Patents and OpenMoko

Nils Faerber nils.faerber at
Mon Feb 11 11:32:49 CET 2008

Sean Moss-Pultz schrieb:
> Dear Community,
Hello Sean,
and others...

> Most of you know that OpenMoko is a fully independent company at this
> point. With this great opportunity comes many challenges. Today I would
> like to share one with you all and ask for some advice.
> We need to file patents for our hardware as well as software designs.
> While my personal views on software patents are inline with people like
> Eben Moglen, as a company, we are forced to play by the rules of the game.

Who did cast those rules in stone?

The degree of how far you want to bend is defines by your own.
The felt pressure is just "felt" and does not need to be real.
There are hundreds of companies, big and small, who by now have stated
that they will not apply for software patents. This tells me that those
rules are not so hard.

> What I want is for a our company's patents to be freely available, for
> anyone, but for defensive purposes only.

Isn't this already a problem?
>From what I know especially in the US patent system you are *forced* to
actively defend your patent, i.e. if you get to know that someone uses
your patent and is not paying you roayalties (or you get an alternative
commercial advantage like cross licensing) you have to sue him. If you
do not do so the patent can be revoked.

And you have to collect royalties since the patent system only cares
about businesses, i.e. the sole purpose of patents is to make money from
it. Not using it to make money by either sublicensing or self-use of the
IP will constitue non active use of the patent and is also a reason for

So even if you have the intend of not sueing you might be forced to
either sue others and/or collect license fees.
The expressed intend not to make money from the patent could already be
a reason for not accepting it.

So imagine someone else using the OpenMoko software on another device
with some of your patented parts in it. You would be forced to sue this
This is not what we you/we want.

But as always: IANAL.

Another problem is that software patents are still not possible at all
in the European Community, which is IMHO very good.

And apart from that software patents are a bad idea in itself. Software
is way too flexible to be described accurate enough to write a patent.
So what happens is that all software patent claims are way too broad -
they cover not only a specific invention but one patent already covers a
vast area of inventions and thus preventing further invention by others
in the whole area.

Sorry, but software patents *must* be avoided by any means!

There are for sure cases where a software patent might be well defined
and could be argued for. But as long as the legislation allows such
broad and undefined claims I am completely against it. And frankly I do
not see a way to make the patent rules specific enough for that.

For more information against software patents please have a thorough look at

Starting to collect software patents would contradict your own claim of
openness and support of free software.

> Are there any existing options available to us now? Does anyone know of
> existing companies or organizations with a similar strategy that we can
> seek guidance or partnership.
> Again, I want to emphasize that we only want our patents to be used in
> defense. And what constitutes defense is something that we want to be
> able to define (and potentially even redefine when new threats arise).

This is a noble aim but very very difficult to reach.

Speaking as a free software acitvist especially software patents are a
complete no-go.
Speaking as community guy I would say that with the software patents you
would have to sign and publish a non-revocable community contract that
sais quite explicitely for which use you would accept royaltee free use
and of which patents. Only then the community would be safe. Else, at
some later point in time, someone at OpenMoko/FIC might change their
mind and try to make money from the patents.

> Thanks in advance for the help.

My very quick advice: Don't get your hands dirty with patents,
especially with software.
You will loose a lot of credibility in the free software world and the
benefit is questionable.

> Sean

kernel concepts GbR        Tel: +49-271-771091-12
Sieghuetter Hauptweg 48    Fax: +49-271-771091-19
D-57072 Siegen             Mob: +49-176-21024535

More information about the community mailing list