Patents and OpenMoko

Jon Radel jon at
Tue Feb 12 23:41:51 CET 2008

Vasco Névoa wrote:
> Hi. Sorry to barge in like this, but I don't quite understand the problem to begin with...
> Isn't open source code by definition protected against subsequent patents?
> It is part of the patenting process to search for conflicting publications; if they find any, then the candidate idea is not a novelty and cannot be patented. Publishing is the best weapon against (subsequent) patents: cheap and effective.
> I think we should just add some way to automatically timestamp every code check-in in a legally binding way, like using some outside certification entity's digital signature (that carries a legally recognizable timestamp).
> An open-source public repository is a valid publication of ideas, which are therefore not patentable.
> What do you think?

Bogdan Bivolaru already pointed out some practical issues with your
theoretical outline.  However, there are some additional issues:

The biggest in my view is that you seem to assume that open source
developers somehow (magic?) manage to write only code which does not
infringe (in somebody's eyes) on existing patents, or won't infringe on
already filed patents that haven't been published yet.  There are even
legal reasons to avoid doing a patent search before you start developing
something, as you then avoid knowingly infringing, which makes a
difference, at least in the US.

Then there's the practical matter that if you have a collection of
patents you can frequently come to some cross-licensing agreement if
someone else in your industry starts hassling you with their patents.
If you have nothing, it's much easier for them to grind you into the
dirt, if only with legal fees, if they so desire.

--Jon Radel

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