Software Patents

The immediate urgency of the software patent issue has gone away, although as explained by Panos Alevropoulos, Battles were won, but the war is not over. Patents still exist and are a threat, even when there is nice-sounding language and seemingly generous grants of IP rights involved.

If you are a rights holder or developer of non-physical IP, the protective actions available to you vary depending on your circumstances, but include:

• join and/or contribute to patent pools especially the Open Invention Network. If you run an open source project you should be at least speaking with a patent pool. Hopefully a patent pool will allow you to completely avoid the difficult and time-consuming steps listed on this page.
• approach one of the several organisations who exist to provide pro bono advice to open source software developers
• scrutinise licenses from the point of view of patents. This is what I have had to do repeatedly (despite also following the previous two points.)

As an example, even in 2023, if a software developer wants to implement an existing Microsoft protocol of any sort and they are are unsure if they are covered by a patent pool, then they should follow my Microsoft patent examination process. There are similar claim processes for other companies and alleged patent claims. Here is an excerpt from my process, after navigating whether your code is covered by a safe exemption:

From one of the previous steps you have a list of patents that appear to be relevant to your work implementing protocols. Microsoft has patents which it claims covers protocols you think are the same or similar to protocols you have implement. Your list consists only of patents that Microsoft are claiming read on that protocol, and which Microsoft say they will enforce, noting the various complicated exceptions given in steps 1 and 2. You have considered territorial implications, and from this point on you are in a standard patent evaluation scenario.

Get a software patent lawyer:

❌ A developer is not a software patent lawyer.

❌ A commercial lawyer is not a software patent lawyer.

❌ A patent lawyer is not a software patent lawyer.

Your task is to compare three things with each other:

• technical descriptions in the patent, with
• the technical description in your code, with
• the technical description in the Microsoft protocol specification

Any of these might express the same concept in very different ways, or may just seem to.

Good luck.

Patents and the MIT license

Some of my software projects use MIT so I have studied this issue. My notes are mostly kept as contributions to the Wikipedia page on the MIT License since that is where the decades-old knowledge of the MIT license origins is already maintained. The legal minds in many of the largest companies in the world seem to accept that least in the US the MIT license implies a patent grant. As probably the most-used open source license, the MIT license has many wealthy corporate defenders if anyone wanted to test that idea.