Ten Reasons The World Needs Patent Covenants

Yosemite Valley River

Among the things Sun does to protect Free software developers from patent threats is to issue patent non-assert covenants. We did it for ODF, we did it for UBL, we did it for SAML, we did it for WebSSO, and we just did it again for OpenID. The idea has spread a little but needs to spread much more widely. Here's why.

  1. It's a blanket promise connected with the technology in question that's not restricted to particular facets or features - it doesn't just have a list of a few carefully-selected patents and leave you to wonder what's not granted. A blanket statement like this just says "no need to look, you're safe, Sun is on your side".
  2. It's irrevocable. It's a promise you can rely on for the long term, regardless of changes in Sun and the industry.
  3. It's global. No games involving smiles in one country or state and attacks in places that don't hit the news so much or have laws that encourage patent aggression.
  4. It's not time-limited for the projects where Sun is able to join the process - there's no "everything before this point" clause. For example, it extends into new features added to future versions of ODF all the time Sun continues contributing to its development, and doesn't end if Sun stops participating.
  5. It's reciprocal (we won't sue you if you don't sue the community). That means that we're still able to take action to protect ourselves and the community we participate in, despite providing rock-solid safety for developers and end-users.
  6. It builds a web of protection because it is reciprocal. As each new participant offers a similar covenant, the consequences of a patent action on any member of the community become greater and greater, enforcing the peace more strongly.
  7. There's no bureaucracy. Some moves in the past have sounded generous but have required some sort of action to register a license or act in some other way that limits redistribution of software that's trying to benefit from the protection.
  8. It's simple and clear. There is no game being played and you tell because you can understand the whole thing. It's about as simple as an effecive and binding legal document can be made.
  9. There's no "essential claims" language. Most statements like this one include language that says that you only get a "waiver" if you've no choice but to infringe the patent - according to the patent holder, that is, there's no certainty available! This statement sets you free regardless, no judgement call required.
  10. It's cheap! You don't have to search your portfolio for relevant patents if you don't want to, you can issue a non-assert covenant just for the cost of typing the document.

Of course, this doesn't help protect against patent trolls directly (although over the long term it will since most patents in an area come from parallel filing), nor does it address the problem of deficient covenants, but I believe a key improvement to the world of standards would be to have all bodies generating software patents require participants in their processes lodge patent non-assert covenants instead of the common current practice of simply requiring a best-effort disclosure.

It's high time standards bodies worldwide caught up with the needs of open source. We need more companies to issue - and expect - patent non-assert covenants, especially since those with the largest patent portfolios have yet to start issuing them, despite their claims of support for open source. Some time soon we'll need to collectively shun "standards" (and indeed vendors) who won't protect developers in this way.

Comments:

Software patents are bad, bad bad. You have no way to reform it in a way they become good, no way. You can only change things the way "big firms" have less damages, still threatening independent developers and SME, they develop Free Software or proprietary software makes no difference. And there are no "patents troll", if you believe that software patents are legitimate, they are SIMPLY PATENTS OWNER. Are ideas implemented in software patentable? If so, they are defending their property. If not, and is what I think, software patents have to die, the sooner the better for the entire umanity.

Posted by markit on May 21, 2007 at 08:36 PM PDT #

Markit: While I respect and mostly agree with your views, they are impractical. We would be better off without software patents (indeed, I am proud to have been instrumental with others in preventing their introduction into European law), but the fact is they exist in the US, Australia and other places and to ignore them is illegal if you have shareholders.

And I disagree with you (and, indeed, Mark) about trolls. I believe one of the fatal flaws of the patent systems is they allow companies motivated purely by extortion and not by the increase of knowledge to game the system for financial gain. But I agree with you that as a consequence the system needs reform.

Posted by Simon Phipps on May 21, 2007 at 10:22 PM PDT #

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