Patents and OpenMoko

[Shawn Rutledge]

On Feb 7, 2008 1:00 PM, Sean Moss-Pultz <sean at openmoko.com> wrote:
> What I want is for a our company's patents to be freely available, for
> anyone, but for defensive purposes only.

This sounds like a great idea.  I think what you mean is that if a
competitor sues OpenMoko for allegedly infringing its patent, then
OpenMoko can counter-sue saying "BTW you are infringing this one of
ours too" and then it gets settled out-of-court by cross-licensing,
right?  But I can't think of a way to legally bind the patent to be
used for defensive purposes only.  Whatever method you come up with
would have to work in multiple countries, right?

One technique I know of for the US is the provisional patent.  My
understanding is that you pay a small fee to file a sort of
"pre-patent" which will be accepted immediately without review.  Then
you have one year in which to finish the real patent application, but
the date will be set to that of the earlier provisional patent; so the
intent is that if the competition is in hot pursuit, you can make sure
your patent date is earlier than theirs, even if the patent
application is not yet finished.  But, if you fail to complete the
full patent application within one year, the ideas contained in the
provisional patent become unpatentable!  because the USPTO
(supposedly, if they aren't too lazy) always review prior patents
before granting a new one... and that includes provisional patents.
So ever since I heard of it, this has always seemed to me a good
low-budget way (within reach of individual free software developers,
even) to protect an idea from being patented by someone else later on.
 But I haven't personally tried to do that (although one company where
I worked did) and I would sure like to see an opinion of an actual IP
lawyer on how strong the protection is when you do that.  It's
basically just a form of prior art which is highly accessible to the
USPTO, and less likely to be ignored than just publishing the prior
art somehow.  (Then you'd typically have to go to court to show the
prior art and get the new patent overturned, right?  Whereas with a
provisional patent you have the chance to prevent competing patents
from being granted.)

If that technique does not protect us enough, then maybe real patents
are better.  But what is to stop OpenMoko, or some future company that
buys OM, or some company to which the patents are cross-licensed, from
using them in non-defensive ways?