The patent system is challenging for software development, and this is especially true for open source software.
While some patent owners use their patents defensively, many others use them offensively to prevent others from developing innovative and competitive software. Both the costs of fighting a patent infringement lawsuit and the potential damages involved can be large, making even the threat of patent infringement enough to prevent new innovations. Open source projects are particularly vulnerable because they tend to be smaller entities without money to defend infringement suits, let alone create a defensive patent portfolio.
Unfortunately, the problem is only worsening:
The number of patents applications that cover software has grown exponentially over the past decade, and overburdened patent offices applying unclear and non-technical standards have granted many vague or overbroad software patents.
When considering the validity of a patent application, patent offices primarily look to their own databases for “prior art” (information used to invalidate a patent during the application process). For written publications beyond that, patent offices often rely on the applicant to identify and provide copies of prior art for them. This means patent examiners rarely ever see open source repositories, code, comments, presentations, or discussions and that much of the innovation created by open source software projects and work that exists in their repositories may go overlooked before a patent right is granted to someone else.
Once a patent is granted, courts generally presume it is valid, making it many times more expensive to fight. Because of this, patent busting projects become hard to scale, even if there is valid prior art in the open source software world or if the patent shouldn’t have been granted for other reasons.
In this way, patents directed at software create an atmosphere of fear, uncertainty, and doubt that threaten future open innovation and the next generation of independent open source software projects.
This is why we’ve created the Mozilla Open Software Patent Initiative.
Obtaining a patent generally means the patent owner has the right to stop others from innovating under the patent’s claims. We’ve flipped this idea on its head and created a way to use patents to expressly permit everyone to openly innovate.
Not only does this allow for more protection for open source software, it helps patent offices find prior art embodied in open source projects in order to prevent others from claiming it and excluding the rest of us from using it.
As part of the Initiative, we plan on selectively applying for patents to protect free and open source software development. As we obtain these patents, we will immediately license them out under a royalty-free license to all comers. Each entity that receives the license must also, in turn, allow open source software projects to freely innovate without fear from patents.
This means that effective immediately, for every patent Mozilla acquires, Mozilla will immediately offer everyone a royalty-free non-exclusive license to all of Mozilla’s patents under the Mozilla Open Software Patent License (MOSPL). The MOSPL grants you a license to make, use, or distribute any software that would be covered by one of our patents, so long as (i) you don’t offensively sue, threaten, or accuse anyone’s Software of infringing your patents (using your portfolio to defend yourself against a prior-filed patent lawsuit is OK) and (ii) you agree to grant (upon request) your own royalty-free license under any patents you own to all open-source software projects that agrees or has agreed to be bound by the MOSPL. Read all the terms of the full license.
How you can get involved
Getting involved is simple, and there are many ways to do it. Much like the power of open source, the power of an open source patent license comes from networks of people who believe in its mission. The more entities that license their software patents to include and encourage open innovation (rather than reserve all rights to exclude) the healthier the open source ecosystem gets. Whether you use the MOSPL or another inclusive license, you’re helping solve the patent problem for open innovators. As such, we’ve created an Open Software Patent License Guide to help highlight considerations if you are thinking about licensing options that encourage innovation, rather than discourage it.