Zero Tolerance for Patent Hoarders

A commentator on Slashdot asked me several important questions about Sun's approach to patents; I'm copying the answer I left there so I can find it more easily in the future. Ogerman says:

Regardless of license choice, there is one big fly in the ointment: software patents. Lets just put it on the table.. the primary reason many members of the Open Source community have a distrust of Sun is because of this issue.

So let me be perfectly clear. Sun has never been a patent terrorist and does not intend to start now. Sun accumulates patents in parallel with software development in just the same way that all US corporations do (I call this "parallel filing") - it would be irresponsible to do otherwise. However, our policy is to grant these patents to the communities around the software they relate to. We have them for our defence, and for the defence of those we partner with including open source communities.

If you read the license that you are granted by the Java specifications, you'll find that they give you an unrestricted blanket grant of all the patents Sun has that might be infringed by Java implementations. The same is true of the CDDL and OpenSolaris - if you work in the OpenSolaris commons, you have the full use and protection of Sun's patents. As more companies work in that commons, the CDDL will force them to donate all their patents too. Those grants survive anything that may happen to the companies involved, so even a hostile acquisition would not result in the loss of patent protection. Blanket grant provisions incrementally build a meshed patent commons that promises safety for developers and as it grows offers protection against patent terrorism.

Until we're able to reform the patent system (and Sun is a firm believer in patent reform and is working behind the scenes in Europe too to promote sanity) the smart thing to do is not to neglect patents, any more than it would be smart for a policeman who opposed gun ownership to protest by not wearing body armour. However, I think the F/OSS meta-community should show zero tolerance for patent holders who don't give the communities in which they work blanket protection from their patent holdings.

This does not mean I want to see lots of individual patents in some way made public. Software patents are deeply flawed and breach the social contract implied by patenting because they do not usually provide the know-how in a way that the public commons is enriched. Software patents are not sources of either sample code or of inspiration, and I can't see why it is helpful to "grant" them to the meta-community outside the source commons to which they relate. Enumerated, untargetted grants miss the point and glorify patents. Instead, I want to see corporations forced to donate all patents that are used by the various code commons they care about, with a blanket, unenumerated, blind grant and an enforceable patent peace. That's why I am a fan of the MPL/CDDL!

That's why I'm also not a proponent of multiple licensing for OpenSolaris (something else Ogerman asks about) - yes, I have considered it. If people could use the GPL as their license rather than CDDL, they would not have to contribute to the patent commons surrounding OpenSolaris or be subject to its patent peace provisions. Multiple licenses are great all the time they share values, but I am so committed to creating a patent-safe developer commons around OpenSolaris that I feel it would be a bad idea to multi-license CDDL-licensed code until the GPL has suitably strong patent provisions. Once the GPL becomes combinable and includes patent protection, I would be very happy to revisit this view.

Comments:

I always find it funny when people talk about Sun and how they have to keep an eye out for them when it comes to stabbing the OSS community in the back when it comes to patents because the first thing that comes to my mind is an article by an attorney that was representing you guys when a bunch of laywers from Armonk, NY came to Sun's offices and asked for 20mil claiming you were violaiting their patents. Maye they've changed but it's hardd to believe they've changed completely when one estimate I read estimated IBM's revenue from patent licensing was around 1billion.

Most companies that developo products need to worry about their IP. The FOSS crowd may not like software patents and may not apply for them but now that commercial software vendors are open sourcing their once proprietary software they're going to have to deal with some baggage including patents. I don't see the big deal. There are some that are just too idealistic when it comes to patents without being pragmatic about it. If you can't be pragmatic about your ideals, you won't be able to take the many steps required to acheive them. We have software patents today, they have to be taken into account.

Although people are probably jjust ticed off because the most often posted comment regarding open sourcing solaris was just something like "good, we'll take out the bits that we want and throw away the rest". When it turned out the CDDL wasn't GPL compatible people probably got ticked off.

Posted by Tom on May 18, 2005 at 06:11 PM PDT #

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