--On 5. oktober 2004 10:35 -0400 "Eric S. Raymond" <esr@xxxxxxxxxxx> wrote:
Harald Tveit Alvestrand <harald@xxxxxxxxxxxxx>: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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