On Mon, Jul 23, 2018 at 10:13:48AM -0400, Chapman Flack wrote:
> On 07/23/2018 10:01 AM, Bruce Momjian wrote:
>
> > And the larger question is whether a patent free for use by software
> > under any license can be used in a defensive way. If not, it means we
> > have no way forward here.
>
> Isn't 'defensive', in patent-speak, used to mean 'establishing prior
> art usable to challenge future patent claims by others on the same
> technique'?
Not prior art. You don't need patents to establish prior art. Just
publish your idea and you're done. (The problem with just publishing an
idea is that someone might have a patent application regarding a similar
idea and might modify their application to cover yours once they see it.
Later, when you go claim that you have prior art, there will be a heavy
burden of presumption on you. This, of course, encourages you to apply
for a patent...)
Patents let you have counter-suit options should you get sued for patent
infringement -- that's the "defensive" in defensive patents. You need a
large portfolio of patents, and this doesn't work against patent trolls.
There's also no-lawsuit covenants in grants. You get to use my patent
if you don't sue me for using yours, and if you sue me then my grants to
you are revoked.
Nico
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