Mutual Defense Against Software Patents

League for Programming Freedom
28 January 1994

Many companies believe that software patents in general are bad for them and the rest of the industry, but feel compelled to seek patents so as to press for cross-licenses when threatened by other companies with patents.

Software developers can protect themselves more effectively from patents by explicitly adopting a nonaggression or mutual defense policy. This means promising in a binding fashion to use their patents only to protect themselves and others from patents.

Let's define an "aggressive" software patent suit as a suit for patent infringement by software against a defendant who is not pursuing or profiting from any aggressive software patent suits. In other words, it is wrong to harm one who has done nothing to deserve it. (Note that we do not try to classify patents into software and non-software; but we do classify the lawsuits as software or not.)

Thus, suing a defendant that has no patents, or has never threatened to sue anyone, is certainly aggressive. Suing an aggressor is not aggressive. A developer that has sued only aggressors is not an aggressor, so suing that developer is aggressive. And so on.

A nonaggression policy means a policy of never pursuing or profiting from aggressive software patent suits. In order to give aggressors an incentive to reform, anyone who has in the past behaved aggressively should be forgiven on dropping any pending lawsuits and waiving royalties from those previously threatened.

By following this policy, developers will both state their disapproval of software patents and avoid threatening those who mean them no harm. Yet they can still obtain patents to use for defense against other patents.

More than that, this policy provides for mutual defense, because all the developers that practice it combine to place pressure on a potential aggressor. Any software developer that tries to use patents for attack will immediately become fair game for all.

Mutual defense could be made binding by means of an organization which is open to anyone at little or no cost. On joining, a new member would agree to cross-license all present and future patents (for software uses only) to the organization, and thus to all its members. This organization would strive to be universal, so it would be well publicized and easy to join. Once the organization becomes large enough, most software developers will find membership essential, which will assure continued success. Of course, the challenge is to get it going.

Most kinds of cross-licensing pools are prohibited by anti-trust laws. This organization, however, will probably be lawful because it will admit anyone as a member on the same terms, including those who have no patents of their own. A membership fee of $25 should suffice to run the organization. Perhaps a higher fee, such as $200, would be desirable to enable the organization to fund plausible software patent applications by its members, and thus increase the organization's strength. Any successful software developer can afford such fees.

How does this issue affect individual employees of companies? It could make a difference if the question arises of whether you should help apply for a software patent. Ordinarily, it is best for you to avoid participating in patent applications. But if the company adopts a nonaggression policy, then you can help them apply for patents with a clear conscience. But do insist on a contract in writing promising nonaggression, since otherwise they could alter the policy after you sign the patent application.

How does this affect companies? Using patents as a protection against other patents is a haphazard affair: any particular patent you might have has little chance of being relevant to the aggressor who threatens you. IBM states that even their 9000 patents are not enough to make a reliable defense (Think, number 5, 1990). An ordinary developer who tries to "go it alone" with a handful of patents for defense will not get far. Except for an IBM, mutual defense is the only defense.

Mutual defense is only a partial solution to the problem of software patents. Some patents are held by companies that have no business except to squeeze money out of developers; some developers may by luck have software patents that others need, while having no need themselves for the patents available for mutual defense. The only way to eliminate the harm that software patents do is to eliminate patents entirely from the field of software.

However, mutual defense and political activity can complement each other. While we organize to eliminate software patents, we can practice mutual defense as a temporary partial solution. Participation in mutual defense will raise public awareness of the software patent problem, which will stimulate support for a change in the law.