Re: Patents and OpenMoko

[zBog BIV]

Patenting OpenMoko, and then granting everyone perpetual, free use of the
patent is the way to go. Everyone means those who does not enforce their
patents against freedom software projects. If they do go enforce their
patent, they will likely go against OpenMoko, should they find a weak legal
spot. This would be a hard twist from the current system, just like the
copyleft concept.

Proprietary software vendors could easily join this kind of "community"
licensing for patents.
As long as you do not attack a member of the community, anyone could use any
patent.
Of course if a community member starts enforcing patents, he should be
"expelled" automatically (as in forcibly exit community). This could be
included in the patent licensing terms. Anyone breaking them, would rule
themselves out. Also the initial patent licensing agreement can not be
changed even if, OpenMoko goes bankrupt -God forbid!- and it's patents get
into Acacia Research "portofolio". This is perpetual copylefting - as free
software always evolves into something better and new, patent regranting is
more or less "guaranteed".

Alas, this does little to fight Acacia and the like.

Public Patents Foundation (pubpat.org) or Electronic Frontier Foundation (
EFF.org) could be a starting point for this effort.

On Feb 7, 2008 10:00 PM, Sean Moss-Pultz <[EMAIL PROTECTED]> wrote:

> Dear Community,
>
> Most of you know that OpenMoko is a fully independent company at this
> point. With this great opportunity comes many challenges. Today I would
> like to share one with you all and ask for some advice.
>
> We need to file patents for our hardware as well as software designs.
> While my personal views on software patents are inline with people like
> Eben Moglen, as a company, we are forced to play by the rules of the game.
>
> What I want is for a our company's patents to be freely available, for
> anyone, but for defensive purposes only.
>
> Are there any existing options available to us now? Does anyone know of
> existing companies or organizations with a similar strategy that we can
> seek guidance or partnership.
>
> Again, I want to emphasize that we only want our patents to be used in
> defense. And what constitutes defense is something that we want to be
> able to define (and potentially even redefine when new threats arise).
>
> Thanks in advance for the help.
>
> Sean
>
>
>
>
>
>
>
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Re: Patents and OpenMoko

[Nils Faerber]

Jon Radel schrieb:
> 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.

How do you want to proove that either you did or did not do that
research? This is quite pointless.
Of course it makes a difference if you knew about it or not but you can
perfectly well do an anonymous research yourself without leaving any
proof (and it is agood avise to do so in order not to start large
developments in areas that are already a patent mine field - been there
done that in the area of motion detection and picture recognition and
subesquently stopped certain developments).

> 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.

Here some more resonability would be good.

So let's think, who are the most likely players that could sue a company
like OpenMoko working in the mobile phone area? Other mobile phone
makers. Who are those? Nokia, NEC, Samsung, Qualcom, Lenovo, HTC,... All
those companies are magnitudes larger than a start-up like OpenMoko.

The cross licensing trick goes like this: You infringe on somebody
else's patent (knowingly or not aside). They come to you and threaten
you with sueing you - you shiver and fear they are taking you out of
business. Now you go down your cellar and browse your patent pool and
look at the other's products if they could possibly by coincidence (<-
this is the point here!) infringe on one of your patents.

So now step back and calculate the probably that the other party really
infringes one of your patents? If there is Qualcom vs. Nokia then there
is a good chance but those two do this business for decades and are huge
companies. For a small company even if you are able to find an infringed
patent they come up with at least a dozen more of your infringements.

As a small company you will loose, no way around it and the dream of
cross licensing is for small and new players just a dream. It is
unrealistic to assume that it could work.
For small businesses the only way to benefit from patents is to have a
real new invention and license it to some bigger player and make money
from it.

To the special case of OpenMoko as long as the GTA devices are concerned
they have no single piece (sorry, no offense!) of great invention in
them that would be a good candidate for a patent. And even if you can
probably construct, with a lot of extra "inspiration", say, 10 patents
on soft- and hardware? Maybe 20? But that's about it.
And now go back to those big players and count their's - IBM is well
known for being patent record holder, they file more than 10 patents - a
day!

So is cross licensing for a company like OpenMoko (and similar)
realistic? I think not.
Should someone like OpenMoko aim at doing so? I also think not. Do not
feed the troll.
The patent system is broken, especially regarding software. It could be
fixed but nobody has until now made any good proposal. Why? Because the
patent system in itself has become a huge business and doing a reform
would mean that many people loose a lot of profit - starting with lawyers ;)

So my advise is: Stick with the very old patent model. If you have a
really cool new invention, go for a patent! But this should be really
cool and really new technology, especially hardware. Be very careful
with software! I would advise not to touch software patents at all.
If you are behind patents just for the cross-licensing, forget about it.

Th

Re: Re: Patents and OpenMoko

[Jon Radel]

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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Re: Patents and OpenMoko

[Bogdan Bivolaru]

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?
Yes, normally patent granting offices do search for prior art, but how 
thorough do they seek it?
How do you deal with incapable and ill wanting individuals inside patent 
granting offices?

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.
From what I have seen so far prior art is most successful as an 
argument when actually challenging the patent in justice / in patent 
offices. By showing prior art, "freedom" software developers can demote 
a patent: look no further than the patent suit filed by Trend Micro 
against Barracuda / ClamAV. What is actually needed every time someone 
is trying to enforce a bogus patent (called a thicket) is a white knight 
that comes to rescue freedom projects. Although the license fee was not 
very high for the TrendMicro patent and they could have easily paid, 
Barracuda stood up for ClamAV, in fact defending the project. 
http://blogs.zdnet.com/open-source/?p=1952

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).
Of course one can assume that if most freedom projects were using 
digital signatures and timestamping authorities, that could discourage 
patent holders to go against freedom developers. But I should remark 
that a freedom & "free-beer" timestamping authority has yet to be found! 
Maybe http://cacert.org will take up the role, maybe not.

An open-source public repository is a valid publication of ideas, which are 
therefore not patentable.
Patents are a danger to freedom software because they force hobby 
developers (poor, no money) to hire lawyers to reach the point in the 
justice system where presenting prior art is actually relevant for 
challenging the patent - in a counter-suit.
Of course that's what the Linux defense fund is for, but one should know 
that such a fund is not limitless - it can only finance a part of free 
projects, probably the most important ones.


Going back to the Barracuda example, Barracuda says " there is a lot of 
prior art here 
 
[http://www.infoworld.com/article/08/01/29/Trend-Micro-stresses-tested-patent-in-trade-case_1.html 
] and the patent is overly broad."


But fortunately, courts move slowly. There is plenty of time for 
discovery [discovery of prior art that is] to proceed, on both of 
Barracuda’s defense claims. We’ll have legal and political answers on 
the use of patents to deny innovation long before any verdict here.


The fact that "courts move slowly" is fortunate only because Barracuda 
is a company with a fair amount of lawyers and financing , if it weren't 
for them ClamAV would have either be forced to either look for sponsors 
for the suits or to close doors.

What do you think?
Eh, i guess it is not very easy to find sponsors when someone's putting a cold knife at your neck, is it? Who [as in what company] would risk investing their money in such a risk endeavor? Maybe they will help you, maybe they will try to avoid you and your problems and find alternatives to your software. 


If you want to learn how much innovation lies in a patent and about patents in 
general please go to http://www.researchoninnovation.org/WordPress/.

I had learnt that the "leading country" in bogus patent claims is US, which is 
currently undergoing a patent reform: 
http://arstechnica.com/news.ars/post/20080205-eff-says-patent-reform-could-bust-its-patent-busting-project.html
Quoting from the EFF stance on this reform (link above):
"The post-grant review system would allow nonprofits like the EFF to
challenge bum patents for only 12 months after they are issued. In the
EFF's view, this isn't nearly enough time to become aware of dodgy
patents and the impact they will have on the tech community at large.
The group would prefer to retain the current reexamination system and
	simply add post-grant review to the process." 


Hope my post helps you understand better the current patent system.
Let us how the patent system will shape up after this reform! I hope for the 
better!




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Re: Patents and OpenMoko

[Vasco Névoa]

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?


- Mensagem Original -
De: Sean Moss-Pultz <[EMAIL PROTECTED]>
Data: Terça-Feira, 12 de Fevereiro de 2008, 4:25
Assunto: Re: Patents and OpenMoko

> Nils,
> 
> Thanks a lot for such an indepth reply. I need to think about a 
> lot of 
> these points. Let me just comment on a few now...
> 
> On 2/11/08 Nils Faerber wrote:
> 
> [snip]
> 
> > > Are there any existing options available to us now? Does 
> anyone 
> > know of
> > > > existing companies or organizations with a similar strategy 
> that 
> > we can
> > > > seek guidance or partnership.
> > > > 
> > > > Again, I want to emphasize that we only want our patents to 
> be 
> > used in
> > > > defense. And what constitutes defense is something that we 
> want 
> > to be
> > > > able to define (and potentially even redefine when new 
> threats 
> > arise).
> > 
> > This is a noble aim but very very difficult to reach.
> 
> Perhaps. But I think we should try our best...
> 
> > Speaking as a free software acitvist especially software patents 
> are a
> > complete no-go.
> > 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.
> 
> I think there is a way to get around this legal. We're getting 
> some 
> advice from the SFLC later this week. I'll keep everyone posted as 
> to 
> our plans.
> 
> > > > Thanks in advance for the help.
> > 
> > My very quick advice: Don't get your hands dirty with patents,
> > especially with software.
> > You will loose a lot of credibility in the free software world 
> and the
> > benefit is questionable.
> 
> With all due respect, I must disagree here. Not filing for 
> patents, is 
> hardly an option for a global company in this day and age. The 
> larger we 
> get, the more of target we become.
> 
> I'm confident we can reach a solution that will be helpful for 
> both our 
> business and the community. I will keep you all posted as to our 
> progress.
> Sean
> 
> 
> 
> 
> 
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Re: Patents and OpenMoko

[Sean Moss-Pultz]

Nils,

Thanks a lot for such an indepth reply. I need to think about a lot of 
these points. Let me just comment on a few now...


On 2/11/08 Nils Faerber wrote:

[snip]

> Are there any existing options available to us now? Does anyone 
know of
> > existing companies or organizations with a similar strategy that 
we can

> > seek guidance or partnership.
> > 
> > Again, I want to emphasize that we only want our patents to be 
used in
> > defense. And what constitutes defense is something that we want 
to be
> > able to define (and potentially even redefine when new threats 
arise).


This is a noble aim but very very difficult to reach.


Perhaps. But I think we should try our best...


Speaking as a free software acitvist especially software patents are a
complete no-go.
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.


I think there is a way to get around this legal. We're getting some 
advice from the SFLC later this week. I'll keep everyone posted as to 
our plans.



> > Thanks in advance for the help.

My very quick advice: Don't get your hands dirty with patents,
especially with software.
You will loose a lot of credibility in the free software world and the
benefit is questionable.


With all due respect, I must disagree here. Not filing for patents, is 
hardly an option for a global company in this day and age. The larger we 
get, the more of target we become.


I'm confident we can reach a solution that will be helpful for both our 
business and the community. I will keep you all posted as to our progress.


Sean





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Re: Patents and OpenMoko

[Steven Kurylo]

> 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:
http://en.wikipedia.org/wiki/Trademark_dilution

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...

http://www.patentcommons.org/resources/about_commitments.php#type

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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Re: Patents and OpenMoko

[Joe Pfeiffer]

Nils Faerber writes:
>
>Isn't this already a problem?
>>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.

IANAL, but -- no.  You seem to be confusing patents with
trademarks -- you can lose a trademark by failing to actively defend
it; a patent can't be revoked on those grounds (now, if you let
somebody use your patent for a decade before you sue them, you could
end up getting far less damages than you would have otherwise.  But
that's a different issue than losing the patent).

>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.

Again, no.  There is no requirement that you charge royalties.

>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.
>
>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.

It's also not the law.

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Re: Patents and OpenMoko

[Shawn Rutledge]

On Feb 11, 2008 12:20 PM, Steven Kurylo <[EMAIL PROTECTED]> wrote:
> > 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.

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...

> > But as always: IANAL.
>
> Indeed :-)

Are you a lawyer?

> > 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.

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?

> > 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.

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.

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Re: 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.

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Re: Patents and OpenMoko

[Nils Faerber]

Sander van Grieken schrieb:
[...]
>> I really hope that OpenMoko will not be covered by any patents. (but I'm
>> sure that there's a patent for a device allowing wireless communication
>> somewhere)
> I totally agree with Lionel here. It will be bad PR wise and it's very 
> difficult to
> enforce. Openmoko hardware and software are already covered by copyright, and 
> I think a
> patent doesn't add any protection. Even if parts will be covered by a patent, 
> chances
> are that some smart company can circumvent it by making small 
> changes/improvements.
> 
> Besides, what's there to patent? If I understand correctly, anything that's 
> published
> (or available publicly) before the patent cannot be patented anymore, so that 
> would
> include all openmoko software up to today, the CAD design for the casing, 
> ideas on the
> wiki etc.

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

Will that mean that OpenMoko code will stick with a modified GPL V2 (V2
usually has the clause "or any later version" which would include V3 and
thus also the non-patent clause) or change license altogether?


Software patents are evil - there is no way to argue for it.
The only way to defend against patent issues is to have a nice and
provable prior art collection. A public SVN, public WiKi and public
web-pages are IMHO the best way for that. Web bots mirror the whole
stuff on hundreds of independant servers and it can easily be researched
by everyone.
More should not be needed.

The assurance you might feel by having a stack of patents is more like
self-deception. Do you really think you can compete with your patent
portfolio with a company like Nokia? Motorola? Samsung? NEC? Qualcom? No
way. So why trying?

Wouldn't it better to head a new development without patent fear?
To show to other companies that patents are not the only source of
whisdom, cash-flow and money making? I think the IP issue is largely
exagerated these days. Yes, there are IP infringements in countries like
China. But how do patents help there? They don't. They only handicap us,
the people from exactly the countries that made the original invention.

I had the impression that OpenMoko was already heading a revolutionary
new way of creating a product, i.e. working together with a community,
in the open and to work *together*.  A company that first time has
proven that making a mobile phone is no rocket science and not an area
covered with legal trapdoors - up to now it worked!
If you want to patent anything, well, do it with the hardware. The
hardware patenting process is well defined and a patent in some hardware
areas of the NEO phones will not hurt anybody.

But please do not consider software patents at any time! You will
instantly loose your credibility in the open source world.

Or to make it more concrete: If OpenMoko should file *any* software
patents I would have to stop to work with OpenMoko, as sorry as I would be.

> grtz,
> Sander
Cheers
  nils faerber

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Re: Patents and OpenMoko

[Nils Faerber]

Sean Moss-Pultz schrieb:
> Dear Community,
Hello Sean,
and others...

> Most of you know that OpenMoko is a fully independent company at this
> point. With this great opportunity comes many challenges. Today I would
> like to share one with you all and ask for some advice.
> 
> We need to file patents for our hardware as well as software designs.
> While my personal views on software patents are inline with people like
> Eben Moglen, as a company, we are forced to play by the rules of the game.

Who did cast those rules in stone?

The degree of how far you want to bend is defines by your own.
The felt pressure is just "felt" and does not need to be real.
There are hundreds of companies, big and small, who by now have stated
that they will not apply for software patents. This tells me that those
rules are not so hard.

> What I want is for a our company's patents to be freely available, for
> anyone, but for defensive purposes only.

Isn't this already a problem?
>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.

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.

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.

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.

But as always: IANAL.


Another problem is that software patents are still not possible at all
in the European Community, which is IMHO very good.

And apart from that software patents are a bad idea in itself. Software
is way too flexible to be described accurate enough to write a patent.
So what happens is that all software patent claims are way too broad -
they cover not only a specific invention but one patent already covers a
vast area of inventions and thus preventing further invention by others
in the whole area.

Sorry, but software patents *must* be avoided by any means!

There are for sure cases where a software patent might be well defined
and could be argued for. But as long as the legislation allows such
broad and undefined claims I am completely against it. And frankly I do
not see a way to make the patent rules specific enough for that.

For more information against software patents please have a thorough look at
http://www.ffii.org/
and
http://www.nosoftwarepatents.com/

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

> Are there any existing options available to us now? Does anyone know of
> existing companies or organizations with a similar strategy that we can
> seek guidance or partnership.
> 
> Again, I want to emphasize that we only want our patents to be used in
> defense. And what constitutes defense is something that we want to be
> able to define (and potentially even redefine when new threats arise).

This is a noble aim but very very difficult to reach.

Speaking as a free software acitvist especially software patents are a
complete no-go.
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.

> Thanks in advance for the help.

My very quick advice: Don't get your hands dirty with patents,
especially with software.
You will loose a lot of credibility in the free software world and the
benefit is questionable.

> Sean
Cheers
  nils

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Re: Patents and OpenMoko

[Sean Moss-Pultz]

Clarke Wixon wrote:

Sean Moss-Pultz <[EMAIL PROTECTED]> writes:

Yes this is exactly what we want. We want to make the patents we get 
freely available, but also only usable for defensive purposes, forever 


Sean,

I am a registered U.S. patent attorney and a member of the California Bar,
and I reside in the San Francisco Bay Area.  And I'm also a part-time OpenMoko
developer and enthusiastic supporter (you'll see my name all over the Bugzilla
bug tracker, for example, but I haven't completed any significant projects of my
own yet).  I have a GTA01 I'm proud to own and work on.

I would be happy to discuss some real-world intellectual property strategies
at your convenience.  I have a good understanding of the U.S. patent system,
how you might be able leverage that (and other approaches) to advance OpenMoko's
specific objectives (not to intimidate others!), and how to best use open-source
licenses.

Anyway, I'll get in touch with you via email and maybe we can set up a meeting
to discuss more concrete goals and strategies.


Sounds great. I would love your help!

Sean

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Re: Patents and OpenMoko

[Clarke Wixon]

Sean Moss-Pultz <[EMAIL PROTECTED]> writes:

> Yes this is exactly what we want. We want to make the patents we get 
> freely available, but also only usable for defensive purposes, forever 

Sean,

I am a registered U.S. patent attorney and a member of the California Bar,
and I reside in the San Francisco Bay Area.  And I'm also a part-time OpenMoko
developer and enthusiastic supporter (you'll see my name all over the Bugzilla
bug tracker, for example, but I haven't completed any significant projects of my
own yet).  I have a GTA01 I'm proud to own and work on.

I would be happy to discuss some real-world intellectual property strategies
at your convenience.  I have a good understanding of the U.S. patent system,
how you might be able leverage that (and other approaches) to advance OpenMoko's
specific objectives (not to intimidate others!), and how to best use open-source
licenses.

Anyway, I'll get in touch with you via email and maybe we can set up a meeting
to discuss more concrete goals and strategies.

Regards,
Clarke



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Re: Patents and OpenMoko

[joerg]

Am Fr  8. Februar 2008 schrieb Sean Moss-Pultz:
> of the case CAD files is not software (per say). In the future you will 
> see a lot more. We don't believe software is only place people need 
> openness.
So does this mean we will eventually see the circuit diagrams (and even PCB 
layouts??), so we don't have to reverse engineer from PCB, like every rogue 
competitor would do (or surely has done already in China, for GTA01)?

j

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Re: Patents and OpenMoko

[Sean Moss-Pultz]

Sean Moss-Pultz wrote:

Andres Paglayan wrote:

what about posting this exact question at groklaw?


Oh yes. That would work well...I'll make a post later today.


Looks like they already picked this up...

  [PJ: Yes. Contact Open Invention Network and Software Freedom Law
  Center. Every patent expert I have ever had the opportunity to discuss
  this with says the community should patent everything in sight asap,
  for defensive purposes against the drooling ghouls. Publish the rest
  of what you invent with a verifiable date, if you are a purist.] -

I'll have to contact my friends over at SFLC. It's been a while since 
I've said hi...


Thanks a lot for all the great comments and direction!

Sean















On Feb 7, 2008, at 1:00 PM, Sean Moss-Pultz wrote:


Dear Community,

Most of you know that OpenMoko is a fully independent company at this 
point. With this great opportunity comes many challenges. Today I 
would like to share one with you all and ask for some advice.


We need to file patents for our hardware as well as software designs. 
While my personal views on software patents are inline with people 
like Eben Moglen, as a company, we are forced to play by the rules of 
the game.


What I want is for a our company's patents to be freely available, 
for anyone, but for defensive purposes only.


Are there any existing options available to us now? Does anyone know 
of existing companies or organizations with a similar strategy that 
we can seek guidance or partnership.


Again, I want to emphasize that we only want our patents to be used 
in defense. And what constitutes defense is something that we want to 
be able to define (and potentially even redefine when new threats 
arise).


Thanks in advance for the help.

Sean







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Re: Patents and OpenMoko

[Sean Moss-Pultz]

On 2/8/08 Nick Guenther wrote:

[snip]

>> I really hope that OpenMoko will not be covered by any patents. 
(but I'm
>> > > sure that there's a patent for a device allowing wireless 
communication

>> > > somewhere)
> >
> > I totally agree with Lionel here. It will be bad PR wise and it's 
very difficult to
> > enforce. Openmoko hardware and software are already covered by 
copyright, and I think a
> > patent doesn't add any protection. Even if parts will be covered 
by a patent, chances
> > are that some smart company can circumvent it by making small 
changes/improvements.

> >
> > Besides, what's there to patent? If I understand correctly, 
anything that's published
> > (or available publicly) before the patent cannot be patented 
anymore, so that would
> > include all openmoko software up to today, the CAD design for the 
casing, ideas on the

> > wiki etc.

I normally don't like to add too much noise here, but I really
strongly must echo this sentiment. Why is a free software company
patenting anything? 


You should think of OpenMoko as a product company. We build our own 
software AND hardware. Free Software is only one ingredent in a very 
large picture of what it means to make open mobile devices. Our freeing 
of the case CAD files is not software (per say). In the future you will 
see a lot more. We don't believe software is only place people need 
openness.



Isn't everything in Openmoko supposed to be
already open? 


I'm not sure I understand this sentence correctly. Anything we do is 
open when we open it. But products don't get created out of thin air. 
GTA02 is amost year in a making.



Is there really any judge in the world who would believe
that anything you've done constitutes enough new work to be
patentable?


I hope so ;-)


Forgive my ignorance if that's what it is, but I was under
the impression that the sole purpose of OpenMoko was to build an open
phone, not to invent anything new (and in fact, to rely on old and
well known components for stability).


Yes this is mistaken. We try to always build stuff that is new. All of 
our hardware designs, for example, are built from scratch. We do not use 
reference designs.


We want to push the future of open mobile devices. Not (just) use what 
already exists. This puts us in a situation very real to the patent 
world. We cannot (as much as we'd like to) ignore it and hope things 
will magically go away. Nor do I want to spend our efforts reforming 
another system. Everyone only has a limited amount of time. Ours is 
focused on freeing the phone. And then exploring what that means.


Sean





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Re: Patents and OpenMoko

[Sean Moss-Pultz]

Esra Kummer wrote:

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?  


Well I am not too sure about that...

I would guess and prefer that the patent is used to ensure that no one 
else patents this and sues fic/openmoko. Otherwise it would not be a 
really free thing.. Am I right?


Yes this is exactly what we want. We want to make the patents we get 
freely available, but also only usable for defensive purposes, forever 
-- no matter what actually happens to OpenMoko, Inc.


The latter part, while somewhat pessimistic, is very important. Even if 
we go out of business, we don't want our patents to be bought up and 
then used to hurt the very Free Software projects that once (now) help us.


So what is this defence tactic now Sean? Or do you have to figure out 
that as well?


We honestly don't have this totally worked out yet.

Hope you find a solution which is good in the FOSS sense 
like you often do! Just to say it ones more: you do a great job at FIC/OM!


Thanks for your support!

Sean


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Re: Patents and OpenMoko

[Sean Moss-Pultz]

Andres Paglayan wrote:

what about posting this exact question at groklaw?


Oh yes. That would work well...I'll make a post later today.

Sean









On Feb 7, 2008, at 1:00 PM, Sean Moss-Pultz wrote:


Dear Community,

Most of you know that OpenMoko is a fully independent company at this 
point. With this great opportunity comes many challenges. Today I 
would like to share one with you all and ask for some advice.


We need to file patents for our hardware as well as software designs. 
While my personal views on software patents are inline with people 
like Eben Moglen, as a company, we are forced to play by the rules of 
the game.


What I want is for a our company's patents to be freely available, for 
anyone, but for defensive purposes only.


Are there any existing options available to us now? Does anyone know 
of existing companies or organizations with a similar strategy that we 
can seek guidance or partnership.


Again, I want to emphasize that we only want our patents to be used in 
defense. And what constitutes defense is something that we want to be 
able to define (and potentially even redefine when new threats arise).


Thanks in advance for the help.

Sean







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Re: Patents and OpenMoko

[Joe Pfeiffer]

Jonathan Spooner writes:
>So you want to patent any unique tech in the neo to prevent some scum 
>from patenting your ideas then taking openmoko to court?
>
>Then just do it!  Its in everyones interest not to see openmoko taken 
>down so I'd imagine anyone here with an ounce of sense would not have a 
>bad word to say about that.
>
>Its really that simple, is it not?

No, it's not.  Simply releasing information publicly establishes prior
art that prevents patenting by others (well, valid patents).  The idea
here is to set up an ability to defend against other companies with
valid patents that are inadvertently infringed:  "whoops, didn't
realize, sorry.  Say, if you want royalties from us, let's have a chat
about our patent X which you're infringing while we're at it..."

Patenting ideas and joining the Patent Commons seems like a really
good way of establishing that you're simply trying to protect yourself
in today's reality, not trying to profit by the broken system.

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Re: Patents and OpenMoko

[Nick Guenther]

On Feb 8, 2008 4:46 AM, Sander van Grieken <[EMAIL PROTECTED]> wrote:
>
> > I think that we all agree here that the patent system is completely broken.
> >
> > By filling patent, even for defense only, you are playing the rule.
> >
> > What I've seen so far is that small companies that cannot afford a lawyer
> > department simply choose to ignore the rules and just ignore completely the
> > patent system. In the essence of the law, as long as you don't obviously
> > *stole* an idea, you 've nothing to fear. But the system has becomed crazy
> > when you can infringe a patent without even knowing it. That's completly
> > wrong with the moral behing patent itself !
> >
> > Have you already tried to fill a patent ? Have you tried to make a study on
> > prior art ?
> >
> > I did for a few weeks and I didn't succeed. All is patented ! All,
> > completely ! Patents are as general as possible and cover everything you
> > could believe. It's nearly patents for "things" that do "stuffs".
> >
> > So whatever you do, you could be sued.
> >
> > I don't know the ressources of OpenMoko but patenting, writing and
> > submitting is a full-time job ! It would be shame (IMHO) to waste ressources
> > in this way. More : you have to fill the patents in different countries !!!
> >
> >
> > As OpenMoko does Free software, doing this, even for defensive purpose, will
> > have a terrible PR impact in the Free Softwware community. You have the
> > opportunity to just move, to ignore those silly things and to build
> > something new.
> >
> > On the other hand, if you are under a patent attack without any patents, I
> > think that the Free Software Fundation gives legal help in that kind of
> > case.
> >
> > I really hope that OpenMoko will not be covered by any patents. (but I'm
> > sure that there's a patent for a device allowing wireless communication
> > somewhere)
>
> I totally agree with Lionel here. It will be bad PR wise and it's very 
> difficult to
> enforce. Openmoko hardware and software are already covered by copyright, and 
> I think a
> patent doesn't add any protection. Even if parts will be covered by a patent, 
> chances
> are that some smart company can circumvent it by making small 
> changes/improvements.
>
> Besides, what's there to patent? If I understand correctly, anything that's 
> published
> (or available publicly) before the patent cannot be patented anymore, so that 
> would
> include all openmoko software up to today, the CAD design for the casing, 
> ideas on the
> wiki etc.

I normally don't like to add too much noise here, but I really
strongly must echo this sentiment. Why is a free software company
patenting anything? Isn't everything in Openmoko supposed to be
already open? Is there really any judge in the world who would believe
that anything you've done constitutes enough new work to be
patentable? Forgive my ignorance if that's what it is, but I was under
the impression that the sole purpose of OpenMoko was to build an open
phone, not to invent anything new (and in fact, to rely on old and
well known components for stability).

-Nick

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Re: Patents and OpenMoko

[Sander van Grieken]

> I think that we all agree here that the patent system is completely broken.
>
> By filling patent, even for defense only, you are playing the rule.
>
> What I've seen so far is that small companies that cannot afford a lawyer
> department simply choose to ignore the rules and just ignore completely the
> patent system. In the essence of the law, as long as you don't obviously
> *stole* an idea, you 've nothing to fear. But the system has becomed crazy
> when you can infringe a patent without even knowing it. That's completly
> wrong with the moral behing patent itself !
>
> Have you already tried to fill a patent ? Have you tried to make a study on
> prior art ?
>
> I did for a few weeks and I didn't succeed. All is patented ! All,
> completely ! Patents are as general as possible and cover everything you
> could believe. It's nearly patents for "things" that do "stuffs".
>
> So whatever you do, you could be sued.
>
> I don't know the ressources of OpenMoko but patenting, writing and
> submitting is a full-time job ! It would be shame (IMHO) to waste ressources
> in this way. More : you have to fill the patents in different countries !!!
>
>
> As OpenMoko does Free software, doing this, even for defensive purpose, will
> have a terrible PR impact in the Free Softwware community. You have the
> opportunity to just move, to ignore those silly things and to build
> something new.
>
> On the other hand, if you are under a patent attack without any patents, I
> think that the Free Software Fundation gives legal help in that kind of
> case.
>
> I really hope that OpenMoko will not be covered by any patents. (but I'm
> sure that there's a patent for a device allowing wireless communication
> somewhere)

I totally agree with Lionel here. It will be bad PR wise and it's very 
difficult to
enforce. Openmoko hardware and software are already covered by copyright, and I 
think a
patent doesn't add any protection. Even if parts will be covered by a patent, 
chances
are that some smart company can circumvent it by making small 
changes/improvements.

Besides, what's there to patent? If I understand correctly, anything that's 
published
(or available publicly) before the patent cannot be patented anymore, so that 
would
include all openmoko software up to today, the CAD design for the casing, ideas 
on the
wiki etc.

grtz,
Sander



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Re: Patents and OpenMoko

[Jonathan Spooner]

So you want to patent any unique tech in the neo to prevent some scum 
from patenting your ideas then taking openmoko to court?


Then just do it!  Its in everyones interest not to see openmoko taken 
down so I'd imagine anyone here with an ounce of sense would not have a 
bad word to say about that.


Its really that simple, is it not?

JonS


Sean Moss-Pultz wrote:

Dear Community,

Most of you know that OpenMoko is a fully independent company at this 
point. With this great opportunity comes many challenges. Today I 
would like to share one with you all and ask for some advice.


We need to file patents for our hardware as well as software designs. 
While my personal views on software patents are inline with people 
like Eben Moglen, as a company, we are forced to play by the rules of 
the game.


What I want is for a our company's patents to be freely available, for 
anyone, but for defensive purposes only.


Are there any existing options available to us now? Does anyone know 
of existing companies or organizations with a similar strategy that we 
can seek guidance or partnership.


Again, I want to emphasize that we only want our patents to be used in 
defense. And what constitutes defense is something that we want to be 
able to define (and potentially even redefine when new threats arise).


Thanks in advance for the help.

Sean







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--
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Nationwilcox Systems Ltd
Tel: 0121 3544345


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Re: Patents and OpenMoko

[Shachar Shemesh]

Sean Moss-Pultz wrote:

What I want is for a our company's patents to be freely available, for 
anyone, but for defensive purposes only.


Aside from patent-commons, which is just a way to allow mutual defense 
for fellow FOSS projects (assuming I understood this correctly), what I 
know of is to give irrevocable, transferable non-exclusive license to 
anyone to use your patents for any software released under the GPL. Such 
a license is GPLv3 compatible, is proof against acquisition, but does 
not diminish the defensive aspect of the patent.


Bear in mind - I am not a lawyer.

Shachar


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Re: Patents and OpenMoko

[Shawn Rutledge]

On Feb 7, 2008 4:45 PM, Arthur Britto <[EMAIL PROTECTED]> wrote:
> What prevents you from mailing yourself an unsealed envelope?

Why would you want to do that?  The point is to get a reliable date
stamp associated with the material inside the envelope.  And as the
other link pointed out, it doesn't hold up well in court, and could
also be used against you to say that this idea was not being
implemented... was just sitting on a shelf until you got around to
filing the patent or defending against one.

I think the notary method would be better because the stamp is right
on the invention diagram/description; and not being sealed, they can't
say it was necessarily sitting on a shelf.  Some companies take "lab
notebooks" seriously for the same reason - if you have a practice of
dating and signing every page, and the book is a hardcover bound one,
and it stands up to reasonable scrutiny that the notebook could not
have been constructed and bound later on, then maybe some courts would
be convinced that the idea struck you on that date... because it fits
into the timeline of the other writings in that book, some of which
could probably be corroborated via other sources.  (Since I don't like
the process of writing on paper though, that's one habit I haven't
taken up very much.)

More about the notary method here

http://robertplattbell.blogspot.com/2007/10/poor-mans-patent.html

and here

http://books.google.com/books?id=7G5A2pyvCQUC&pg=PA137&lpg=PA137&dq=notary+establish+date+of+invention&source=web&ots=dEnJJyMR-m&sig=piJSbDkPsCkKJOmMd_XtzcwISmQ

but I'm not proposing it's anywhere near as good protection as an
actual patent... just for a "prior art" defense.

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Re: Patents and OpenMoko

[Arthur Britto]

On Thu, 2008-02-07 at 17:35 -0500, Steven Milburn wrote:
> As a first step, get anything you think is patent worthy documented
> and dated.  In the US, a common practice is to write up your concept
> and mail it to yourself in a sealed envelope.  You don't open the
> envelope until you need to and you do it with a lawyer present.  The
> postmark on the envelope holds up very strongly to prove the date of
> the material.

What prevents you from mailing yourself an unsealed envelope?

-Arthur



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Re: Patents and OpenMoko

[Steven Milburn]

Wow, good to know!  Thanks!

I have thought for a long time that doing this would be a defense because it
would show dated prior art, but the details on that site actually seem more
sensible.

--Steve

On Feb 7, 2008 6:31 PM, Christopher Earl <[EMAIL PROTECTED]> wrote:

> Forgot to add this link. This will outline the American procedure for
> patenting.
> http://www.inventionpatent.net/patent/process.cfm
>
> >>> "Steven Milburn" <[EMAIL PROTECTED]> 02/07/08 5:35 PM >>>
> As a first step, get anything you think is patent worthy documented and
> dated.  In the US, a common practice is to write up your concept and mail
> it
> to yourself in a sealed envelope.  You don't open the envelope until you
> need to and you do it with a lawyer present.  The postmark on the envelope
> holds up very strongly to prove the date of the material.
>
> --Steve
>
>
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Re: Patents and OpenMoko

[Christopher Earl]

This method is called "The poor man's patent" and is not legal.  Below is a web 
page that may be of some help and describes this patent method as an "Urban 
legend" It also has documentation on getting things patented.

http://www.inventionpatent.net/patent/poor-man's-patent.cfm


>>> "Steven Milburn" <[EMAIL PROTECTED]> 02/07/08 5:35 PM >>>
As a first step, get anything you think is patent worthy documented and
dated.  In the US, a common practice is to write up your concept and mail it
to yourself in a sealed envelope.  You don't open the envelope until you
need to and you do it with a lawyer present.  The postmark on the envelope
holds up very strongly to prove the date of the material.

--Steve


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Re: Patents and OpenMoko

[Christopher Earl]

Forgot to add this link. This will outline the American procedure for patenting.
http://www.inventionpatent.net/patent/process.cfm
  
>>> "Steven Milburn" <[EMAIL PROTECTED]> 02/07/08 5:35 PM >>>
As a first step, get anything you think is patent worthy documented and
dated.  In the US, a common practice is to write up your concept and mail it
to yourself in a sealed envelope.  You don't open the envelope until you
need to and you do it with a lawyer present.  The postmark on the envelope
holds up very strongly to prove the date of the material.

--Steve


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Re: Patents and OpenMoko

[Shawn Rutledge]

On Feb 7, 2008 3:35 PM, Steven Milburn <[EMAIL PROTECTED]> wrote:
> As a first step, get anything you think is patent worthy documented and
> dated.  In the US, a common practice is to write up your concept and mail it
> to yourself in a sealed envelope.  You don't open the envelope until you

Or get the document itself notarized.

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Re: Patents and OpenMoko

[Steven Milburn]

As a first step, get anything you think is patent worthy documented and
dated.  In the US, a common practice is to write up your concept and mail it
to yourself in a sealed envelope.  You don't open the envelope until you
need to and you do it with a lawyer present.  The postmark on the envelope
holds up very strongly to prove the date of the material.

--Steve
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Re: Patents and OpenMoko

[Esra Kummer]

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?  


Well I am not too sure about that...

I would guess and prefer that the patent is used to ensure that no one else patents this and sues fic/openmoko. Otherwise it would not be a really free thing.. Am I right? 


So what is this defence tactic now Sean? Or do you have to figure out that as 
well? Hope you find a solution which is good in the FOSS sense like you often 
do! Just to say it ones more: you do a great job at FIC/OM!

--
Mit freundlichen Grüssen / Best Regards

Esra Kummer

Address: Schaffhauserstrasse 133, 8400 Winterthur, Switzerland
Fon: 0041 78 756 69 74
2nd Mail: [EMAIL PROTECTED]
Skype: tuxfux.ch, MSN: [EMAIL PROTECTED], ICQ: 262647196
Fotos: www.flickr.com/photos/tuxfuxch
Orkut: Esra Kummer


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Re: Patents and OpenMoko

[Lionel Dricot]

I think that we all agree here that the patent system is completely broken.

By filling patent, even for defense only, you are playing the rule.

What I've seen so far is that small companies that cannot afford a lawyer
department simply choose to ignore the rules and just ignore completely the
patent system. In the essence of the law, as long as you don't obviously
*stole* an idea, you 've nothing to fear. But the system has becomed crazy
when you can infringe a patent without even knowing it. That's completly
wrong with the moral behing patent itself !

Have you already tried to fill a patent ? Have you tried to make a study on
prior art ?

I did for a few weeks and I didn't succeed. All is patented ! All,
completely ! Patents are as general as possible and cover everything you
could believe. It's nearly patents for "things" that do "stuffs".

So whatever you do, you could be sued.

I don't know the ressources of OpenMoko but patenting, writing and
submitting is a full-time job ! It would be shame (IMHO) to waste ressources
in this way. More : you have to fill the patents in different countries !!!


As OpenMoko does Free software, doing this, even for defensive purpose, will
have a terrible PR impact in the Free Softwware community. You have the
opportunity to just move, to ignore those silly things and to build
something new.

On the other hand, if you are under a patent attack without any patents, I
think that the Free Software Fundation gives legal help in that kind of
case.

I really hope that OpenMoko will not be covered by any patents. (but I'm
sure that there's a patent for a device allowing wireless communication
somewhere)

On Feb 7, 2008 9:43 PM, David Schlesinger <
[EMAIL PROTECTED]> wrote:

> > http://www.patent-commons.org/ is the one that I'm aware of ...
>
> This is what I was referring to...
>
>
>
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RE: Patents and OpenMoko

[David Schlesinger]

> http://www.patent-commons.org/ is the one that I'm aware of ...

This is what I was referring to...



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Re: Patents and OpenMoko

[Rod Whitby]

Sean Moss-Pultz wrote:
> What I want is for a our company's patents to be freely available, for
> anyone, but for defensive purposes only.
> 
> Are there any existing options available to us now? Does anyone know of
> existing companies or organizations with a similar strategy that we can
> seek guidance or partnership.

http://www.patent-commons.org/ is the one that I'm aware of ...

-- Rod

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Re: Patents and OpenMoko

[Shawn Rutledge]

On Feb 7, 2008 1:00 PM, Sean Moss-Pultz <[EMAIL PROTECTED]> 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?

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Re: Patents and OpenMoko

[Andres Paglayan]

what about posting this exact question at groklaw?


On Feb 7, 2008, at 1:00 PM, Sean Moss-Pultz wrote:


Dear Community,

Most of you know that OpenMoko is a fully independent company at  
this point. With this great opportunity comes many challenges.  
Today I would like to share one with you all and ask for some advice.


We need to file patents for our hardware as well as software  
designs. While my personal views on software patents are inline  
with people like Eben Moglen, as a company, we are forced to play  
by the rules of the game.


What I want is for a our company's patents to be freely available,  
for anyone, but for defensive purposes only.


Are there any existing options available to us now? Does anyone  
know of existing companies or organizations with a similar strategy  
that we can seek guidance or partnership.


Again, I want to emphasize that we only want our patents to be used  
in defense. And what constitutes defense is something that we want  
to be able to define (and potentially even redefine when new  
threats arise).


Thanks in advance for the help.

Sean







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RE: Patents and OpenMoko

[David Schlesinger]

I'd get in touch with the Linux Foundation/Software Freedom Law Center
and discuss their "patent commons" with them. Write me off-list, Sean,
and I can get you in touch with the right folks, I think...

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Sean
Moss-Pultz
Sent: Thursday, February 07, 2008 12:00 PM
To: List for OpenMoko community discussion
Subject: Patents and OpenMoko

Dear Community,

Most of you know that OpenMoko is a fully independent company at this 
point. With this great opportunity comes many challenges. Today I would 
like to share one with you all and ask for some advice.

We need to file patents for our hardware as well as software designs. 
While my personal views on software patents are inline with people like 
Eben Moglen, as a company, we are forced to play by the rules of the
game.

What I want is for a our company's patents to be freely available, for 
anyone, but for defensive purposes only.

Are there any existing options available to us now? Does anyone know of 
existing companies or organizations with a similar strategy that we can 
seek guidance or partnership.

Again, I want to emphasize that we only want our patents to be used in 
defense. And what constitutes defense is something that we want to be 
able to define (and potentially even redefine when new threats arise).

Thanks in advance for the help.

Sean







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