Free, open source software is having a tremendous impact on research, development and even on consumers. The factors driving this, and the resulting advantages, have been discussed at length elsewhere, in essays such as "The Cathedral and the Bazaar". The problem I wish to discuss here is a related issue, one that poses a serious threat, perhaps a potentially devastating threat, to the free software moment: the threat of patent infringements.

The Problem

Good, modern software, open source or otherwise, has deep and broad intellectual roots in the computer science tradition. This is true of operating systems, word-processing applications, internet clients, and any other free tool you can download off the internet. These intellectual roots may tap into research that has been published in papers, or (far worse) it may tap into patents. Therein lies the rub. This issue has been discussed in the LINUX journal, but a brief example will suffice.

Consider a free, open source application Jiffywrite, that make critical use of an algorithm for text formatting. Suppose further that this algorithm has been independently patented by GreedyTech, Inc. If GreedyTech chooses to enforce its patent, it may demand royalties for every copy of Jiffywrite. Effectively, this will kill the Jiffywrite program. GreedyTech may have several reasons for doing this. It may just need the money. It may have a competing product, DrekWrite which it wants to sell for money as soon as Jiffywrite is out of the picture. There may be yet another company,Mongotech, larger and with greater resources, which simply wants to enter the same market as Jiffywrite; this company might  payGreedyTech  to enforce its patent against Jiffywrite.

In any case, this might well prove to be the end of Jiffywrite.

So, consider this... it is quite likely that just about every free, open source product infringes on a patent held by some corporation. Large U.S. Corporations such as IBM, AT&T, Lucent Technologies, HP, and Microsoft have enormous portfolios of software patents, covering a broad set of aspects, ranging from algorithms to user interfaces to databases to networking to operating systems. These massive, privately-owned collections of intellectual property (IP) cover many fundamental computer-science notions that underly free software widely in use today. If large, IP-rich companies ever perceive free software as a threat, they could well torpedo the entire program by enforcing their intellectual property rights.  This could also happen selectively---they may only choose go after those free software products which most threaten their revenue stream.

A Modest Proposal

What's the solution? The free software movement (GNU, the Linux foundation etc) needs to build their own intellectual property portfolio! How can this be done? I suggest the creation of a new type of patent, which is publicly owned (i.e, the holding  body pledges to never charge licensing fees to "non-combatants" (see below)) and held in trust on behalf of the public by reputable, free software institutions such as the Linux foundation or the Free Software Foundation. These patents will cover a broad range of computer science inventions, and,  in time, will have the depth and breadth of the patent portfolios of large, reputable firms like IBM, AT&T, Lucent, HP, Microsoft etc.

How will the patents be used? In most cases, the invention will be made available royalty-free for use in any software whatsoever (free or otherwise). However, they also constitute a form of "defense" for open software.Consider this scenario. Suppose  the owner O of some patent attempts to enforce their patent over some free software somewhere. At this time, O is identified publicly as a free software "combatant" and his/her products will be carefully analyzed by teams of free software volunteers to determine whether O is infringing on any patents held by the free software foundation. If infringements are found, O will be contacted, and politely informed that he is in infringement of a free software patent, and will be invited to negotiate. In many cases, this "leverage" will be enough to compel O to back off. In fact, this defensive use of patents is precisely the way most large companies use their patent portfolios...it's called "cross-licensing".

Where will these inventions come from ? These patents will be donated by individuals to be held in the public trust by FSF, the Linux foundation, etc.

Why would anyone donate inventions?  Same reason why people contribute effort to free software and create such stellar products as Linux and Apache. People have an innate nature that drives them to serve and contribute to the public. Such apparently unselfish acts also have the nice effect of bringing the contributor recognition, fame, consulting jobs, speaking engagements, etc.

How can a patent bring Fame?  I think, for example, a "GNU Free Public Patent" could become an item of prestige for an inventor. A council within GNU FSF or Linux could review submitted inventions for quality, and only select the best among them for patenting. This process would ensure that such patents have a "cachet" that would be coveted by academics and other inventors striving to build a reputation for professional excellence. As a computer science academic, I tend to think that such patents will soon become coveted badges of honor.

Why does the FSF (GNU, LINUX) need to get involved?  Why can't individuals hold the patents, and donate them? This is a pragmatic issue, based on human nature. Suppose I invent an amazing new efficient public-key crypto algorithm, way better (faster, more secure) than RSA, Diffie-Hellman etc. Suppose I patent it in my name, and announce that (while I still held the patent) I was giving it away for free. It might quickly become very broadly used. At this point, I might be tempted to "change my mind", get greedy, and start demanding royalties. To avoid this type of "human nature problem", it's far better to have the invention be held in the public trust by a reputable non-profit institution.

What IP vulnerabilities of FSF and open source free software exist in this model?   There is one knotty  threat scenario that I can think of. Suppose that GreedyTech (or some other company) were to secretly  create a dummy corporation,  BadIP, Inc., which had no function except to hold patents.  BadIP  would have no business function except act as the facade for GreedyTech; it would attempt to enforce IP rights on free software. The free software movement could not retaliate in the usual fashion by enforcing its IP rights, since BadIP has no real products. This is a difficult situation; it will probably take a lawyer to analyze the implications. I can, however, think of two possibilities. One option is for the Free software movement to arrange to defend the lawsuit in some venue such as the United States, which has liberal evidentiary rules, and use the subpoena system to try to determine who was behind BadIP. ONce these organizations are identified, then it would be possible use Free public patents to bring pressure to bear on these organizations. The Second option I can think of is an extremely coarse and blunt weapon--simply enforce all available Free public patents, demanding immediately that, for example, all infringing products immediately be made open source, and they all be given awayfree of cost. Most companies would not want this; the threat of this occurring would perhapsdiscourage GreedyTech and the like from taking this devious step.  But as I said this issue probably is more legally complex than I have dealt with here.

Does this idea apply in other domains? This is indeed a fascinating question, one I am not qualified to answer...but consider for a moment the bio-genetics revolution. Companies are fast patenting vast fragments of the human genome.  There is  much debate about whether these genome patents are in the public interest. Some government-funded projects are actually trying to stifle this trend by freely publishing fragments, thus placing them in the public domain and preventing others from patenting them. In addition to this purely defensive manouevre, it might be wise to procure offensive patents are held in the public trust by non-profit institutions and are made available license-free forcertain types of uses, but also could be used as a legal bulwark against monopolistic predation bythose who seek to gain a stranglehold on genetic information that is perhaps all humanity'sbirthright.
 

Conclusion

Outlined is a broad legal framework that can only be pursued by the free software organizations. I believe that groups such as GNU and Linux should pursue something along these lines. Whether they do is completely up to them; no new legislation is required, this scheme fits within current law. However, I believe that they ignore this issue at their peril. They actually already know that.

This article is wrtten by Prem Devanbu, Asst. Professor of Computer Science at University of California, Davis, who is solely responsible for its contents. I am only speaking for myself, not for any one else (e.g., my employer, research funders, pet turtle, etc.). You are welcome to re-distribute this article, but you must re-distribute all of it, including this paragraph.