--On 5. oktober 2004 10:35 -0400 "Eric S. Raymond" <esr(_at_)thyrsus(_dot_)com>
wrote:
Harald Tveit Alvestrand <harald(_at_)alvestrand(_dot_)no>:
I do think we (the community) have a chance at finding ways to render
those patents that crop up in the commons harmless.
And what ways would those be?
One posting I found interesting was Larry Rosen's article at Newsforge:
<http://trends.newsforge.com/article.pl?sid=04/07/22/201217&tid=147&tid=110&tid=132>
In particular this piece:
MAD
Can we defend against patents by preparing to go on the offense?
During the cold war, nuclear catastrophe was averted by a policy of
mutually assured destruction ("MAD"). If any country dared to start a
nuclear war, the theory went, the devastation wreaked upon that country
would be many times worse. Not just the nuclear powers were so protected.
Through treaties and alliances, the allies of the great powers survived
under a defensive MAD shield.
So too, in the field of patents, do large patent portfolios serve the
role of stockpiled nuclear weapons. If a company with a large portfolio
is sued, it will likely own other patents that are essential to the
company that dared to sue. "Sue me," they say, "and I'll sue you back
even worse for patent infringement." In this way, a patent portfolio can
be a defense to litigation, because few will dare sue and risk their own
destruction.
Big companies, however, don't usually treat patents like nuclear weapons
against their major competitors. Instead, they license their patent
portfolios in return for cross-licenses to their competitors' patent
portfolios. This removes the competitors' arsenals from use for both
offensive and defensive purposes, leaving the cross-licensed companies
free to operate with a reduced fear of patent litigation.
Because such cross-licenses between big patent owners are usually
closely-held trade secrets, it is not easy for us to know if open source
allies will be able or willing to use their patents to defend open source
software. We simply don't know if we're shielded by the MAD patent
portfolios of our best friends.
If it was possible to set up things in such a way that it was easy for a
company to declare "no first use" on a patent in the space of standards
implementation, and very disruptive for a company to renege on such a
promise (for instance, by having all the "no first use" promises by other
companies being rendered inoperative), we might get something..... but this
is just me thinking aloud. I have not been able to get any patent lawyers
interested in pursuing/spearheading this train of thought.
Harald
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