Patents and OpenMoko

Steven Kurylo sk at
Mon Feb 11 23:03:29 CET 2008

> 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...

It differs in jurisdictions, but what most people confuse it trademark
and patents.  You can lose a trademark if you don't defend it.
A starting point for research:

Also you can lose your patent if you don't implement it, which is
complete different from dilution but easy to confuse.

> 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?

I have no idea if there is case law.  It would be governed by
applicable contract law and what was actually agreed to...

By making a Commitment, a Contributor gives permission for others to
engage in activities it could otherwise prevent, or for which the
Contributor could collect damages or royalties. Courts have concluded
it is unfair and inequitable for Contributors to encourage others to
rely on their promise they will not enforce their patents and then sue
them for infringement for doing so

Sounds like there might be some case law there already.

> 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.

I agree.  The situation is a mess.  Just like the GPL is "copyleft",
hopefully the patent commons will become the same thing: patent
everything we can and grant everyone the right to use it.
Steven Kurylo

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