Considerations on Patents that Read on Language Infrastructure

In an essay last Friday entitled Why free software shouldn't depend on Mono or C#, RMS argued a key point that I agree with: the software freedom community should minimize its use of programming language infrastructure that comes primarily from anti-software-freedom companies, notwithstanding FaiF (Free as in Freedom) implementations. I've been thinking about an extension of that argument: that language infrastructure created in a community process is likely more resilient against attacks from proprietary software companies.

Specifically, I am considering the risk that a patent attack will occur against the language or its canonical implementation. We know that the USPTO appears to have no bounds in constantly granting so-called “software patents”, most of which are invalid within their own system, and the rest may be like the RSA patent, and will force our community to invent around them, or (as we had to do with RSA), “wait them out”. I'd like to consider how these known facts apply to the implementation of language infrastructure in the Free Software world.

Programming languages and their associated standard libraries and implementations evolve in three basic ways:

• A Free Software community designs and implements the language in a grassroots fashion. Perl, PHP, and Python are a few examples.
• A single corporate entity controls the language and its canonical implementation. They perhaps also convince some standards body to adopt it, but usually retain complete control. C# and Java a few examples.
• A single corporate entity controlled the language initially, but more than 20 years have passed and the language now has many proprietary and Free Software implementations. C and C++ are a few examples.

The patent issues in each of these situations deserves different consideration, primarily related to the dispersion of patents that likely read on the given language implementation. We have to assume that the USPTO has granted many patents that read on any software a person can conceivably write. The question is always: of all the things you can write, which has the most risk of patent attack from the patent holders in question?

In the case of the community-designed and Free-Software-implemented languages, the patent risk is likely spread across many companies, and mitigated by the fact that few have probably filed patents applications designed specifically to read on the language and its implementation. Since various individuals and companies contributed to the development and design, and because it was a process run by the community, it's unlikely there was a master plan by one entity to apply specifically for patents on the language. So, while there are likely many patents that read on the implementation, a single holder is unlikely to hold all the patents, and those patents were probably not crafted for the specific language. Only some of these many patent-holding entities will have a desire to attack Free Software. It is therefore less likely that a user of the language will be sued; a patent troll would have to do some work to acquire the relevant patent. If that unlikely event does anyway occur, the fact that the patent was not specifically designed to read on the language implementation may indeed help, either by easing the process of “inventing around” or by making it more difficult for the patent troll to show the patent reads on the language implementation. Finally, if the implementation is under a license like GPL, or the Apache License (or any license with a patent grant), those companies that did contribute to the language implementation may have granted a patent license already.

Of course, these are all relative arguments against the alternative: a language designed by a single company. If a single corporate entity designed and implemented the language more recently than 20 years ago, that company likely filed many yet-unexpired patents throughout the process of designing and implementing the language and its infrastructure. When the Free Software community implements fresh versions of the language from scratch, it's very likely that it will generate software that reads on those