Software Freedom Law Center

April 28, 2009 by Bradley M. Kuhn

If We Can't End Software Patents Tomorrow, What Should We Do In the Meantime?

As we've talked about in our recent podcasts, and as I mentioned in various blog posts, software patents (i.e., patents that read on software) are a major threat to software freedom. Due to this constant threat, the primary goal of the Software Freedom community must be an end to all software patents worldwide. “Patent reform” will never be enough. The hard part, though, given that abolishing the software patent system is such a long and tough war, is what to do in the meantime about software patents that stand in the way of immediate advancement of software freedom.

We've all known for some time that Microsoft will pressure (and sometimes convince) companies to give in to Microsoft's patent aggression. They know that a software patent pool can be used both as a tool to attack FLOSS, and as a revenue stream by engaging in trolling behavior. It is, effectively, their last ditch effort to kill FLOSS.

If we had the necessary political power and resources, we'd be able to end software patents soon, so that all software patents would be nullified. There are people working on this, and we should put the primary resources available behind efforts to end software patents. That's unlikely to happen soon, and meanwhile we've already seen Microsoft acting as a patent troll against FLOSS redistributors. So, the question is, what can we do in the meantime, specifically about patents that have been actively asserted?

While we cannot make the strategic move of ending software patents quickly, we must turn to tactical plans. The tactical move, then, is to disable the weapons we see actively used against FLOSS redistributors. The weapons, in this case, are individual patents that anyone holds that are actively enforced against a FLOSS redistributor.

To that end, the Post Issue Peer To Patent project has begun requesting prior art on the patents, such as the FAT filesystem ones, that have been used to attack FLOSS. If you go to their website, you can follow the links to a form that allows you to submit things you've seen in the world that could be used as prior art to reexam and perhaps destroy those patents.

It's worthwhile for folks who are privy to some information that might be prior art to submit there. This won't push forward our ultimate goal of ending software patents, but it might create an opportunity to disarm a few of the active weapons used to hurt FLOSS. The problem remains that there are thousands of these weapons out there — some of which will surely be like the RSA patent and resilient to any reexam or other such destruction attempt. Thus, we shouldn't let this tactical goal distract us from the strategic one of ending software patents.

Finally, I can't let an opportunity go by without again mentioning, as I always do, the easiest thing that developers can do that will ultimately have the greatest impact on stopping software patents. Relicense your software under AGPLv3, GPLv3, LGPLv3, or some other GPLv3-based software license. GPLv3 and its derivatives have the strongest patent protections available in any FLOSS license. As a FLOSS developer, it's unlikely you've got at your fingertips some usable prior art for some existing patent, or have political power to change the USPTO. However, you have the power to pick the license of your software, so pick the one that defends against patents best.

Posted by Bradley M. Kuhn on April 28, 2009. Please email any comments on this entry to <bkuhn@softwarefreedom.org>.

Tags: gpl, licensing, microsoft, patents

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