Patent Defenses for FOSS Developers


  • Richard Fontana
  • Bradley M. Kuhn
  • Eben Moglen
  • Matthew Norwood
  • Daniel B. Ravicher
  • Karen Sandler
  • James Vasile
  • Aaron Williamson


A Legal Issues Primer for Open Source and Free Software Projects - Chapter 4


[A Legal Issues Primer for Open Source and Free Software Projects](" target="_blank)


June 4, 2008

The Gist

When reading a patent it is recommended to start with the claims, as this is the "legally binding" portion. The file wrapper is also important as it could contain statements that limit the patent.

The Good

  1. The footnotes hold some interesting and potentially useful information.
  2. Once again the authors are very clear that they aren't trying to give legal advice.
  3. This gives a good overview of how patents work.

The Bad

  1. This chapter was much more dry and harder to read than previous chapters.
  2. It would be helpful to have an example showing what they're talking about.
  3. It's a very foreboding chapter, that makes it seem like patents could ruin everything.

The Questions

  1. The idea of willful infringement doesn't really make sense, just because you know about something doesn't mean you realized that you used it. How do they prove willful infringement.
  2. Is the "file wrapper" the legal name for those documents, or is that a colloquialism because they're talking specifically about software?
  3. How do they decide if you're ex parte or inter partes.


This chapter was extremely dry and didn't have much information past what is a patent and a few ways you might be able to get past patent infringement. It would have benefitted greatly from having an example patent, even if it wasn't a legitimate patent.
2 Red Roses

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