Patents and OpenMoko

[Steven Kurylo]

> 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.

> 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
> revocation.

No.

> 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.

No.

> 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
> person/company/whatever.
> This is not what we you/we want.

No.

> But as always: IANAL.

Indeed :-)

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

Not at all.

> 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.

> Oh, and it just occurred to me...
> AFAIK GPL V3 explicitely forbids software patents on GPLed code, does it?

No it doesn't.
http://www.gnu.org/licenses/gpl-faq.html#v3PatentRetaliation

If they patent software, and release that software under GPL3, they
can't sue users of that software for patent infringement.

> 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.

As long as they pledge the patents to the community, which from the
original email is their goal, there is nothing wrong with getting
patents.