Patents and OpenMoko

Shawn Rutledge shawn.t.rutledge at
Mon Feb 11 22:05:27 CET 2008

On Feb 11, 2008 12:20 PM, Steven Kurylo <sk at> wrote:
> > 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.
> No.

Would you explain?  because this is very commonly believed: if you
don't defend the patent you will lose it.  Just depends how this
phrase "defend the patent" is defined I guess...

> > But as always: IANAL.
> Indeed :-)

Are you a lawyer?

> > 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.
> Definitely and thats what the patent commons are for.

What kind of protection is offered by the patent commons?  How can a
mere agreement among the parties involved (if there were any lawsuit
about a breach thereof, it would be a civil suit) be stronger than the
patent law itself, which specifies the rights of the patent owner to
license the patent and collect royalties, or to sue for infringement?
I trust that some lawyers have thought this through pretty thoroughly
by now, but it hasn't been tested, right?

> > But please do not consider software patents at any time! You will
> > instantly loose your credibility in the open source world.
> Not at all.  If they don't patent it, someone else will; then you're
> in real trouble.  Its a broken system, but its one they have to work
> with.  Sure you can point to prior art if someone else patents it -
> but challenging a patent costs money.  Usually more than the cost of
> the patent in the first place.

I suspect you are right about this, but there really are credibility
problems with software patents in general... they clearly suck, and
many developers are in denial, and waiting for them to be finally
disallowed by the gov't.  But then again, that might never happen; and
even if it did, would the existing software patents be thrown out, or
grandfathered?  It is hard to predict the future, especially ahead of
time.  Probably the large corporate special interests will get
whatever they want, in the end.

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