A look at the good and bad of four proposed methods for fighting
software patents.
- Prior art
- Patent pools
- Our licences
- Lobbying
1. Prior art
The plan: build up a catalogue of ideas that exist in free software
projects so that when a free software developer is threatened with
patent infringement, we can point out that the patent is invalid
because we thought of the idea before the patent was filed.
Effectiveness: Low, potentially negative. If the database is
publicly viewable, people applying for software patents could use it
as a guideline for drafting valid patents. They could see what they
have to avoid, and write their patent application so that it doesn't
overlap our prior art. If the database is not publicly viewable,
the negative effect will be avoided, but the potential gain is low.
Most patents are for ideas that we can't prove we already thought
of.
Richard
Stallman recently explained this in an
article about OSDL's implementation of this idea. There was
also a good article on CNet about Stallman's essay.
2. Patent pools
The plan: Encourage holders of software patents to make an agreement
not to sue free software users.
Effectiveness: Low. Three reasons:
- The contributors may be mostly friendly companies - in which case the
pool will contain patents that would not have been used against us
anyway.
- The contributors may have already cross-licensed those patents with the
other large patent holders - in which case, the contents of the pool will
not be available for us to use in counter-litigation.
- "Patent trolls" - parasitic companies who write no software and make
their money from buying patents and charging license fees from people who
are writing software - will be wholly unaffected.
3. Our licences
The plan: Add terms to our licences saying that if you bring patent
litigation suit against someone for using the program, you lose the
right to distribute the program in future. Many software licences
developed from the late-90s onward have attempted
this. GPLv3
attempts this too, to some extent.
Effectiveness: A bit good. This action cannot solve the problem -
it can only protect people from patent litigation in the case where
the patent holder is also a distributor of the software whose
licence contains such a clause. So this is a good idea, but it's
not enough on its own.
4. Lobbying
The plan: Try to influence legislation, inter-governmental treaties,
global agreements, and patent office policy so that software patents
are neither approved by patent offices or upheld by courts.
Effectiveness: Good, but hard work. This action can potentially
solve the problem, and it has proved practical.
See FSFE's software patents page, FSFE's WIPO page, and my
August summary of software patents in the EU. No other action
has the potential to completely save free software users and
developers from patent litigation.
