Imagine that you owned a bakery and someone wrote you a letter asking for $100,000 because they said they owned a patent that your ovens violated. If you didn’t pay, they might say, you’ll be sued for significantly more and have your business shut down. What would you do?
Sound incredible? Well these kinds of lawsuits may be on the verge of exploding in the software industry.
How would it work? Well, imagine that someone filed for a patent on some area of XML parsing - or on some enhancement to web server software that later got incorporated into Apache. Or maybe they held a patent on some underlying technology incorporated in Linux.
These people could then ‘pull an SCO’, but potentially with a stronger case (some might say, with a *real* case when you consider what the SCO case is built on).
Worse, they could go after the open source developers themselves and potentially take their homes and savings (if they have any).
One of the best defenses against patent infringement is the establishment of what’s called “Prior Art”, or a demonstration that the patent the person holds is invalid because they tried to patent something that others had already done. In other words, Prior Art can render a patent invalid.
So how is Prior Art shown? Well, when you have a suit filed against you, you go out and try to determine what specifically the patent you’re being sued under is about, then you try to find examples where software was available prior to the the patent filing that already implemented the technology that the patent covers.
If you can show Prior Art, then you’re protected because the patent is the shown to be invalid.
Now, I’m not a lawyer and I may be misrepresenting some of the nuances of the process, but essentially that’s how I understand it. Establishment of Prior Art is a critical strategy when defending yourself against patent lawsuits.
So here’s my question: Why wait until the lawsuits strt flying for us (the open source community) to begin collecting Prior Art evidence? Why not begin now? Maybe more importantly, why haven’t we already begun?
For example, someone in the open source community likely can determine when the first ‘journaled file system’ woas deployed in an open source project. A lot of that information is available in the old cvs trees of existing or dead open source projects.
Then if anyone ever filed a patent lawsuit on a journalled file system patent, we’d already have the information we need to etablish Pior Art in that case (if it were available).
There would be a huge benefit to the community if this were done. For example:
- It would save open source projects potentially many thousands of dollars in doing this research on their own if they were sued for patent infringement.
- It would avoid lawsuits being filed if this information were made publically available and patent holders could see that Prior Art had been found that preceeded the patents they held. If they knew they would lose, they wouldn’t file suit.
- If would make it much easier for open source projects to ensure they weren’t violating patents. If there were place they could go to research what Prior Art exited in the specific area they were writing software for, then it would help them avoid infringing patents to begin with.
This kind of resource would go a long way toward helping the open source community minimize its patent lawsuit exposure.
And we need to get started. A lot of the ‘Pior Art’ may exist in the source trees of projects that are currently no longer in use. These old source trees — and the innovative algorithms they contain — may eventually be needed to establish Prior Art and protect an open source developer in the future. If they are lost or deleted, we may lose the Prior Art they can establish forever.
So, what would a ‘Prior Art Project’ contain? I believe it would contain an encyclopedia (wiki?) of algorithms sorted and retrievable in different ways. We need people who are familiar with old projects and old innovations to come forward and tell us of early and historical examples of particular algorithms for data communications, file management, I/O management, etc.
It might even be of use to identify all software patents in existence and build teams of people with the specific charge to invalidate them all by establishing specific Prior Art for each of them. At least then we’d know which of these patents were truly valid.
You see — the Patent Office doesn’t do a great job (putting it mildly here) of researching Prior Art in software patents. Their attitude is ‘let the courts sort it out’.
Letting the courts sort it out gives the upper hand to patent holders that have legal staffs and deep pockets. It puts the open source community at an extreme advantage because most of us can’t afford the million or so dollars it may cost to defend a patent lawsuit.
So why can’t we take things into our own hands? Why can’t we control our own destiny on this issue? If we as a community can find a way to organize this information in a usable way, then it may be our best defense once the lawsuits start flying.
The information is there — it’s just spread across the minds and old cvs trees of the developers who originally crafted these innovations. Why should we let corporations holding patents get credit for this work? Let’s find a way to organize the information for our own protection before some critical pieces of it are lost forever.