Re: Software Patents: The Lowest Common Denominator

[Dominic Lachowicz <domlachowicz gmail com>]

Alan,

IANAL, so please don't take what follows as legal advice. I have a few
classes worth of US IP law under my belt, so I probably only know
enough to be dangerous to myself and others. YMMV.

> > > In an effort to let developers do what they do best and get on with
> > > developing software [2] so I would like to propose a standard build flag
> > > which could be used to fence off code that could be effected by software
> > > patents.

While you raise a good concern, by suggesting a course of action,
you've muddied the waters a bit. As Jeff astutely notes, your original
proposed course of action actually leaves developers worse-off than
they are now. Anything that amounts to a knowing violation of patents
will only get developers in hot water. It's much better to be ignorant
here. Of course, adopting a policy of intentional ignorance could get
us in hot water too. Damned if we do, damned if we don't... But I
guess that's the crux of your argument.

> >   Are you violating the patent by implementing it with code,
> 
> My limited understanding is there is nothing preventing the implementation
> in code of a patented idea as this can be viewed as an acedemic excercise.
> (And the example of Freetype seems to suggest there is some merit to
> this.)

That's not the case. As far as I know, there's nothing like a "free
academic license" or "non-commercial license" to infringe on patents.
It's also important to note (iirc) that the Freetype developers who
implemented font hinting did it in a place where the patent wasn't
issued, and thus weren't in violation of anything when they did so. By
doing things this way and not distributing builds that infringe on the
patent in places where that patent is valid, they've effectively
safely shifted the onus onto the distributors and individual users
who'd deploy Freetype.

On a more-upbeat note, 2/3 of those patents are due to expire in less
than a year :)

> It is nearly better for developers not to touch patents with a bargepole
> for this reason, trying to identify patents and avoid them only makes it
> worse for developers.

This is the soundest advice I can think of at the moment. Unless
you're an IP lawyer with some substantial backing, don't go out
looking for patents. All you'd be doing is looking for a fight that
you won't win.

> A proper legal opinion is needed which is why I brought this to the
> Foundation list rather than to one of the development lists.
> 
> I am not sure exactly how this might work.  Perhaps we would have a
> policy advising developers to distance themselves from software
> patents.  Perhaps it would be a matter for the foundation lawyers to
> recommend using a build flag if the legal status of code is challenged by
> customers/auditors/competitors.
> 
> It was my hope that the foundation could seek the necessary legal advice
> and come up with practical solutions for developers to protect themselves.

[snip]

> We know software patents are already a problem.
> How can we start defending ourselves?

That's the million-dollar question. Thanks for bringing it up. Maybe
someone with more resources and wisdom will be able to help us all
out.

Best,
Dom