Open Source — the Last Patent Defense? 52
dp619 writes "A developer might fly under the patent troll radar until she makes it big, and then it's usually open season. Apple just shared that it has faced off 92 lawsuits over just 3 years. Even Google's ad business is at risk. FOSS attorney Heather Meeker has blogged at the Outercurve Foundation on what to consider and what to learn if you're ever sued for patent infringement. 'There have been at least two cases where defendants have successfully used open source license enforcement as a defensive tactic in a patent lawsuit. ... In both these cases, the patent plaintiff was using open source software of the defendant, and the patent defendant discovered a violation of the applicable open source license that it used to turn the tables on the plaintiff. In this way, open source license enforcement can be a substitute for a more traditional retaliatory patent claim.' Meeker also examines how provisions of open source licenses can deflate a patent troll's litigation and shift the balance in favor of the defense."
no troll defence here (Score:4, Informative)
In these cases, the patent holder sues an OSS developer and it turns out that the patented produce contained source from the defending code.
Defence then either says "ha, but the licence you accepted when you took our code contains a patent licence grant" (eg Apache licence) and therefore the defence is legitimately licenced to use the patent, or says "ha, you used our code illegally, cease and desist selling your product".
Trolls don't tend to actually have products, so this really doesn't apply here.
"Open Source" is not enough for patents (Score:5, Informative)
Few of the open source patents do not address patents. GPLv3, which is a genuinely "free as in speech" license, and the recent Apache icenses, do deal with patents.
The MIT license and most of the BSD licenses *do not* handle patents well. The FreeBSD license, funded now by Apple, now very specifically does *)not* grant patent protection, to protect Apple's patents from encroachment.
Re:"Open Source" is not enough for patents (Score:2, Informative)
Both Apache2 and GPL have a patent grant, and a patent retaliation clause in them.
2 and 3 clause BSD were created in a time before people thought software patents were a major thing to worry about. One can contribute patented code to a BSD project, wait for it to ship to users and sue everyone, all perfectly legal. Apache2 and GPL address this by requiring patent grants as part of the license.
Re:no troll defence here (Score:4, Informative)
Not true. Not true at all. The Apache 2.0 license doesn't prevent a user of Apache-licensed software from suing. It's a defensive patent clause: it deprives the contributor of patent enforcement rights as it relates to a contribution, but allows them to sue a user for patent infringement if they're sued first. If a troll sues a "Contributor" for patent infringement, then the Contributor can sue the troll. So, a troll could use Apache all day long and sue Contributors all day long without a license violation.
Similarly, GPLv3 has a patent license. It affects contributors and distributors, not "users."
Re:"Open Source" is not enough for patents (Score:4, Informative)
Both Apache2 and GPL have a patent grant, and a patent retaliation clause in them.
But neither really protects against the trolls; trolls work on the principle of shaking you down with the threat of very expensive court action, and there's the risk of having the court decide against you anyway. If the court decides that the troll's patent is valid and applies, the license doesn't get you out of trouble except in the case that it's the troll's own code or that a transferrable license has actually been granted to whoever donated the code and the troll was trying to brush that little fact under the carpet.
There aren't any magical short cuts round legal problems. Just areas that are known to be thorny.