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All content by Kyle E. Mitchell, who is not your attorney.

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Patents for Software Freedomgun-shy insurgents and the heavy weapons of IP law

This is the third in a series, Killjoy, in which I sketch unorthodox and unwelcome solutions to nagging open source problems.


Patents are a natural strategic fit for software freedom activism, especially in desperation.

Free software is an insurgency: a small core of motivated hackers rebelling against the technology industry and its supporting legal regime. Like any insurgency, free software relies on leverage: tactics that transform relatively small efforts by relatively small groups into outsize subversive or corrective effects. Patents afford enormous leverage. They are the heavy weapons of intellectual property law.

To date, software freedom has relied largely on the lesser leverage of copyright. Copyright gives individual developers power over the use of original software they write, backed by the ability to sue, secure court orders, and collect substantial money damages. Individual decisions to apply copyleft licenses to software, joined by others required to do the same, by their terms, create networks of computer code under rules that organizations like the Free Software Foundation and Software Freedom Law Center can enforce against even very large corporations.

If copyright is giving everyone in your insurgency a rifle, patent is building and stocking a missile silo. Copyright covers only specific implementations. Patent applies to inventions wherever and however they’re implemented and used. In technical terms, copyright is an identity check, and patent is more like a regular expression match. One patent covers all matching implementations.

Develop a new method, approach, or optimization, and patent it. Publicize the patent as broadly as you can, creating maximum opportunity to sue others for knowing infringement, which means more money damages. Then announce a public patent grant, loosely:

I hereby grant everyone a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer United States patent number {insert number here}, in software, so long as the complete source code of that software, in the preferred form for making changes, is made available through a freely accessible distribution system widely used for free and open source software, and licensed on the terms of the GNU Affero General Public License Version 3.0 or later.

(This is just an incomplete sketch. You’d want to say more than this.)

If you find out about a company using the patented invention in closed or proprietary software, hire a law firm on contingency to secure a court order to make them stop, and to earn as much in money damages as possible, to pay their own bill.

Compared to copyrights, patents are more difficult to acquire. Copyright applies to code as soon as it’s written, as long as it’s minimally creative, without any legal formality. To secure a patent, you have to keep your invention a secret, apply to the national patent office within a deadline, describe your invention in the prescribed format, and work your way through an administrative procedure designed to prevent you from patenting anything that’s obvious or already known. Infamously, this system is not exactly 100% accurate, allowing many patents that would fail this standard if patent examiners had the time and resources to research properly. The system moves slowly.

Hiring a professional patent attorney to prepare, file, and “prosecute” a patent application for you can cost significant money, on the order of a new car. But the United States Patent and Trademark Office also allows inventors to file on their own, without professional help, and provides some limited assistance for those doing so. Inventor-filed patents tend to be of lesser strategic rigor and legal quality than professionally drafted patents. But diligently inventor-prosecuted patents can nonetheless be lethal weapons.

In any event, as many companies have learned from dealing with “patent trolls”, the sky-high cost of defending a patent suit itself creates leverage. Many companies pay settlements to holders of even fairly dubious patents, to avoid the costs of arguing they’re invalid, and disclosing the possibility of disruptive injunctions and sky-high damages to investors. In that game, release as free software could likewise serve as a quick and relatively cheap out.

As a matter of philosophical proclivity, software freedom advocates recoil from legal mechanisms that exert power over software. In their perfect, free-software world, such weapons wouldn’t exist, and no one would live in fear of them. But power over software is precisely what software freedom activists need to influence the software business. Every weapon that industry utilizes to restrict software freedom has to be assessed for its potential to be turned back on the industry, and used as as weapon to promote software freedom, instead.

That is the story of copyright and the GPL. Why is there no such story in patent? Or in trademark, for that matter?

Your thoughts and feedback are always welcome by e-mail.

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