! But this should be really cool and really new technology, especially hardware. Be very careful with software! I would advise not to touch software patents at all. If you are behind patents just for the cross-licensing, forget about it. This ultimatley leads to the bad situation we
Re: Patents and OpenMoko
Patenting OpenMoko, and then granting everyone perpetual, free use of the patent is the way to go. Everyone means those who does not enforce their patents against freedom software projects. If they do go enforce their patent, they will likely go against OpenMoko, should they find a weak legal spot. This would be a hard twist from the current system, just like the copyleft concept. Proprietary software vendors could easily join this kind of community licensing for patents. As long as you do not attack a member of the community, anyone could use any patent. Of course if a community member starts enforcing patents, he should be expelled automatically (as in forcibly exit community). This could be included in the patent licensing terms. Anyone breaking them, would rule themselves out. Also the initial patent licensing agreement can not be changed even if, OpenMoko goes bankrupt -God forbid!- and it's patents get into Acacia Research portofolio. This is perpetual copylefting - as free software always evolves into something better and new, patent regranting is more or less guaranteed. Alas, this does little to fight Acacia and the like. Public Patents Foundation (pubpat.org) or Electronic Frontier Foundation ( EFF.org) could be a starting point for this effort. On Feb 7, 2008 10:00 PM, Sean Moss-Pultz [EMAIL PROTECTED] wrote: Dear Community, Most of you know that OpenMoko is a fully independent company at this point. With this great opportunity comes many challenges. Today I would like to share one with you all and ask for some advice. We need to file patents for our hardware as well as software designs. While my personal views on software patents are inline with people like Eben Moglen, as a company, we are forced to play by the rules of the game. What I want is for a our company's patents to be freely available, for anyone, but for defensive purposes only. Are there any existing options available to us now? Does anyone know of existing companies or organizations with a similar strategy that we can seek guidance or partnership. Again, I want to emphasize that we only want our patents to be used in defense. And what constitutes defense is something that we want to be able to define (and potentially even redefine when new threats arise). Thanks in advance for the help. Sean ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Re: Patents and OpenMoko
Vasco Névoa wrote: Hi. Sorry to barge in like this, but I don't quite understand the problem to begin with... Isn't open source code by definition protected against subsequent patents? It is part of the patenting process to search for conflicting publications; if they find any, then the candidate idea is not a novelty and cannot be patented. Publishing is the best weapon against (subsequent) patents: cheap and effective. I think we should just add some way to automatically timestamp every code check-in in a legally binding way, like using some outside certification entity's digital signature (that carries a legally recognizable timestamp). An open-source public repository is a valid publication of ideas, which are therefore not patentable. What do you think? Bogdan Bivolaru already pointed out some practical issues with your theoretical outline. However, there are some additional issues: The biggest in my view is that you seem to assume that open source developers somehow (magic?) manage to write only code which does not infringe (in somebody's eyes) on existing patents, or won't infringe on already filed patents that haven't been published yet. There are even legal reasons to avoid doing a patent search before you start developing something, as you then avoid knowingly infringing, which makes a difference, at least in the US. Then there's the practical matter that if you have a collection of patents you can frequently come to some cross-licensing agreement if someone else in your industry starts hassling you with their patents. If you have nothing, it's much easier for them to grind you into the dirt, if only with legal fees, if they so desire. --Jon Radel smime.p7s Description: S/MIME Cryptographic Signature ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Vasco Névoa wrote: Hi. Sorry to barge in like this, but I don't quite understand the problem to begin with... Isn't open source code by definition protected against subsequent patents? Yes, normally patent granting offices do search for prior art, but how thorough do they seek it? How do you deal with incapable and ill wanting individuals inside patent granting offices? It is part of the patenting process to search for conflicting publications; if they find any, then the candidate idea is not a novelty and cannot be patented. Publishing is the best weapon against (subsequent) patents: cheap and effective. From what I have seen so far prior art is most successful as an argument when actually challenging the patent in justice / in patent offices. By showing prior art, freedom software developers can demote a patent: look no further than the patent suit filed by Trend Micro against Barracuda / ClamAV. What is actually needed every time someone is trying to enforce a bogus patent (called a thicket) is a white knight that comes to rescue freedom projects. Although the license fee was not very high for the TrendMicro patent and they could have easily paid, Barracuda stood up for ClamAV, in fact defending the project. http://blogs.zdnet.com/open-source/?p=1952 I think we should just add some way to automatically timestamp every code check-in in a legally binding way, like using some outside certification entity's digital signature (that carries a legally recognizable timestamp). Of course one can assume that if most freedom projects were using digital signatures and timestamping authorities, that could discourage patent holders to go against freedom developers. But I should remark that a freedom free-beer timestamping authority has yet to be found! Maybe http://cacert.org will take up the role, maybe not. An open-source public repository is a valid publication of ideas, which are therefore not patentable. Patents are a danger to freedom software because they force hobby developers (poor, no money) to hire lawyers to reach the point in the justice system where presenting prior art is actually relevant for challenging the patent - in a counter-suit. Of course that's what the Linux defense fund is for, but one should know that such a fund is not limitless - it can only finance a part of free projects, probably the most important ones. Going back to the Barracuda example, Barracuda says there is a lot of prior art here http://www.infoworld.com/article/08/01/29/Trend-Micro-stresses-tested-patent-in-trade-case_1.html [http://www.infoworld.com/article/08/01/29/Trend-Micro-stresses-tested-patent-in-trade-case_1.html ] and the patent is overly broad. But fortunately, courts move slowly. There is plenty of time for discovery [discovery of prior art that is] to proceed, on both of Barracuda’s defense claims. We’ll have legal and political answers on the use of patents to deny innovation long before any verdict here. The fact that courts move slowly is fortunate only because Barracuda is a company with a fair amount of lawyers and financing , if it weren't for them ClamAV would have either be forced to either look for sponsors for the suits or to close doors. What do you think? Eh, i guess it is not very easy to find sponsors when someone's putting a cold knife at your neck, is it? Who [as in what company] would risk investing their money in such a risk endeavor? Maybe they will help you, maybe they will try to avoid you and your problems and find alternatives to your software. If you want to learn how much innovation lies in a patent and about patents in general please go to http://www.researchoninnovation.org/WordPress/. I had learnt that the leading country in bogus patent claims is US, which is currently undergoing a patent reform: http://arstechnica.com/news.ars/post/20080205-eff-says-patent-reform-could-bust-its-patent-busting-project.html Quoting from the EFF stance on this reform (link above): The post-grant review system would allow nonprofits like the EFF to challenge bum patents for only 12 months after they are issued. In the EFF's view, this isn't nearly enough time to become aware of dodgy patents and the impact they will have on the tech community at large. The group would prefer to retain the current reexamination system and simply add post-grant review to the process. Hope my post helps you understand better the current patent system. Let us how the patent system will shape up after this reform! I hope for the better! ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Hi. Sorry to barge in like this, but I don't quite understand the problem to begin with... Isn't open source code by definition protected against subsequent patents? It is part of the patenting process to search for conflicting publications; if they find any, then the candidate idea is not a novelty and cannot be patented. Publishing is the best weapon against (subsequent) patents: cheap and effective. I think we should just add some way to automatically timestamp every code check-in in a legally binding way, like using some outside certification entity's digital signature (that carries a legally recognizable timestamp). An open-source public repository is a valid publication of ideas, which are therefore not patentable. What do you think? - Mensagem Original - De: Sean Moss-Pultz [EMAIL PROTECTED] Data: Terça-Feira, 12 de Fevereiro de 2008, 4:25 Assunto: Re: Patents and OpenMoko Nils, Thanks a lot for such an indepth reply. I need to think about a lot of these points. Let me just comment on a few now... On 2/11/08 Nils Faerber wrote: [snip] Are there any existing options available to us now? Does anyone know of existing companies or organizations with a similar strategy that we can seek guidance or partnership. Again, I want to emphasize that we only want our patents to be used in defense. And what constitutes defense is something that we want to be able to define (and potentially even redefine when new threats arise). This is a noble aim but very very difficult to reach. Perhaps. But I think we should try our best... Speaking as a free software acitvist especially software patents are a complete no-go. Speaking as community guy I would say that with the software patents you would have to sign and publish a non-revocable community contract that sais quite explicitely for which use you would accept royaltee free use and of which patents. Only then the community would be safe. Else, at some later point in time, someone at OpenMoko/FIC might change their mind and try to make money from the patents. I think there is a way to get around this legal. We're getting some advice from the SFLC later this week. I'll keep everyone posted as to our plans. Thanks in advance for the help. My very quick advice: Don't get your hands dirty with patents, especially with software. You will loose a lot of credibility in the free software world and the benefit is questionable. With all due respect, I must disagree here. Not filing for patents, is hardly an option for a global company in this day and age. The larger we get, the more of target we become. I'm confident we can reach a solution that will be helpful for both our business and the community. I will keep you all posted as to our progress. Sean ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community ___ Ponha a sua Vida em Grande Plano! 10% DESCONTO ADICIONAL para adesoes on-line. Clique aqui para saber mais http://www.iol.pt/correio/rodape.php?dst=0801301 ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Would you explain? because this is very commonly believed: if you don't defend the patent you will lose it. Just depends how this phrase defend the patent is defined I guess... It differs in jurisdictions, but what most people confuse it trademark and patents. You can lose a trademark if you don't defend it. A starting point for research: http://en.wikipedia.org/wiki/Trademark_dilution Also you can lose your patent if you don't implement it, which is complete different from dilution but easy to confuse. What kind of protection is offered by the patent commons? How can a mere agreement among the parties involved (if there were any lawsuit about a breach thereof, it would be a civil suit) be stronger than the patent law itself, which specifies the rights of the patent owner to license the patent and collect royalties, or to sue for infringement? I trust that some lawyers have thought this through pretty thoroughly by now, but it hasn't been tested, right? I have no idea if there is case law. It would be governed by applicable contract law and what was actually agreed to... http://www.patentcommons.org/resources/about_commitments.php#type By making a Commitment, a Contributor gives permission for others to engage in activities it could otherwise prevent, or for which the Contributor could collect damages or royalties. Courts have concluded it is unfair and inequitable for Contributors to encourage others to rely on their promise they will not enforce their patents and then sue them for infringement for doing so Sounds like there might be some case law there already. I suspect you are right about this, but there really are credibility problems with software patents in general... they clearly suck, and many developers are in denial, and waiting for them to be finally disallowed by the gov't. But then again, that might never happen; and even if it did, would the existing software patents be thrown out, or grandfathered? It is hard to predict the future, especially ahead of time. Probably the large corporate special interests will get whatever they want, in the end. I agree. The situation is a mess. Just like the GPL is copyleft, hopefully the patent commons will become the same thing: patent everything we can and grant everyone the right to use it. -- Steven Kurylo ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Nils Faerber writes: Isn't this already a problem? From what I know especially in the US patent system you are *forced* to actively defend your patent, i.e. if you get to know that someone uses your patent and is not paying you roayalties (or you get an alternative commercial advantage like cross licensing) you have to sue him. If you do not do so the patent can be revoked. IANAL, but -- no. You seem to be confusing patents with trademarks -- you can lose a trademark by failing to actively defend it; a patent can't be revoked on those grounds (now, if you let somebody use your patent for a decade before you sue them, you could end up getting far less damages than you would have otherwise. But that's a different issue than losing the patent). And you have to collect royalties since the patent system only cares about businesses, i.e. the sole purpose of patents is to make money from it. Not using it to make money by either sublicensing or self-use of the IP will constitue non active use of the patent and is also a reason for revocation. Again, no. There is no requirement that you charge royalties. So even if you have the intend of not sueing you might be forced to either sue others and/or collect license fees. The expressed intend not to make money from the patent could already be a reason for not accepting it. So imagine someone else using the OpenMoko software on another device with some of your patented parts in it. You would be forced to sue this person/company/whatever. This is not what we you/we want. It's also not the law. ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
From what I know especially in the US patent system you are *forced* to actively defend your patent, i.e. if you get to know that someone uses your patent and is not paying you roayalties (or you get an alternative commercial advantage like cross licensing) you have to sue him. If you do not do so the patent can be revoked. No. And you have to collect royalties since the patent system only cares about businesses, i.e. the sole purpose of patents is to make money from it. Not using it to make money by either sublicensing or self-use of the IP will constitue non active use of the patent and is also a reason for revocation. No. So even if you have the intend of not sueing you might be forced to either sue others and/or collect license fees. The expressed intend not to make money from the patent could already be a reason for not accepting it. No. So imagine someone else using the OpenMoko software on another device with some of your patented parts in it. You would be forced to sue this person/company/whatever. This is not what we you/we want. No. But as always: IANAL. Indeed :-) Starting to collect software patents would contradict your own claim of openness and support of free software. Not at all. Speaking as community guy I would say that with the software patents you would have to sign and publish a non-revocable community contract that sais quite explicitely for which use you would accept royaltee free use and of which patents. Only then the community would be safe. Else, at some later point in time, someone at OpenMoko/FIC might change their mind and try to make money from the patents. Definitely and thats what the patent commons are for. Oh, and it just occurred to me... AFAIK GPL V3 explicitely forbids software patents on GPLed code, does it? No it doesn't. http://www.gnu.org/licenses/gpl-faq.html#v3PatentRetaliation If they patent software, and release that software under GPL3, they can't sue users of that software for patent infringement. But please do not consider software patents at any time! You will instantly loose your credibility in the open source world. Not at all. If they don't patent it, someone else will; then you're in real trouble. Its a broken system, but its one they have to work with. Sure you can point to prior art if someone else patents it - but challenging a patent costs money. Usually more than the cost of the patent in the first place. As long as they pledge the patents to the community, which from the original email is their goal, there is nothing wrong with getting patents. ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
On Feb 11, 2008 12:20 PM, Steven Kurylo [EMAIL PROTECTED] wrote: From what I know especially in the US patent system you are *forced* to actively defend your patent, i.e. if you get to know that someone uses your patent and is not paying you roayalties (or you get an alternative commercial advantage like cross licensing) you have to sue him. If you do not do so the patent can be revoked. No. Would you explain? because this is very commonly believed: if you don't defend the patent you will lose it. Just depends how this phrase defend the patent is defined I guess... But as always: IANAL. Indeed :-) Are you a lawyer? Speaking as community guy I would say that with the software patents you would have to sign and publish a non-revocable community contract that sais quite explicitely for which use you would accept royaltee free use and of which patents. Only then the community would be safe. Else, at some later point in time, someone at OpenMoko/FIC might change their mind and try to make money from the patents. Definitely and thats what the patent commons are for. What kind of protection is offered by the patent commons? How can a mere agreement among the parties involved (if there were any lawsuit about a breach thereof, it would be a civil suit) be stronger than the patent law itself, which specifies the rights of the patent owner to license the patent and collect royalties, or to sue for infringement? I trust that some lawyers have thought this through pretty thoroughly by now, but it hasn't been tested, right? But please do not consider software patents at any time! You will instantly loose your credibility in the open source world. Not at all. If they don't patent it, someone else will; then you're in real trouble. Its a broken system, but its one they have to work with. Sure you can point to prior art if someone else patents it - but challenging a patent costs money. Usually more than the cost of the patent in the first place. I suspect you are right about this, but there really are credibility problems with software patents in general... they clearly suck, and many developers are in denial, and waiting for them to be finally disallowed by the gov't. But then again, that might never happen; and even if it did, would the existing software patents be thrown out, or grandfathered? It is hard to predict the future, especially ahead of time. Probably the large corporate special interests will get whatever they want, in the end. ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Sander van Grieken schrieb: [...] I really hope that OpenMoko will not be covered by any patents. (but I'm sure that there's a patent for a device allowing wireless communication somewhere) I totally agree with Lionel here. It will be bad PR wise and it's very difficult to enforce. Openmoko hardware and software are already covered by copyright, and I think a patent doesn't add any protection. Even if parts will be covered by a patent, chances are that some smart company can circumvent it by making small changes/improvements. Besides, what's there to patent? If I understand correctly, anything that's published (or available publicly) before the patent cannot be patented anymore, so that would include all openmoko software up to today, the CAD design for the casing, ideas on the wiki etc. Oh, and it just occurred to me... AFAIK GPL V3 explicitely forbids software patents on GPLed code, does it? Will that mean that OpenMoko code will stick with a modified GPL V2 (V2 usually has the clause or any later version which would include V3 and thus also the non-patent clause) or change license altogether? Software patents are evil - there is no way to argue for it. The only way to defend against patent issues is to have a nice and provable prior art collection. A public SVN, public WiKi and public web-pages are IMHO the best way for that. Web bots mirror the whole stuff on hundreds of independant servers and it can easily be researched by everyone. More should not be needed. The assurance you might feel by having a stack of patents is more like self-deception. Do you really think you can compete with your patent portfolio with a company like Nokia? Motorola? Samsung? NEC? Qualcom? No way. So why trying? Wouldn't it better to head a new development without patent fear? To show to other companies that patents are not the only source of whisdom, cash-flow and money making? I think the IP issue is largely exagerated these days. Yes, there are IP infringements in countries like China. But how do patents help there? They don't. They only handicap us, the people from exactly the countries that made the original invention. I had the impression that OpenMoko was already heading a revolutionary new way of creating a product, i.e. working together with a community, in the open and to work *together*. A company that first time has proven that making a mobile phone is no rocket science and not an area covered with legal trapdoors - up to now it worked! If you want to patent anything, well, do it with the hardware. The hardware patenting process is well defined and a patent in some hardware areas of the NEO phones will not hurt anybody. But please do not consider software patents at any time! You will instantly loose your credibility in the open source world. Or to make it more concrete: If OpenMoko should file *any* software patents I would have to stop to work with OpenMoko, as sorry as I would be. grtz, Sander Cheers nils faerber -- kernel concepts GbRTel: +49-271-771091-12 Sieghuetter Hauptweg 48Fax: +49-271-771091-19 D-57072 Siegen Mob: +49-176-21024535 -- ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Nils, Thanks a lot for such an indepth reply. I need to think about a lot of these points. Let me just comment on a few now... On 2/11/08 Nils Faerber wrote: [snip] Are there any existing options available to us now? Does anyone know of existing companies or organizations with a similar strategy that we can seek guidance or partnership. Again, I want to emphasize that we only want our patents to be used in defense. And what constitutes defense is something that we want to be able to define (and potentially even redefine when new threats arise). This is a noble aim but very very difficult to reach. Perhaps. But I think we should try our best... Speaking as a free software acitvist especially software patents are a complete no-go. Speaking as community guy I would say that with the software patents you would have to sign and publish a non-revocable community contract that sais quite explicitely for which use you would accept royaltee free use and of which patents. Only then the community would be safe. Else, at some later point in time, someone at OpenMoko/FIC might change their mind and try to make money from the patents. I think there is a way to get around this legal. We're getting some advice from the SFLC later this week. I'll keep everyone posted as to our plans. Thanks in advance for the help. My very quick advice: Don't get your hands dirty with patents, especially with software. You will loose a lot of credibility in the free software world and the benefit is questionable. With all due respect, I must disagree here. Not filing for patents, is hardly an option for a global company in this day and age. The larger we get, the more of target we become. I'm confident we can reach a solution that will be helpful for both our business and the community. I will keep you all posted as to our progress. Sean ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Sean Moss-Pultz schrieb: Dear Community, Hello Sean, and others... Most of you know that OpenMoko is a fully independent company at this point. With this great opportunity comes many challenges. Today I would like to share one with you all and ask for some advice. We need to file patents for our hardware as well as software designs. While my personal views on software patents are inline with people like Eben Moglen, as a company, we are forced to play by the rules of the game. Who did cast those rules in stone? The degree of how far you want to bend is defines by your own. The felt pressure is just felt and does not need to be real. There are hundreds of companies, big and small, who by now have stated that they will not apply for software patents. This tells me that those rules are not so hard. What I want is for a our company's patents to be freely available, for anyone, but for defensive purposes only. Isn't this already a problem? From what I know especially in the US patent system you are *forced* to actively defend your patent, i.e. if you get to know that someone uses your patent and is not paying you roayalties (or you get an alternative commercial advantage like cross licensing) you have to sue him. If you do not do so the patent can be revoked. And you have to collect royalties since the patent system only cares about businesses, i.e. the sole purpose of patents is to make money from it. Not using it to make money by either sublicensing or self-use of the IP will constitue non active use of the patent and is also a reason for revocation. So even if you have the intend of not sueing you might be forced to either sue others and/or collect license fees. The expressed intend not to make money from the patent could already be a reason for not accepting it. So imagine someone else using the OpenMoko software on another device with some of your patented parts in it. You would be forced to sue this person/company/whatever. This is not what we you/we want. But as always: IANAL. Another problem is that software patents are still not possible at all in the European Community, which is IMHO very good. And apart from that software patents are a bad idea in itself. Software is way too flexible to be described accurate enough to write a patent. So what happens is that all software patent claims are way too broad - they cover not only a specific invention but one patent already covers a vast area of inventions and thus preventing further invention by others in the whole area. Sorry, but software patents *must* be avoided by any means! There are for sure cases where a software patent might be well defined and could be argued for. But as long as the legislation allows such broad and undefined claims I am completely against it. And frankly I do not see a way to make the patent rules specific enough for that. For more information against software patents please have a thorough look at http://www.ffii.org/ and http://www.nosoftwarepatents.com/ Starting to collect software patents would contradict your own claim of openness and support of free software. Are there any existing options available to us now? Does anyone know of existing companies or organizations with a similar strategy that we can seek guidance or partnership. Again, I want to emphasize that we only want our patents to be used in defense. And what constitutes defense is something that we want to be able to define (and potentially even redefine when new threats arise). This is a noble aim but very very difficult to reach. Speaking as a free software acitvist especially software patents are a complete no-go. Speaking as community guy I would say that with the software patents you would have to sign and publish a non-revocable community contract that sais quite explicitely for which use you would accept royaltee free use and of which patents. Only then the community would be safe. Else, at some later point in time, someone at OpenMoko/FIC might change their mind and try to make money from the patents. Thanks in advance for the help. My very quick advice: Don't get your hands dirty with patents, especially with software. You will loose a lot of credibility in the free software world and the benefit is questionable. Sean Cheers nils -- kernel concepts GbRTel: +49-271-771091-12 Sieghuetter Hauptweg 48Fax: +49-271-771091-19 D-57072 Siegen Mob: +49-176-21024535 -- ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
So you want to patent any unique tech in the neo to prevent some scum from patenting your ideas then taking openmoko to court? Then just do it! Its in everyones interest not to see openmoko taken down so I'd imagine anyone here with an ounce of sense would not have a bad word to say about that. Its really that simple, is it not? JonS Sean Moss-Pultz wrote: Dear Community, Most of you know that OpenMoko is a fully independent company at this point. With this great opportunity comes many challenges. Today I would like to share one with you all and ask for some advice. We need to file patents for our hardware as well as software designs. While my personal views on software patents are inline with people like Eben Moglen, as a company, we are forced to play by the rules of the game. What I want is for a our company's patents to be freely available, for anyone, but for defensive purposes only. Are there any existing options available to us now? Does anyone know of existing companies or organizations with a similar strategy that we can seek guidance or partnership. Again, I want to emphasize that we only want our patents to be used in defense. And what constitutes defense is something that we want to be able to define (and potentially even redefine when new threats arise). Thanks in advance for the help. Sean ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community -- Jonathan Spooner Nationwilcox Systems Ltd Tel: 0121 3544345 ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
I think that we all agree here that the patent system is completely broken. By filling patent, even for defense only, you are playing the rule. What I've seen so far is that small companies that cannot afford a lawyer department simply choose to ignore the rules and just ignore completely the patent system. In the essence of the law, as long as you don't obviously *stole* an idea, you 've nothing to fear. But the system has becomed crazy when you can infringe a patent without even knowing it. That's completly wrong with the moral behing patent itself ! Have you already tried to fill a patent ? Have you tried to make a study on prior art ? I did for a few weeks and I didn't succeed. All is patented ! All, completely ! Patents are as general as possible and cover everything you could believe. It's nearly patents for things that do stuffs. So whatever you do, you could be sued. I don't know the ressources of OpenMoko but patenting, writing and submitting is a full-time job ! It would be shame (IMHO) to waste ressources in this way. More : you have to fill the patents in different countries !!! As OpenMoko does Free software, doing this, even for defensive purpose, will have a terrible PR impact in the Free Softwware community. You have the opportunity to just move, to ignore those silly things and to build something new. On the other hand, if you are under a patent attack without any patents, I think that the Free Software Fundation gives legal help in that kind of case. I really hope that OpenMoko will not be covered by any patents. (but I'm sure that there's a patent for a device allowing wireless communication somewhere) I totally agree with Lionel here. It will be bad PR wise and it's very difficult to enforce. Openmoko hardware and software are already covered by copyright, and I think a patent doesn't add any protection. Even if parts will be covered by a patent, chances are that some smart company can circumvent it by making small changes/improvements. Besides, what's there to patent? If I understand correctly, anything that's published (or available publicly) before the patent cannot be patented anymore, so that would include all openmoko software up to today, the CAD design for the casing, ideas on the wiki etc. grtz, Sander ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Esra Kummer wrote: This sounds like a great idea. I think what you mean is that if a competitor sues OpenMoko for allegedly infringing its patent, then OpenMoko can counter-sue saying BTW you are infringing this one of ours too and then it gets settled out-of-court by cross-licensing, right? Well I am not too sure about that... I would guess and prefer that the patent is used to ensure that no one else patents this and sues fic/openmoko. Otherwise it would not be a really free thing.. Am I right? Yes this is exactly what we want. We want to make the patents we get freely available, but also only usable for defensive purposes, forever -- no matter what actually happens to OpenMoko, Inc. The latter part, while somewhat pessimistic, is very important. Even if we go out of business, we don't want our patents to be bought up and then used to hurt the very Free Software projects that once (now) help us. So what is this defence tactic now Sean? Or do you have to figure out that as well? We honestly don't have this totally worked out yet. Hope you find a solution which is good in the FOSS sense like you often do! Just to say it ones more: you do a great job at FIC/OM! Thanks for your support! Sean ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Jonathan Spooner writes: So you want to patent any unique tech in the neo to prevent some scum from patenting your ideas then taking openmoko to court? Then just do it! Its in everyones interest not to see openmoko taken down so I'd imagine anyone here with an ounce of sense would not have a bad word to say about that. Its really that simple, is it not? No, it's not. Simply releasing information publicly establishes prior art that prevents patenting by others (well, valid patents). The idea here is to set up an ability to defend against other companies with valid patents that are inadvertently infringed: whoops, didn't realize, sorry. Say, if you want royalties from us, let's have a chat about our patent X which you're infringing while we're at it... Patenting ideas and joining the Patent Commons seems like a really good way of establishing that you're simply trying to protect yourself in today's reality, not trying to profit by the broken system. ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Sean Moss-Pultz wrote: Andres Paglayan wrote: what about posting this exact question at groklaw? Oh yes. That would work well...I'll make a post later today. Looks like they already picked this up... [PJ: Yes. Contact Open Invention Network and Software Freedom Law Center. Every patent expert I have ever had the opportunity to discuss this with says the community should patent everything in sight asap, for defensive purposes against the drooling ghouls. Publish the rest of what you invent with a verifiable date, if you are a purist.] - I'll have to contact my friends over at SFLC. It's been a while since I've said hi... Thanks a lot for all the great comments and direction! Sean On Feb 7, 2008, at 1:00 PM, Sean Moss-Pultz wrote: Dear Community, Most of you know that OpenMoko is a fully independent company at this point. With this great opportunity comes many challenges. Today I would like to share one with you all and ask for some advice. We need to file patents for our hardware as well as software designs. While my personal views on software patents are inline with people like Eben Moglen, as a company, we are forced to play by the rules of the game. What I want is for a our company's patents to be freely available, for anyone, but for defensive purposes only. Are there any existing options available to us now? Does anyone know of existing companies or organizations with a similar strategy that we can seek guidance or partnership. Again, I want to emphasize that we only want our patents to be used in defense. And what constitutes defense is something that we want to be able to define (and potentially even redefine when new threats arise). Thanks in advance for the help. Sean ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Andres Paglayan wrote: what about posting this exact question at groklaw? Oh yes. That would work well...I'll make a post later today. Sean On Feb 7, 2008, at 1:00 PM, Sean Moss-Pultz wrote: Dear Community, Most of you know that OpenMoko is a fully independent company at this point. With this great opportunity comes many challenges. Today I would like to share one with you all and ask for some advice. We need to file patents for our hardware as well as software designs. While my personal views on software patents are inline with people like Eben Moglen, as a company, we are forced to play by the rules of the game. What I want is for a our company's patents to be freely available, for anyone, but for defensive purposes only. Are there any existing options available to us now? Does anyone know of existing companies or organizations with a similar strategy that we can seek guidance or partnership. Again, I want to emphasize that we only want our patents to be used in defense. And what constitutes defense is something that we want to be able to define (and potentially even redefine when new threats arise). Thanks in advance for the help. Sean ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Am Fr 8. Februar 2008 schrieb Sean Moss-Pultz: of the case CAD files is not software (per say). In the future you will see a lot more. We don't believe software is only place people need openness. So does this mean we will eventually see the circuit diagrams (and even PCB layouts??), so we don't have to reverse engineer from PCB, like every rogue competitor would do (or surely has done already in China, for GTA01)? j ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Sean Moss-Pultz wrote: What I want is for a our company's patents to be freely available, for anyone, but for defensive purposes only. Are there any existing options available to us now? Does anyone know of existing companies or organizations with a similar strategy that we can seek guidance or partnership. http://www.patent-commons.org/ is the one that I'm aware of ... -- Rod ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
On Feb 7, 2008 1:00 PM, Sean Moss-Pultz [EMAIL PROTECTED] wrote: What I want is for a our company's patents to be freely available, for anyone, but for defensive purposes only. This sounds like a great idea. I think what you mean is that if a competitor sues OpenMoko for allegedly infringing its patent, then OpenMoko can counter-sue saying BTW you are infringing this one of ours too and then it gets settled out-of-court by cross-licensing, right? But I can't think of a way to legally bind the patent to be used for defensive purposes only. Whatever method you come up with would have to work in multiple countries, right? One technique I know of for the US is the provisional patent. My understanding is that you pay a small fee to file a sort of pre-patent which will be accepted immediately without review. Then you have one year in which to finish the real patent application, but the date will be set to that of the earlier provisional patent; so the intent is that if the competition is in hot pursuit, you can make sure your patent date is earlier than theirs, even if the patent application is not yet finished. But, if you fail to complete the full patent application within one year, the ideas contained in the provisional patent become unpatentable! because the USPTO (supposedly, if they aren't too lazy) always review prior patents before granting a new one... and that includes provisional patents. So ever since I heard of it, this has always seemed to me a good low-budget way (within reach of individual free software developers, even) to protect an idea from being patented by someone else later on. But I haven't personally tried to do that (although one company where I worked did) and I would sure like to see an opinion of an actual IP lawyer on how strong the protection is when you do that. It's basically just a form of prior art which is highly accessible to the USPTO, and less likely to be ignored than just publishing the prior art somehow. (Then you'd typically have to go to court to show the prior art and get the new patent overturned, right? Whereas with a provisional patent you have the chance to prevent competing patents from being granted.) If that technique does not protect us enough, then maybe real patents are better. But what is to stop OpenMoko, or some future company that buys OM, or some company to which the patents are cross-licensed, from using them in non-defensive ways? ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
what about posting this exact question at groklaw? On Feb 7, 2008, at 1:00 PM, Sean Moss-Pultz wrote: Dear Community, Most of you know that OpenMoko is a fully independent company at this point. With this great opportunity comes many challenges. Today I would like to share one with you all and ask for some advice. We need to file patents for our hardware as well as software designs. While my personal views on software patents are inline with people like Eben Moglen, as a company, we are forced to play by the rules of the game. What I want is for a our company's patents to be freely available, for anyone, but for defensive purposes only. Are there any existing options available to us now? Does anyone know of existing companies or organizations with a similar strategy that we can seek guidance or partnership. Again, I want to emphasize that we only want our patents to be used in defense. And what constitutes defense is something that we want to be able to define (and potentially even redefine when new threats arise). Thanks in advance for the help. Sean ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
RE: Patents and OpenMoko
I'd get in touch with the Linux Foundation/Software Freedom Law Center and discuss their patent commons with them. Write me off-list, Sean, and I can get you in touch with the right folks, I think... -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sean Moss-Pultz Sent: Thursday, February 07, 2008 12:00 PM To: List for OpenMoko community discussion Subject: Patents and OpenMoko Dear Community, Most of you know that OpenMoko is a fully independent company at this point. With this great opportunity comes many challenges. Today I would like to share one with you all and ask for some advice. We need to file patents for our hardware as well as software designs. While my personal views on software patents are inline with people like Eben Moglen, as a company, we are forced to play by the rules of the game. What I want is for a our company's patents to be freely available, for anyone, but for defensive purposes only. Are there any existing options available to us now? Does anyone know of existing companies or organizations with a similar strategy that we can seek guidance or partnership. Again, I want to emphasize that we only want our patents to be used in defense. And what constitutes defense is something that we want to be able to define (and potentially even redefine when new threats arise). Thanks in advance for the help. Sean ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
RE: Patents and OpenMoko
http://www.patent-commons.org/ is the one that I'm aware of ... This is what I was referring to... ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
This sounds like a great idea. I think what you mean is that if a competitor sues OpenMoko for allegedly infringing its patent, then OpenMoko can counter-sue saying BTW you are infringing this one of ours too and then it gets settled out-of-court by cross-licensing, right? Well I am not too sure about that... I would guess and prefer that the patent is used to ensure that no one else patents this and sues fic/openmoko. Otherwise it would not be a really free thing.. Am I right? So what is this defence tactic now Sean? Or do you have to figure out that as well? Hope you find a solution which is good in the FOSS sense like you often do! Just to say it ones more: you do a great job at FIC/OM! -- Mit freundlichen Grüssen / Best Regards Esra Kummer Address: Schaffhauserstrasse 133, 8400 Winterthur, Switzerland Fon: 0041 78 756 69 74 2nd Mail: [EMAIL PROTECTED] Skype: tuxfux.ch, MSN: [EMAIL PROTECTED], ICQ: 262647196 Fotos: www.flickr.com/photos/tuxfuxch Orkut: Esra Kummer ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
I think that we all agree here that the patent system is completely broken. By filling patent, even for defense only, you are playing the rule. What I've seen so far is that small companies that cannot afford a lawyer department simply choose to ignore the rules and just ignore completely the patent system. In the essence of the law, as long as you don't obviously *stole* an idea, you 've nothing to fear. But the system has becomed crazy when you can infringe a patent without even knowing it. That's completly wrong with the moral behing patent itself ! Have you already tried to fill a patent ? Have you tried to make a study on prior art ? I did for a few weeks and I didn't succeed. All is patented ! All, completely ! Patents are as general as possible and cover everything you could believe. It's nearly patents for things that do stuffs. So whatever you do, you could be sued. I don't know the ressources of OpenMoko but patenting, writing and submitting is a full-time job ! It would be shame (IMHO) to waste ressources in this way. More : you have to fill the patents in different countries !!! As OpenMoko does Free software, doing this, even for defensive purpose, will have a terrible PR impact in the Free Softwware community. You have the opportunity to just move, to ignore those silly things and to build something new. On the other hand, if you are under a patent attack without any patents, I think that the Free Software Fundation gives legal help in that kind of case. I really hope that OpenMoko will not be covered by any patents. (but I'm sure that there's a patent for a device allowing wireless communication somewhere) On Feb 7, 2008 9:43 PM, David Schlesinger [EMAIL PROTECTED] wrote: http://www.patent-commons.org/ is the one that I'm aware of ... This is what I was referring to... ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
On Feb 7, 2008 3:35 PM, Steven Milburn [EMAIL PROTECTED] wrote: As a first step, get anything you think is patent worthy documented and dated. In the US, a common practice is to write up your concept and mail it to yourself in a sealed envelope. You don't open the envelope until you Or get the document itself notarized. ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Forgot to add this link. This will outline the American procedure for patenting. http://www.inventionpatent.net/patent/process.cfm Steven Milburn [EMAIL PROTECTED] 02/07/08 5:35 PM As a first step, get anything you think is patent worthy documented and dated. In the US, a common practice is to write up your concept and mail it to yourself in a sealed envelope. You don't open the envelope until you need to and you do it with a lawyer present. The postmark on the envelope holds up very strongly to prove the date of the material. --Steve ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
On Thu, 2008-02-07 at 17:35 -0500, Steven Milburn wrote: As a first step, get anything you think is patent worthy documented and dated. In the US, a common practice is to write up your concept and mail it to yourself in a sealed envelope. You don't open the envelope until you need to and you do it with a lawyer present. The postmark on the envelope holds up very strongly to prove the date of the material. What prevents you from mailing yourself an unsealed envelope? -Arthur ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
On Feb 7, 2008 4:45 PM, Arthur Britto [EMAIL PROTECTED] wrote: What prevents you from mailing yourself an unsealed envelope? Why would you want to do that? The point is to get a reliable date stamp associated with the material inside the envelope. And as the other link pointed out, it doesn't hold up well in court, and could also be used against you to say that this idea was not being implemented... was just sitting on a shelf until you got around to filing the patent or defending against one. I think the notary method would be better because the stamp is right on the invention diagram/description; and not being sealed, they can't say it was necessarily sitting on a shelf. Some companies take lab notebooks seriously for the same reason - if you have a practice of dating and signing every page, and the book is a hardcover bound one, and it stands up to reasonable scrutiny that the notebook could not have been constructed and bound later on, then maybe some courts would be convinced that the idea struck you on that date... because it fits into the timeline of the other writings in that book, some of which could probably be corroborated via other sources. (Since I don't like the process of writing on paper though, that's one habit I haven't taken up very much.) More about the notary method here http://robertplattbell.blogspot.com/2007/10/poor-mans-patent.html and here http://books.google.com/books?id=7G5A2pyvCQUCpg=PA137lpg=PA137dq=notary+establish+date+of+inventionsource=webots=dEnJJyMR-msig=piJSbDkPsCkKJOmMd_XtzcwISmQ but I'm not proposing it's anywhere near as good protection as an actual patent... just for a prior art defense. ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
Re: Patents and OpenMoko
Sean Moss-Pultz wrote: What I want is for a our company's patents to be freely available, for anyone, but for defensive purposes only. Aside from patent-commons, which is just a way to allow mutual defense for fellow FOSS projects (assuming I understood this correctly), what I know of is to give irrevocable, transferable non-exclusive license to anyone to use your patents for any software released under the GPL. Such a license is GPLv3 compatible, is proof against acquisition, but does not diminish the defensive aspect of the patent. Bear in mind - I am not a lawyer. Shachar ___ OpenMoko community mailing list community@lists.openmoko.org http://lists.openmoko.org/mailman/listinfo/community
