Subject: Re: brainstorming
From: Benjamin Rossen <>
Date: Mon, 17 Jan 2005 13:56:54 +0100


Yes, you are correct. No one else can claim it as their invention. And no one 
else can get a patent on it (or if the patent is granted, it could be 
successfully challenged). However, you also cannot claim a patent on that 
invention. You only have your license. 

So, this brings be back to the original question. What do we need to do to the 
license to give it the kind of legal force that a patent has? Can we frame 
our licenses in such a way that they become a counter weight to the patents 
that the Closed Source Proprietary Sorfware Community has? 

Benjamin Rossen 

On Monday 17 January 2005 13:38, wrote:
> Ben,
> Just to clarify your goals, because I find one point confusing:
> You said:
> >If the patent has not been lodged, but is given away, then it ceases to
> be patentable.
> And:
> >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. 
> ie: you state (correctly, as far as I know) that any innovation released
> under an OS license before being patented is not patentable. The OS project
> becomes prior art for the innovation, preventing subsequent inventors from
> claiming it as their own.
> You then ask if it is possible to prevent someone from claiming a patent on
> innovations implemented in the OS project. Is the answer not a trivial
> 'yes'? If you release a project FOO containing innovation BAR and make no
> effort to patent BAR, then no-one else can claim BAR as their invention, no
> matter how they implement it.

The disadvantage of the Open Source Community is greater than that. Because 
most hackers do not recognize patentable innovations, they give them out in 
new releases before anyone can say "Hay, wait a minute (or a day or a week or 
a month, or what ever is needed)! Let us look at that new idea for patent 
potential before you post the new release." 

This just doesn't happen. Have you read Eric Raymond's description of the 
guidelines for successful Open Source projects? One rule for success is to 
make frequent rapid releases; you must send new things out even when they are 
in an immature buggy stage. I think we cannot build into our iterative open 
system the delays that would be needed to carry out a patent seeking phase. 
It would kill the Open Source method. 

So, we need something else. What can that be? Can that be a new kind of 
license? If so, how should that license be framed? 

Benjamin Rossen 

> >Benjamin Rossen 
> > 
> Brian O'Byrne.