Patent non-aggression pacts

What this entry documents is not a solution.
This practice may be ineffective or useless in the long term.
ESP's position is that abolition of software patents is the only solution.

Entities with patent portfolios sometimes sign patent non-aggression pacts with each other, thus escaping some of the dangers of the patent system.

Sometimes these are formed by large software companies, thus avoiding the problems suffered by individuals and small- and medium-sized companies. This is one aspect of the inequality between small and large patent holders.

Sometimes they include smaller companies and/or free software projects. In this case they provide a very limited form of patent safety (such as Open Invention Network and the Defensive Patent License).

The signatories to these pacts could be described as a patent non-aggression club.

Known agreements between megacorporations

• HP and Microsoft signed one in 2002.
• Ericsson and Samsung have signed one for wireless communications in 2002.
• Microsoft and Autodesk signed one in 2004.
• Amazon and Microsoft
• Microsoft and Sun
• Nokia and Samsung: [1]

Tacit agreements

Whether a deal exists on paper or not, the patent system creates a situation like mutually assured destruction among superpowers. For example, even if there were no agreement between IBM and Microsoft, each one knows that with vast amounts of software (=risk) and thousands of software patents each (=weapons), the result of any litigation would be an explosion of retaliation and counter-litigation.

The following story from Sun's CEO, Jonathan Schwartz is a good example:

Steve called my office to let me know the graphical effects were “stepping all over Apple’s IP.” (IP = Intellectual Property = patents, trademarks and copyrights.) If we moved forward to commercialize it, “I’ll just sue you.”

My response was simple. “Steve, I was just watching your last presentation, and Keynote looks identical to Concurrence – do you own that IP?” Concurrence was a presentation product built by Lighthouse Design, a company I’d help to found and which Sun acquired in 1996. Lighthouse built applications for NeXTSTEP, the Unix based operating system whose core would become the foundation for all Mac products after Apple acquired NeXT in 1996. Steve had used Concurrence for years, and as Apple built their own presentation tool, it was obvious where they’d found inspiration. “And last I checked, MacOS is now built on Unix. I think Sun has a few OS patents, too.” Steve was silent.

Collective organisations

• Allied Security Trust
• PatentFreedom LLC -[2]

Specifics

Microsoft and Sun

Microsoft and Sun made a deal in April 2004: Limited Patent Covenant And Stand-Still Agreement

Elements of this deal include:

• Both parties give a covenant not to sue for any past damages (Section II.1)
• Agreement to abstain from litigation for six months, regarding all their software (Section III.1)
• [The deal] shall not apply to Authorized Licensees of Open Office [...] Microsoft shall not be foreclosed by this Agreement from seeking damages from Authorized Licensees of Open Office (Section IV.1)
• Star Office (unlike OpenOffice.org), is not excluded from the deal (Section IV.3)
• Microsoft will pay Sun $900 million (Section VIII) plus an annual fee. In 2005, the fee was $54 million, and the total for ten years is estimated at $450 million.

Related pages on ESP Wiki

• Novell-Microsoft patent deals
• Free software distributors paying patent tax
• Defensive patent acquisition
• Patent promises
• Defensive Patent License
• Open Invention Network

External links

• How IBM can force smaller companies to cross-license, by Richard Stallman