OSI submitted its comments to the United States Patent and Trademark Office to defend Open Source from patent trolls. A few days ago the Linux Foundation, Electronic Frontier Foundation and Unified Patents asked for the community to send their comments.
Below is the text of the letter we sent.
June 16, 2023
Katherine K. Vidal
Under Secretary of Commerce for Intellectual Property
and Director of the United States Patent and Trademark Office
United States Patent and Trademark Office
600 Dulany Street
Alexandria, VA 22314-5796
Dear Director Vidal,
The Open Source Initiative (OSI) is a California 501(c)(3) public charity advocating for and enabling the benefits of open source (community developed and maintained) software in the interests of every citizen. It does not advocate on behalf of any for-profit entity or any political group.
We very much appreciate that the USPTO has provided the opportunity for input on this important matter in advance of the formal rulemaking process. OSI is writing in particular to provide information for your consideration regarding the use of third-party entities to challenge patents.
The oversight of each open source project is usually in the hands of an unincorporated association of individual contributors, or a dedicated public charity (like OSI’s 80+ Affiliate members). Many of the leaders in these communities are entrepreneurs leading small businesses. Open source projects use OSI-approved licenses, which openly convey all rights necessary to use, improve, share and otherwise enjoy the software without any necessary relationship with its rights holders. As such, no open source project depends on patents and communities rarely tolerate royalty-due elements, preferring to design without any encumbered parts.
Open source projects and their maintainers are uniquely vulnerable to attack by hostile parties such as patent trolls (sometimes called “non-practicing entities”) and companies rent-seeking over so-called standard-essential patents. The projects and their non-profit fiduciary hosts are not of a scale to be able to manage the usual defenses of large corporations, while the individuals themselves may seem worthwhile targets for avaricious litigators. When a project faces a patent attack, it is thus frequently defended by others as a matter of civic duty.
The rule changes that the Patent and Trademark Office propose would greatly limit the ability of open source projects to be defended by these third parties. This would both chill the innovation and progress arising from open source software – which contributes billions to GDP – as well as embolden malicious litigators seeking reward where they have no claim simply because their victim is unable to defend themselves.
OSI consequently encourages the USPTO to reconsider these rule changes and avoid the harm they would cause open source software.
Open Source Initiative
Open Source Initiative is a 501(c)(3) corporation (EIN: 91-2037395).