FOSS Projects Working Together to Invalidate Patents

As many of you may know, there are a number of initiatives around regarding prior art that all tackle the problem of software patents from different angles.  Whether its Open Invention Network’s  Linux Defenders, post issue P2P, or our own infant Prior Art Share project, each relies upon an underlying principle of cooperation.  The fact is that the ultimate defense – the way to eliminate a patent – is via prior art. It’s no doubt harder, but permanent, like sunlight to vampires.

Non-infringement arguments work, but only for the specific implementation. Ofcourse when you’re the defendant, you’ll gladly take either, but the real challenge is finding good prior art and developing it into admissible evidence within the time constraints of an actual patent case with a tight trial schedule. It can both invalidate the claims and/or narrow infringement arguments. Even if you can’t invalidate, prior art can establish safe zones — you can’t infringe by practicing what was “known” prior to the invention.

Notwithstanding the various projects, imagine a world where an attack on one is an attack on all, and developers across multiple FOSS communities responded to a call to action, in a coordinated and organized fashion, to find relevant non-patented prior art in response to the assertion of a patent against a FOSS project. Something like a NATO pact, but workable and without all the politics. The global hunt for prior art would happen not after the 3rd or “N” settlement, but in the first instance. In such a setting, a potential plaintiff would have to carefully evaluate the risk of asserting its patent because if found invalid, the asset would be worthless, and the licensing/royalty game would be over.  We did this once before years ago in the Wang v. Netscape patent case, and it worked. In response, developers provided a massive amount of prior art we would have never found on our own.

This theory is again in action, see Red Hat’s blog on the subject. If you want to contribute your knowledge on prior art related to the Tom Tom case (programs, documents, publications, prior to the date of the patent, that disclose the elements of the claims) they’re collecting prior art references here. Obviously, there are other long term techniques like defensive publications, advance tagging of software programs so prior art is found more easily, eliminating software patents via legislation, but in the short term, cooperation may be the most effective technique.  For those interested, the network is already in place, and if you’d like to get involved let me know.