Florian Mueller, a software developer and government affairs professional, deplores the lack of progress on actually reversing the laws that permit registration of software patents. In 2004, Florian founded the NoSoftwarePatents campaign, which contributed to the European Parliament’s rejection of a proposal for European software patent legislation.

Unfortunately, the push for the total abolition of software patents hasn’t made any headway at all in quite a while. Five years ago, the European Parliament threw out a proposal for an EU software patent law that would have exacerbated the situation. This was a major victory for the FOSS community to which I’m proud to have made my contribution with the NoSoftwarePatents campaign.

Since then, there hasn’t been any legislative process on substantive patent law (the rules for what can and cannot be patented) in any major market in the world, and the anti-software-patent movement simply hasn’t been able to launch any initiative of its own. A new worldwide campaign, EndSoftPatents.org was launched, and I wish Ciaran O’Riordan best of success with it, but I can’t see any tangible political progress.

On his blog, Florian covers a recent development: the drafting of a Defensive Patent License (DPL) which leans on the GPL license for free and open software. The first of two articles is titled

Will the Defensive Patent License be able to make patents ‘less evil’ for Free and Open Source Software?

In it, he goes into some detail on the (lack of) deterrent potential of such a license on those who would take others to court, either over legitimate commercial concerns or as trolls, meaning with the intention of profiting from a company’s oversight of covering every aspect of a product with a patent. The defensive license is a work in progress and will only become available in a matter of months rather than weeks. Although there is little immediate cause for celebration, Florian says:

“In light of the overall situation, I do believe that initiatives such as the Defensive Patent License (DPL) should be evaluated thoroughly and pragmatically. They won’t do away with software patents and they don’t claim to. Can they still be helpful in some ways? What are their strengths and weaknesses, possibilities and limitations? Let’s try to be constructive.”

A Defensive Patent License does not, by itself, handle the major problems of software patentability. However, in a second post, Florian Mueller fleshes out an idea he calls the ‘Fair Troll’ business model.

The DPL and the ‘Fair Troll’ business model: make money fighting patents with patents

He argues that a pool of patents all subject to the soon-to-come-out Defensive Patent License could act as a resource for ethical patent trolls, people who would seek to make money off the DPL patents, suing those commercial companies who remain outside of the pool. This would reverse the vector of attack, pointing it against the patent-holding mega companies, those that profit from software patents to keep any competition from getting too close to their own products. It would also perhaps act as an incentive to get them to join the defensive patents pool.

But no matter how defensive the DPL may be at first sight, it could pave the way for a whole new business model: that of the Fair Troll (which I’ll explain in this post). That approach might be able to provide what I considered to be the missing link. It could enable the DPL to attract a very broadbased following, providing many companies and persons throughout and beyond the FOSS community with economic incentives and the opportunity to contribute to a good cause at the same time.

What’s needed is at least one (ideally more than one) entity that will assert patents from the DPL pool very aggressively and systematically against entities who don’t support the DPL. By acceding to the DPL once they are attacked, the pressured parties could limit the problem to backroyalties (paying for past infringement of the patents in question) because once they make their own patents available under the DPL, they will have access to the patents in the pool. If they decide to stay outside even longer, they will bear the full brunt of the patent attack. If they lose, they will pay dearly. Some of that money will enrich those who successfully asserted those patents. Some of it will go back into the DPL ecosystem, making the problem for non-members of the pool bigger with time. Eventually more companies will then decide that it’s in their own best interest to join the DPL.

The key thing about a Fair Troll is that he would have to make that patent irrevocably available to all members of the DPL pool on DPL terms. So a Fair Troll would only attack companies outside the DPL pool. Those could again eliminate or at least greatly reduce the problem by joining the DPL when they get attacked. A Fair Troll would have to leave peaceful people alone but would have to pursue all others relentlessly. In fact, the better the Fair Troll does his job, the more he will contribute to the DPL cause and the more attractive it will be for community members to work with him.

There is much more discussion than I can copy here. The issues are a tad complicated, but that’s what happens when a wrong move (allowing software to be patented) has to be countered without being able to undo the original mistake.

Ethical patent trolls may – in the end – show that software patents are not really that hot. Once the large commercial companies that lobbied for and that keep supporting software patenting feel how it is at the receiving end of an increasing number of patent suits, perhaps some of them will join the defensive patents pool, having seen the damage that can be done by such patents. Perhaps that would be a first step towards abandoning the practice and repealing the laws that allow software to be patented.

The DPL and the discussion around is not limited to only software patents. Hardware patenting could be treated in the same way, and who knows – perhaps this model could put a large number of patents into a regime where knowhow becomes openly available in a secure way, feeding the development of open source software as well as hardware.

After all, commercial exclusivity is not the only possible business model.

What do you think?