Re: Negotiating for using Royalty Free patents

[Ryan McDougall <ryan mcdougall telusplanet net>]

I agree with all the points people have raised, but no one has addressed
the issue of actually asking the companies, or whether the GNOME
Foundation should be using their "inside contacts", or even just their
leadership position, to begin doing the footwork involved in convincing
these companies.

Moreover, after taking a brief gander through the US patent DB, I can
say that we are basically screwed. The patents granted so ridiculously
broad that they cover basically any GUI app. We *have* violated
someone's patent; its just a matter which one, if the holder finds out,
if they decide to sue, and whether we can find prior art. Apples drawer
patent is so obviously obvious (#6133918) it boggles the mind that it
was even granted. Although I guess thats why they only use them for
defence, they'd be laughed out of court if they tried pressing their
luck. 

That doesn't change our position though: we need a better policy than
"head in the sand/don't ask-don't tell". I think this is where we need
some more leadership from the Foundation. Should we negotiate with these
companies? Should we build a war-chest or prior art, and implement what
is covered therein? What would RMS say? We clearly can't ignore the
situation, or can we? Should we just implement patented methods, knowing
we are already violating someone's patent and dare them to sue a not for
profit project?

I don't have all the answers, neither do I have my own lawyer, but below
is what I sent to Apple via the address Mike gave to me:

Hello,

I represent a major desktop project for Free Software operating systems
(http://www.gnome.org) and I was wondering if there was an individual I
could speak to regarding licensing Apple patented GUI elements, such as
"Spring Loaded Folders" (#6061061) or "Drawers" (#6133918), to cite just
two specific examples.

As is common knowledge in the software community, many software patents
are overly broad and easily cover many softwares products or projects
who may have "violated" them unknowingly, or thinking the method was far
too obvious to be patented. Yet more software patents are voided by much
prior art, where the patent applicant or patent office was negligent in
their research, hoping small developers won't have the resources to
fight back. 

As a Free Software project, we do not have the resources to file
defencive patents; nor do we have the resources to fight a patent
infringement case in court. We only wish to write good software, without
falling afoul of major companies like Apple. We are not scoff-laws, nor
are we in competition with Apple. Therefore I desire to find some means
to properly license any software patents we may have used inadvertently,
or wish to use in the future.

As a Free Software project (and not-for-profit organization), we can
neither pay to license the patents, nor does our software license
(http://www.gnu.org/licenses/gpl.html) allow us to burden the end-user
with patent obligations (see section 7). Therefore what we propose is to
negotiate some sort of limited, royalty-free license from your company
to our non-profit organization, so long as it complies with the GPL. A
precedent for such a license can be found here: http://www.levien.com/
patents.html.

We think your company can benefit from such a licensing deal by clearing
up any legal grey area surrounding Free software projects, many of which
Apple relies on in MacOS X (http://www.apple.com/opensource/), by
offering an explicit license. This would allow free software projects
pursue more advanced lines or research, and provide a legal precedent of
observing the validity of your patents. This is opposed to the
possibility that, some time in the future, Apple will to legally wrangle
with the Free software community, causing bad will among the free
software projects that Apple relies on (and the resultant bad press), or
at worst having some patents invalidated because of prior art.

I hope you will seriously consider my proposition, and have a reply for
me promptly.

Sincerely,
Ryan McDougall
GNOME Project