When You Have to Shoot – Shoot. Don’t Talk.
Updated: Apr 15, 2022
If you’ve spent any amount of time in the world of Free & Open Source Software (FOSS) – or the world of “free and open source” anything – you likely have encountered a degree of alarm or downright hostility to patents in general, and “software patents” in particular. For more than 20 years, patents have been characterized as creating a significant threat to the continued development of software in a free, open, and collaborative way. Much has been said about the threat of patent holders without significant businesses other than collecting patent royalties or litigation settlements – and there is a small cottage industry dedicated to creating graphical images to be associated with these entities.
Over the past 20 years, there have been a number of different mechanisms deployed to mitigate some of the patent risks against FOSS: better FOSS license drafting, “patent pledges,” recognition of rules of good community citizenship, and other smaller impediments. But there has always been a glaring hole that these mechanisms are not able to plug. As I have detailed to several different FOSS audiences, there are existing mechanisms to plug this hole – direct challenges to problematic patents themselves. I have talked about these mechanisms, how they work, and how to think strategically about using them.
With that background, one of the first real tests of an unmitigated patent threat against a FOSS project was the lawsuit filed in 2019 against the GNOME Foundation. I had hoped, given the early statements of both the GNOME Foundation (“Agreeing to [a license] would leave this patent live, and allow this to be used as a weapon against countless others”; “we will fight your suit, and we will have your patent invalidated”) and Unified Patents, that is exactly how the patent asserted against GNOME would be handled. Over $150,000.00 was raised (and continues to be raised!) from thousands of FOSS community members for this anticipated fight, and the pledges that were made that the asserted patent would be fought, and eventually invalidated. Alas, that was not to be – at least not by those entities. Instead, on behalf of our client Defease Patents LLC, this firm filed a reexamination proceeding in October 2020 in the U.S. Patent & Trademark Office specifically challenging the validity of the patent (“Rothschild ‘086”) asserted against GNOME (among others – over 20 patent lawsuits had been filed in various federal courts asserting the Rothschild ‘086 patent).
The administrative proceeding we filed against the Rothschild ‘086 patent has now reached its conclusion. Every claim of that patent has been cancelled; the image above is the official certificate, issued on behalf of the Commissioner of Patents, cancelling all claims. The Rothschild ‘086 patent is no more; it has ceased to be; it is an ex-patent. As was promised (by others), the patent is now no longer live, it may no longer may be used as a weapon against countless others, it has been invalidated. This is a patent that had been the subject of numerous lawsuits all over the United States; from now on, it now no longer will.
If patents are indeed a continuing threat to FOSS, then talking down patents isn’t going to be enough. “When You have to shoot – shoot. Don’t talk.”