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Patent Promises Are Like Copyleft for Patents (Lit Review)

February 18, 2015

Who

Red Hat / IBM / Google / Red Hat again

What

Red Hat Patent Promise / IBM Patent Promise / Google Patent Pledge / Article about patent promises by Red Hat

Where

Red Hat Patent Policy / IBM Patent Promise (PDF Document) / Google Patent Pledge / Article @ Red Hat

When

2001 / 2005 / 2013? / 2004, respectively

The Gist

Software patents are an unfortunate part of our reality, but FOSS, the antithesis of software patents, is a source of vast innovation
Therefore, some companies with large patent portfolios have legally pledged not to enforce patents against potentially infringing FOSS
These companies, at least on the surface, appear to recognize why software patents stall and stifle innovation

The Good

  • These companies promise not to sue even when OSS infringes their patents!
  • The promises are all easy to understand and clear
  • All 3 promises include a “stick it to the man” clause, revoking the promise to those who bring patent litigation against OSS

The Bad

  • There aren’t more companies making this kind of promise?
  • Where’s the text of the Novell promise?
  • No video of the creepy IBM Linux commercial from the early 2000s which is referenced by the Red Hat article

The Questions

  • How many patents do Google and IBM have which aren’t included in the promise? Why?
  • Why don’t the IBM or Red Hat promises include a “forever” clause in the event the patent is sold, like Google’s?
  • Has any of the companies ever made good on the revocation clause? Who was the bad apple deserving of a revocation of the promise?

It has been said that the United States of America is a haven of invention and creativity. America has been responsible for an innumerable range of creations, from the Internet (though not the world wide web, which Britain rightly deserves credit for), to the assembly line car process (the implementation of widely accessible, virtually identical cars), and even the iconic processed food staple of cheese whiz.

Going hand-in-hand with this pool of innovation is a legal mechanism for protecting the time and investment these inventors put into their inventions, which are known around the globe as patents. Like many areas of law, patents are a large and mysterious body of legalese, uninterpretable by most laymen. At the most basic level, a patent is legal protection from another person or company profiting (for free) from the perceived work of the patent holder for a limited time. The rationale is that while competitive products using methods described in a patent shouldn’t be prevented forever, the inventor(s) should be granted a long period of time to be the exclusive profiters from their invention, and in doing so, protecting innovation.

The concept of the patent is wonderful idea in theory. Yet like most theories, what happens in practice can differ greatly. Patent law has been used repeatedly to prevent software competition. In fact, because code is so different in its application and use than physical products or processes, many have called into question whether patents should even apply to software. As technology continues advancing, the law would do well to advance with it.

In the same way the copyleft uses the system “against iteself,” patent promises are ways for companies with large resources to shield open source communities, using the patent system to give blanket protection to projects under the condition of keeping it open. Why can’t more things work out that way?

Rating: 3.5/5

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