Patent Infringement Litigation

Patent infringement claims usually appear unexpectedly. They are serious matters, expensive, and potentially very damaging . When faced with a claim of infringement, you should consult an attorney. Fighting patent infringement litigation on your own is foolish.

You can't prevent patent infringement lawsuits, but your licenses can help you defend against them. Some open source licenses have very strong patent defense provisions (e.g., GPL section 7, MPL sections 8.2 and 8.3, CPL section 7, OSL/AFL section 10). These defensive termination provisions act by increasing the cost of suing an open source licensor for patent infringement. If the licensed software has value to the patent owner, he or she may prefer to forgo a patent infringement lawsuit rather than lose the license to the software.

Defensive termination provisions help protect open source licensors from infringement lawsuits by their own licensees. But there is no possible license provision that can protect a licensor ”or anyone else ”from lawsuits by third parties who are not licensees .

A collective approach to patents can also be helpful to encourage open source and proprietary software development. That is why companies cooperate, within the limitations of the antitrust law, to develop industry standards that are unencumbered by patents. The important role of open standards for the success of open source is the topic of the next and final chapter of this book.