One Patent Per Developer (OPPD)

Last weekend Fortune Magazine published an article in which Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez claimed that Free and Open Source Software infringes on no fewer than 235 Microsoft patents.  The resulting blogostorm (including my own contribution) generated a lot of sound and fury, but did it really accomplish anything?

I know that it’s an obscure reference, but I’m reminded of a favorite quote from a tongue-in-cheek game I used to play in high school and college called Junta.  Junta involves taking control of a small dictatorship by battling for such important strategic spots as the bank, television station, etc. One of the event cards in the game reads, "Students Protest: No Effect". How do we turn the uproar around Microsoft’s recent patent assertions into something useful, and make sure the result is not just "no effect?"

Microsoft did take some notice of the uproar.  Bill Hilf, general manager of platform strategy and director of Microsoft's work with Open Source projects, answered some of the criticism and clarified that Microsoft’s strategy is "to license, not litigate."  But as Matt Asay blogged, that’s not entirely a comforting clarification, and the Open Source community needs to respond.

And respond we can.  Now I know that many people have issues with the current patent system, particularly as it pertains to software.  We need to continue efforts to reform the system.  But until the system is changed we need to work with the existing patent system.  Open Source developers have now for decades been contributing code to the community.  But as we are learning contributions of code are not enough.  We must fight fire with fire. We must build an Open Source patent portfolio to rival commercial portfolios.  We have a start at that already in the Open Invention Network (OIN) and the Patent Commons. Last week OIN CEO Jerry Rosenthal said that OIN stands "ready to leverage our IP portfolio to maintain the open patent environment OIN has helped create." OIN to date has accumulated more than 100 patents.  We can do a lot better than that.

Scott Collison, CEO of Ohloh, tells me that Ohloh tracks 39,664 contributors to Open Source projects.  The vast majority have contributed over the last year or two. If every Open Source developer contributed just one patent to OIN we’d have a patent portfolio that would rival most any in the industry. Famous patent troll Intellectual Ventures only owns somewhere in the range of 1,000 to 5,000 patents.  One Patent Per Developer (OPPD) - that's all we need.

Let us then take Microsoft's patent claims as a call to action for the Open Source community: One Patent Per Developer.  It's a lofty goal, and not one that will be achived easily.  But one that we can achieve.  With every contribution of code we each must be thinking, "one patent".  That's all it takes to help keep this code free - one patent.

Comments

[Don Marti]

Larry, this could be a good idea for an unconference. Bring your code, learn how to turn it into patent claims, and at the end of the weekend everyone puts a patent application in the mailbox.

[Jose C. Lacal]

This may be obvious, but there is a minor issue here: it costs significant US$ to file a patent in the first place:
* drafting the patent document itself (using the proper USPTO {US Patent and Trademark Office) lingo, to make sure "claims" are both broad enough as well as acceptable to the patent examiner)
* filing fees
* annual maintenance fees (some large companies are letting some of their _issued_ patents expire because the company does not want to continue paying such maintenance fees)

To take Larry's idea further, let's expand this OPPD concept as follows:
* set-up a Wikipedia-like forum for contributors to "review" the claims of each proposed patent (turn the "all bugs are shallow with many eyes looking at the code" on its head: all claims get wider with more people putting comments in). => I know, this opens a Pandora's box: if I review your original idea, and I add my comments, shouls I be listed as a co-inventor? Possibly.
* develop some sort of automated patent-creation software that turns developer language ("press this button to get X to happen") into USPTO-slang ("said invention consisting of such whatyoumakecallit that causes a gizmo to perform an action defined as..")
* the biggest challenge I see: how to secure the funding needed to cover the filing fees?

Plus, I am sure that a few law departments at universities might be willing to lend some of their law students to act as "patent filing shepherds" in this process: everybody wins. The developer gets a patent in (adds to resume's polish!); the F/OSS gets another stone to throw back at the big guys; and the law student gets exposed to the nitty gritty of both IP and USPTO law while at school.

Nothing unsurmountable, just more food for thought. Regards.