Subject: brainstorming
From: Benjamin Rossen <b.rossen@onsnet.nu>
Date: Fri, 14 Jan 2005 14:51:21 +0100

The Open Source License is a form of contract with the user of the software. 
If this is so, then it should be possible to formulate that contract to cover 
more than just the copyright aspects of the license; it could be framed in 
such a way that it covers any patentable ideas that are included in the 
software; whether they have been patented or not.
 
If the patent has not been lodged, but is given away, then it ceases to be 
patentable. However, does that mean it ceases to be an innovation tied to the 
contract of the license? If not, then the Open Source License could be made 
into a very powerful instrument; it could be made to cover any innovation 
which is new (whether explicitly stated to be new in the documentation, or 
not - that would cover innovations that we might later show were not 
previously known of used by anyone else up to that time) to fall under the 
license. 

Could this be framed in such a way that these innovations may not be used in 
any license other than Open Source? What formulations are possible? For 
example, could we do something to give us protection like the umbrella 
protection that IBM has given to the Open Source Community, namely; frame the 
Open Source License to say that any entity making use of any innovations that 
have their origin in the Open Source Licensed software at hand, which they 
may use in their proprietary software, simultaneously forego the option of 
pursuing their own patent rights with respect to any patentable claims used 
by the Open Source Software. 

Can this be done? 

How useful shall this be? I suppose it shall not very useful in the beginning; 
obviously it shall not be possible to make an agreement of this kind 
retrospective. But, as the Open Source Community builds up a track record of 
innovations covered by such an extended license, and as more and more 
proprietary software providers make use of Open Source innovations in their 
own products, the protection shall grow. In the end the coverage shall be so 
widespread, and uncertain in any give instance (proprietary software houses 
shall no longer know what tricks and methods they have used that are actually 
traceable back to some Open Source project), that an attempt to make claims 
against the Open Source Community shall not be a feesable proposition. 

I am interested in your comments. 

Benjamin Rossen 
www.amiculus.com