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+# If this makefile is not generic enough to support a translation,
+# please contact debian-www.
+
+WMLBASE=..
+CUR_DIR=reports
+SUBS=
+
+include $(WMLBASE)/Make.lang
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+#use wml::debian::template title="Debian reports" BARETITLE="true"
+
+<p>Debian publishes and disseminates reports or position statements on topics
+related to Free Software and its distribution.</p>
+
+<h2>Available reports</h2>
+
+<ul>
+
+<li> The <strong><a href="patent-faq">Community Distribution Patent Policy
+  FAQ</a></strong>, first published in July 2011, answers frequently asked
+  questions about (software) patents and their effects on community-driven Free
+  Software distributions.<br /> This report has been prepared with the help of
+  the <a href="http://www.softwarefreedom.org/">Software Freedom Law
+  Center</a>.</li>
+
+</ul>
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+#use wml::debian::template title="Community Distribution Patent Policy FAQ" BARETITLE="true"
+
+<pre><code>Version: 1.0
+Published: 8 July 2011
+</code></pre>
+
+<h1>Introduction</h1>
+
+<h2>For whom is this document intended?</h2>
+
+<p>This document presents information about patents and patent liability useful
+for developers working on community distributions of Free and Open Source
+Software (FOSS).  By community distributions, we mean collections of free
+software packages maintained and distributed by organizations composed of
+volunteers, where neither the organization nor the volunteers seek to make a
+profit from the activity.  Such community-based distributions may sell as well
+as give away their work product, possibly on CDs or USB storage media or by
+paid-for downloads as well as by gratis distribution.</p>
+
+<p>This document has been prepared by lawyers at the <a href="http://www.softwarefreedom.org">Software Freedom Law
+Center</a> (SFLC) at the request of the <a href="http://www.debian.org/">Debian
+project</a>, and may be helpful to similar community FOSS
+distributions.  Its statements about legal matters are accurate as of the date
+of composition regarding US law, and may be applicable to other legal systems.
+But this document does not constitute legal advice.  It has not been based on
+analysis of any particular factual situation, and any lawyer providing an
+opinion on the questions presented below would need to ascertain the particular
+facts and circumstances that might vary this information in a particular
+setting.  You should not rely upon this document to make decisions affecting
+your project's legal rights or responsibilities in a real-life situation
+without consulting SFLC or other lawyers.</p>
+
+<h1>Background on Patents</h1>
+
+<h2>What is a patent?</h2>
+
+<p>A patent is a state-granted monopoly granting an inventor exclusive rights to
+make, sell, offer for sale, have made, or import the claimed invention for the
+limited term of the patent.  The patent holder may then license, on an
+exclusive or non-exclusive basis, one or more of the rights granted.</p>
+
+<h2>How long is a patent's term?</h2>
+
+<p>Generally, patents issued in the last 15 years by most governments expire 20
+years from the filing date of the patent application.  US patents with a filing
+date before June 8, 1995, provide protection for up to 17 years counting from
+the date of grant, or 20 years from the filing date, whichever occurs later.</p>
+
+<p>There are exceptions.  Patents may have their terms extended by the issuing
+office or a court, but this rarely happens for patents on software.  Patent
+terms may also be shortened by agreement with the applicant during
+<q>prosecution</q>, that is, during the patent office procedure leading to issuance.
+If a patent's terms has been shortened during prosecution, a <q>terminal
+disclaimer</q> statement will appear on the patent's front page.</p>
+
+<h2>How does patent protection differ from copyright protection?</h2>
+
+<p>A copyright owner has the right to prevent others from making unauthorized
+copies of the copyrighted program, but not from independently creating a
+program with the same features.  Independent creation is therefore a complete
+defense to an allegation of copyright infringement.  In addition, <q>fair use</q> is
+a defense against copyright infringement, or is a substantive limitation of
+copyright, in every copyright system.  Patent law lacks any fair use exemption,
+so independent creation, use for research, or reverse engineering for
+interoperation or educational purposes are not defenses against allegations of
+patent infringement.</p>
+
+<h2>Is there a world-wide patent on anything?</h2>
+
+<p>At present, no world-wide patents exist.  Outside the European Union, where
+applications may be consolidated, patents generally must be applied for in each
+country in which patent protection is sought.</p>
+
+<h2>What are patent claims?</h2>
+
+<p>Claims, which are the most important part of the patent, determine the actual
+scope of the invention to which the patent applies.  Only the claims define
+what exclusive rights cover, that is, practicing the claims without license is
+infringement.  Reading and understanding the claims of a patent is the key to
+determining if a given product or process infringes.</p>
+
+<p>Each claim is a single sentence. Claims begin with a <q>preamble</q> followed by one
+or more <q>limitations</q>.</p>
+
+<p>For software to infringe a patent, the software (or system with embedded
+software) must implement everything recited in one of the patent's claims. If
+you do not practice one or more of the elements of a claim, then you cannot
+directly infringe that claim.</p>
+
+<h2>What are independent claims?</h2>
+
+<p>A patent claim is called <q>independent</q>, if it makes no reference to any other
+claim in the patent.</p>
+
+<h2>What are dependent claims?</h2>
+
+<p>Dependent claims explicitly incorporate the contents of other claims in the
+patent. A dependent claim is necessarily narrower in scope than the claim on
+which it depends, because it includes one or more additional limitations. In
+Venn diagram terms, the area of coverage for a dependent claim is fully
+contained within the coverage of the claim it references.</p>
+
+<h2>How are software-related patent claims written?</h2>
+
+<p>Software-related patent claims in recently-issued patents often take the form
+of <q>system</q> or <q>apparatus</q> claims, <q>method</q> claims, and <q>computer program
+product</q> or <q>computer-readable medium</q> claims. System claims recite the
+elements of a system (which might include one or more computers) as a kind of
+machine or static object. Method claims are algorithmic in
+form. Computer-readable medium claims typically duplicate the limitations found
+in corresponding system or method claims in the patent, but are intended to
+cover software embodied in a storage or distribution medium. Computer-readable
+medium claims are also often used when claiming inventions that focus on data
+structures and user interfaces.</p>
+
+<h1>Infringing a patent</h1>
+
+<h2>What does <q>patent liability</q> mean?</h2>
+
+<p>Liability is a legal responsibility that is enforceable by a court.  In this
+document we use term <q>patent liability</q> to encompass orders that a court can
+give if a party is found to infringe a patent.  For example, once a party is
+found to infringe, a court can order that party to pay money to the patent
+holder, called <q>damages</q>, and/or an order to stop the infringing conduct, which
+is called an <q>injunction</q>.</p>
+
+<h2>What does it mean to <q>infringe</q> a patent?</h2>
+
+<p>Infringing a patent means practicing one or more of its claims without license.
+If someone uses, makes, sells, has made, offers for sale, or imports software
+that practices every element taught by a claim in a patent, that patent is
+infringed by the software.</p>
+
+<p>It is possible to be liable for infringement without directly infringing.
+<q>Contributing to</q> or <q>inducing</q> infringement also give rise to patent
+liability.</p>
+
+<h2>What is inducing infringement?</h2>
+
+<p><q>Inducing infringement</q> means actively encouraging someone else to infringe a
+patent.  Liability requires proving that the party charged intended to cause a
+third party to infringe.  Additionally, the inducer must either know the patent
+exists, or strongly suspect its existence and make efforts not to know.  If,
+for example, documentation is written by someone with knowledge of a patent's
+claims, and that documentation explains how to use the program in an infringing
+fashion, the instructions might be held to induce infringement.  Where a
+community of volunteers maintains a software package, and associated
+documentation, unless the volunteers who produce the documentation know of the
+patent supposedly infringed, they cannot induce infringement.</p>
+
+<h2>What is contributory infringement?</h2>
+
+<p><q>Contributory infringement</q> means providing material assistance to the
+infringement of a patent.  In the context of software, this would mean
+providing non-infringing software that could be combined with other software or
+hardware to produce an infringing system.  Contributory infringement also
+requires knowledge of the patent infringed.  Moreover, if the software has
+substantial non-infringing uses, it is not contributory infringement to provide
+it, even if it is subsequently used in an infringing combination.</p>
+
+<h2>What are the consequences of infringing a patent?</h2>
+
+<p>If a party is found to be infringing a patent, courts may order a stop to the
+infringing conduct, the payment of damages for past infringement, or both.  In
+this document we use term <q>patent liability</q> to encompass all of these
+consequences.</p>
+
+<h2>What is an injunction?</h2>
+
+<p>An injunction is a court order to a person or persons to do something or to
+refrain from doing something.  Violating an injunction leads to being held in
+contempt of court.  Injunctions may be <q>preliminary</q>, to prevent change of
+state while litigation is occurring, or <q>permanent</q>, to order or prohibit
+conduct as remedy at the end of a lawsuit, once liability has been found.  A
+preliminary injunction to prevent infringing conduct during litigation may be
+issued if the court finds damages at the end of the case would be insufficient
+to protect the patent holder's rights, and if success in the case is held to be
+likely, and the public interest would not be harmed by the injunction.  A
+permanent injunction to prevent infringing conduct may result from a finding of
+infringement liability.</p>
+
+<h2>Can injunctions be issued against FOSS distributions?</h2>
+
+<p>Yes.  If a FOSS distribution was found to infringe someone's valid patent, a
+permanent injunction against continued distribution of the infringing program
+or feature might well occur.</p>
+
+<p>It is not likely, however, that such an injunction would prevent distribution
+of the whole distro, or even of an entire package.  More likely, a feature or
+set of features, would have to be disabled, modified so that the software no
+longer infringes, or removed entirely, in the country where the finding of
+patent infringement was made.</p>
+
+<p>Further, designing around the patent claims at stake can prevent even a feature
+or features from being removed.  Once even one element of a patent claim is no
+longer being practiced, as we have said, the patent claim is no longer
+infringed.  In US patent litigation, the crucial moment of definition occurs in
+what is called a <q><em>Markman</em> hearing</q>, after which the trial court gives a
+definitive ruling on what the patent claims at issue mean for the purposes of
+that lawsuit.  Once a <em>Markman</em> hearing has happened, and the scope of the
+asserted claims have been narrowly and conclusively defined, it becomes much
+easier to design around.</p>
+
+<h2>What are damages?</h2>
+
+<p>In patent law, damages are money awarded by the court to the plaintiff when the
+defendant has been found liable for patent infringement. While the law provides
+no maximum damages for patent infringement, it does provide a minimum--the
+reasonable royalty for the use made of the invention by the
+infringer. Additionally, the court may increase the damages, up to three times
+the actual damages, in cases of willful infringement.</p>
+
+<h2>What is willful infringement?</h2>
+
+<p>Infringement is willful if the infringer knew of the patent, unless the
+infringer had a good faith belief that the patent was invalid, or that his
+conduct did not infringe.  The patent holder must show all the elements of
+willfulness, and in the US courts must do so at a higher standard of proof,
+which is called <q>clear and convincing evidence</q>.</p>
+
+<h2>I had no prior knowledge of a patent, can I still be held liable?</h2>
+
+<p>Knowledge of a patent is not in general required if the party is charged with
+direct infringement.  To be found liable for inducing or contributing to
+infringement, as we have said, knowledge of the patent or specific efforts to
+avoid learning of the patent is required.</p>
+
+<p>In practice, patent holders usually request those they believe infringe to take
+licenses.  If the party takes the license offered, the holder gets royalties
+without suing for them.  If the party declines the license, the patent holder
+has put them on notice, and is therefore in a position to claim intentional
+infringement, which results in higher damages and the possibility of recovering
+attorney's fees.  It is likely but not certain that before any community-based
+distribution is sued for patent infringement, it will receive at least one
+letter demanding that a license be taken.</p>
+
+<h2>What if the infringement was accidental, inadvertent and unintentional?</h2>
+
+<p>An unintentional or inadvertent infringement cannot be willful, as we said
+above.  Nor can one contribute to or induce an infringement accidentally, as
+knowledge and intention are both required.  But one could be liable for direct
+infringement, without knowledge or intention, by using or selling or making or
+having made infringing software without more.</p>
+
+<h2>How do I become aware of the existence of a patent?</h2>
+
+<p>There are innumerable ways by which you may become aware of the existence of a
+specific patent.  Aside from being directly contacted by a patent holder, you
+may learn about a particular patent through a web search or mailing list, or in
+connection with your employment, etc.  If you do become aware of a patent that
+concerns you, it is best that you speak to an attorney, rather than share such
+knowledge or speculation in a public forum.</p>
+
+<h2>What are the defenses available in a patent infringement action?</h2>
+
+<p>First, there may be many defenses specific to the facts and circumstances of a
+particular situation, and it is the lawyer's job to spot and develop those
+defenses.  Some defenses are or may be present in most cases, and they include:</p>
+
+<p>Permission: You are not liable for infringement if you have permission to use
+the claims.  Such permission could be explicit.  An explicit permission is
+called a <q>license</q>.  Permission can also be implicit: it can result from
+conduct or statements by the patent holder which appeared to constitute
+permission and on which you relied.  (Lawyers call this <q>estoppel</q>.)  It can
+also result from sheer inaction by the patent holder, who can effectively
+permit infringing conduct by <q>going to sleep on its rights</q>, which lawyers call
+<q>laches</q>.</p>
+
+<p>Non-Infringement: A non-infringement determination is a showing that none of
+the patent claims actually <q>read on</q> the software charged. In other words, the
+software does not actually implement every element of what is recited in any
+claim.</p>
+
+<p>Invalidity: If the patent is invalid, it cannot be infringed.  Invalidity can
+be shown by proving that the subject matter of the patent is outside the scope
+of patent law.  It can also be shown by demonstrating, under US law, that the
+patent is <q>non-novel</q> or <q>obvious</q>.  Under patent law, in order for a patent to
+be valid, the claimed invention must have been useful, reducible to practice,
+novel, and non-obvious to a <q>person having ordinary skill in the art</q> at the
+time that the invention was made. An invalidity defense, therefore, shows that
+the patent failed to meet one of these requirements.</p>
+
+<h1>The patent risk to a community distribution</h1>
+
+<h2>Can you provide examples of patent infringement suits against FOSS communities?</h2>
+
+<p>No.  Fortunately, few such cases exist, and none has yet developed to final
+judgment.  To date, no court has ever addressed most of the issues unique to
+free software distribution. We believe that this is because FOSS communities do
+not have <q>deep pockets</q> from which to pay royalties, and suing individual
+developers who do not have large revenues makes bad press for patent holders
+without achieving any useful outcome.</p>
+
+<h2>We are a FOSS distribution and we don't make any money.  How will we pay damages if they are awarded against us?</h2>
+
+<p>This question, like all other similar questions about the legal risks and
+responsibilities of projects, depends very much on the details of their legal
+structure and commercial relations.  There is no general answer about how
+projects deal with their legal risks, including the risks of damages judgments
+for patent infringement or other liabilities.
+<a href="http://www.softwarefreedom.org">SFLC</a>, the <a href="http://sfconservancy.org/">Software Freedom
+Conservancy</a>, the <a href="http://www.apache.org/">Apache Software
+Foundation</a>, the <a href="http://www.fsf.org">Free Software
+Foundation</a>, <a href="http://www.spi-inc.org/">Software in the Public
+Interest</a> and other organizations help projects to fit
+within legal contexts and organizations that can usefully address these
+questions at a general level.  If your distribution or a project within your
+distribution believes that it faces potential legal liability, you should
+consult us or one of the other organizations named.</p>
+
+<h2>We are a FOSS distribution and we make money. Does that make us more susceptible to a patent infringement suit?</h2>
+
+<p>Anyone making revenue is a more attractive target for a patent holder to sue
+than someone who makes no money out of which damages could be paid.  A
+community distribution that has absolutely no revenue is not an attractive
+target.  But even if you make a few hundred thousand dollars a year in sales,
+compared to a profit-making enterprise the size of Microsoft, or even Red Hat,
+you are not worth the expenses of litigation to a patent troll or other
+rational plaintiff.</p>
+
+<h2>I have heard that distributing source code is safer than distributing object code. Is that true?</h2>
+
+<p>Yes.  Distributing source code is probably safer than distributing binaries,
+for a few reasons.  First, source code, like the patent disclosures themselves,
+teaches how the invention works, rather than being the invention.  If source
+code standing alone can infringe the patent, it is difficult to understand how
+handing out photocopies of the patent itself wouldn't infringe.  Second, in the
+US, courts <em>may</em> find source code to be speech, as we believe they should find,
+thus making source code subject to First Amendment protection.  We know little
+about how the Supreme Court would harmonize the patent law with First Amendment
+requirements.  We at SFLC have written several briefs in the Supreme Court
+addressing these issues, but the Court has never reached or decided them.
+Furthermore, as mentioned above, liability for patent infringement can be
+imposed where one enables or encourages another to infringe a patent, but the
+requirements of knowledge and intent are more strict in secondary liability
+situations. Because a user must first compile the source code and install the
+software in order to infringe, a court is less likely to hold the community
+liable for inducing or contributing to the infringement.</p>
+
+<h2>As part of a community distribution project, who is most likely to get sued for patent infringement?</h2>
+
+<p>This is a problem for the potential patent aggressor, more than for the
+distribution.  A community distribution comprised by volunteers, without any
+hierarchical structure of employment or supervision, cannot be sued by suing
+<q>the head</q>.  If infringement requires intent and knowledge or specific efforts
+not to know, as it does in cases of inducing or contributing to infringement,
+the individual with such intent and knowledge must probably be found and sued
+in his own person.  If people who write code and documentation don't read
+patents, and the volunteers who develop code for a package do not maintain the
+same package or a related package, the aggressor may find it difficult to sue
+anybody at all.</p>
+
+<p>The specifics of any given situation, however, will undoubtedly be crucial.  As
+with all other matters of the kind, if you believe a patent is likely to be
+asserted against your distribution or its volunteers, you should contact SFLC
+or another lawyer immediately.</p>
+
+<h2>Are you suggesting that it is better for developers and contributors not to read patents? If yes, why?</h2>
+
+<p>Yes. Unfortunately, U.S. patent law creates disincentives for searching through
+patents, even though one of the main justifications given for the patent system
+is that the patent teaches the public how to practice an invention that might
+otherwise be secret.  <q>Willful</q> infringement subjects the infringer to enhanced
+damages when they are aware of the patent and intend to infringe, and reading
+patents increases the probability that subsequent infringement will be found to
+be willful. Moreover, we find that developers often assume that the patents
+they discover are broader in scope than they actually are, and thus such
+developers become overly or needlessly worried. If, despite this, you do intend
+to conduct a patent search, you should seek legal advice first.</p>
+
+<h2>I am outside the United States. Do I have anything to worry about?</h2>
+
+<p>Although most countries are members of the World Intellectual Property
+Organization (WIPO) as well as signatories to the Patent Cooperation Treaty
+(PCT), large corporations generally restrict their patent acquisition
+activities to the <q>Big Three</q>: the US, EU, and Japan. This is considered
+sufficient protection for most companies, although companies are increasingly
+filing patent applications in China with the hope that patent rights will
+eventually be adequately respected by the government and business
+communities. In addition, large multi-national corporations in other
+jurisdictions, such as Korea and Canada, will usually file patent applications
+in their own countries before filing patent applications internationally.  In
+India, some software has been patented despite the clear statutory declaration
+that software <em>per se</em> is unpatentable.  SFLC in India has begun challenging
+such patents.</p>
+
+<p>But regardless of where you work, software that infringes patents cannot be
+imported into countries where those patents have issued, which means that you
+must at least be concerned about the ability to reach your intended users.</p>
+
+<p>As always, consultation with a local lawyer is a good step if you have any
+questions about your situation or liabilities.</p>
+
+<h2>Are there any guidelines to limit our risk of patent infringement?</h2>
+
+<p>Yes.  This document is meant to educate about patent risk, and while it is
+difficult to give advice regarding every reader's specific situation, there are
+a few guidelines that may be extracted.</p>
+
+<ul>
+<li><p>Reading patents, especially when researching how to design a contribution to
+your free software project, may expose communities to liability that they
+would not otherwise have.</p></li>
+<li><p>Parts of a free software community that distribute source code and not object
+code probably have slightly less patent risk.</p></li>
+<li><p>Distributing free software commercially is probably more risky than
+distributing software gratis.</p></li>
+<li><p>Having the ability to remove features and packages quickly and easily from
+distribution will help mitigate any damages the community could incur.</p></li>
+<li><p>Patent litigation is not an amateur sport.  If you are contacted by anyone
+threatening to assert a patent against you, contact the Software Freedom Law
+Center or another qualified attorney as soon as possible.</p></li>
+</ul>
+
+<hr />
+
+<p><strong>Acknowledgements.</strong> This document has been prepared by lawyers at SFLC, with
+inputs from Stefano Zacchiroli, on behalf of the Debian Project.</p>