In April, I wrote about the challenges the patent system presents to open source software development. I believed then that Mozilla needed to do more by leveraging our mission and position as an innovator. Today, I’m excited to announce the Mozilla Open Software Patent Initiative and Mozilla Open Software Patent License (“MOSPL”). This is our proposal for a first step towards improving the impact of patents on open source software development.

The MOSPL was born from a need to find practical solutions to the challenges to creating openness in the software space. Since its beginning, Mozilla has been bringing together software companies to encourage development and adoption of new, open, and royalty-free technological standards (such as the Opus audio codec and the next generation Daala video codec). We found that, without related patents of our own, it was extremely difficult to persuade companies (particularly large ones) to openly license their patents or adopt standards based on our developed technology. We ran into this problem repeatedly, especially in spaces that are more commonly patented. Obtaining a patent not only gave us leverage in these discussions, it also presented another benefit for open innovation by helping ensure that this work would not be overlooked by the patent office’s prior art searches (which typically might not include open source projects). Over time, this may even reduce the number of abstract, vague, and overbroad patents and the problems that arise from them.

However, once we obtained patents and licensed them openly for our standards work, we ran into another problem: because patents are a right to exclude, owning a patent means that others, from large companies to hackers, cannot use the technology embodied in the patent without a license from the owner. This is not a small problem for Mozilla – the whole point of creating open technology is to encourage use. How would we encourage open use of the ideas embodied within the patents that were outside of the standard? We realized that what we needed was a way to balance the benefit we received from patents with the negative effects of the right to exclude that they created.

As we struggled with this dilemma, we realized we weren’t alone. From Tesla, to Google, to individual developers, many patents are owned for purposes that aren’t at odds with innovation, such as preventing trolls from halting future development and preventing other aggressive incumbents abusing their patent portfolios to stifle competition. However, these owners also realized the broad right to exclude creates challenges for others whom they wanted to encourage to adopt or innovate upon their work. This led to many interesting solutions, from patent pledges, to statements of intent, and implied licenses.

The MOSPL v1 is Mozilla’s proposal to address this challenging issue. It grants everyone the right to use the innovations embodied in our patents in exchange for a guarantee that they won’t offensively accuse others’ software of infringing their own patents and that they will license their own patents out under royalty-free terms to all open source software projects. It represents our effort to address the harm caused by patents when applied to open source software. We are actively seeking feedback on it, so please help us by giving us your thoughts in the governance group.

We’d love to see more companies approach licensing their patents to maximize openness in a way that makes sense for them. If you’ve made the decision as a company or individual to consider open licensing for your patents, we’ve created an Open Patent Licensing Guide to help you understand some of the parameters we encountered through the process. We look forward to seeing more innovation in the open patent licensing space and are excited that even large companies are taking steps to help open innovation thrive, recognizing the importance that openness plays in creating the next generation of technology.