Re: GPL'ed Patent Pool

[linas linas org (Linas Vepstas)]

On Mon, Sep 13, 2004 at 02:22:34PM -0500, Rob Landley was heard to remark:
> On Sunday 12 September 2004 04:09, Richard Stallman wrote:
> 
> > A few patent holders have signed such licenses.  This isn't really a
> > pool, in the usual sense, because each patent is individually licensed
> > to GPL-covered software.  
> 
> They've signed variants of such licenses, but there is no standard license 
> text to attach a patent to (L)GPL software, in a way that the patent license 
> applies only to (L)GPL software (and not BSD or proprietary software) and 
> terminates if the (L)GPL terminates.

There is a big benefit to having a standardized, vetted license ready
to go.  Today, if a patent holder wanted to do a 'good deed' and put
thier patent out under a GPL-supporting license, they'd be up against
a huge expense, never mind the problem of 'designing' a license that
did what they wanted.  The legal fees of drafting something new 
and completely custom like this are enormous.  Having a standard 
document removes this barrier.

> > If 10,000 patents had already been licensed
> > in this way, that would not put any additional pressure on patent
> > holder number 10,001 to participate
[...]
> > Therefore, even if everyone that likes free software licenses patents
> > in this way, their having done so would not pressure anyone else to do
> > so.  
[...]
> A third goal, which is harder, is defending against a big evil company like 
> Microsoft (or potentially Sun, or Oracle with a Canopy style management 
> change).  And this group of patents would give us the same thing any other 
> group of patents does: something to countersue with.

The docterine of 'mutual assured destruction' is what drives companies
to cross-license each-others patents.  

Suppose I, as an individual held one patent, and I implemented it in
gnome-foo.  But suppose gnome-foo also infringed on one patent from
small-company X.  Suppose that small-company X in turn infringed upon
my patent.  Then, if they attack, I can bargain and cross-license
my patent.  Right? Standard stuff.

Now suppose that "my patent" wasn't something I personally invented; 
rather it was something I'd acquired rights to somehow, e.g. by
purchasing it from the original inventor.  Then te above defensive
tactic still works. 

See where I'm trying to go?
Now suppose that I'd acquired the rights to "my patent" not by
purchase, but through a contract/license from RedHat.  Oh, by
the way, RedHat has licensed this patent to all GPL'ed software
developers; but that, I hope, is immaterial.  I, as the author
of gnome-foo, suffer damages when Company X infringes on "my patent".
(I am suffering because gnome-foo no looses has a competitive 
advantage over company X's product when X infringes on "my patent".)

There is one catch with the above scenario, and its a big one: 
the defense works only if company X is infringing on "my patent",
as implemented in gnome-foo.  The fact that company X is probably
infringing on *some* GPL'ed patent is not enough to save me; I can't
threaten them with these other infringements because I'm not damaged
by them (right?).  

If the above theory is good, then it would seem to be able
to defend the bigger, more complex GPL'ed projects against the bigger
companies with bigger portfolios (since the likelyhood of mutual
infringement is that much higher).   

> Now admittedly most of the big companies have already cross-licensed 
> everything, in a way that leaves the little guys vulnerable.  

The trick is to stock the pool with patents that haven't been 
widelt cross-licensed.

> if SCO had directly sued Red Hat or end users, it's not clear IBM would have 
> stepped in pro bono to defend them.

If IBM relicensed thier patents to me, then they wouldn't have to 
pro-bono anything; I'd go begging to EFF or something for that.
I need a license that effectively lets IBM's patents be "my patents"
so that I can go defend them.

> This is why it's important to get small companies like SGI and Red Hat to step 
> in with their contributions, contributions that are not already licensed to 
> the big companies, to prevent somebody like Microsoft from doing a divide and 
> conquer.

Bing.  And, for that, we need a well-known, well-understood "famous"
license that small companies can use.

> Third is that I believe patent pool members can enforce other people's patents 
> (defensively weilding the whole pool).  

Yeah, this is the tricky part, which is why I proposed the above.
This is the part that needs some good creative energy ... 

--linas

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