I thought that there was a really great idea from a commenter at the end of your talk whereby free software would be considered by law 'in the public interest' and becomes except from applying to patent lawsuits at all.
Not only would this meet our goals of being able to write and use free software without consequence, but it would also encourage businesses to publish free software to protect their efforts. I like it.
I share Ciarán's objections to this idea, but I thought I'd add some points of my own. Not wanting to open the "GPL vs BSD" debate -- I find the GPL more to my liking, but I still think it's important that people be able to license things as they wish, and this idea would seem incompatible with the ideals of the BSD license. Saying "free software is exempt from patents" would mean that any BSD-licensed software that infringes on others patents would not be a fully open product. You could use it in other free software projects, but you would be unable to use it in a proprietary product without patent issues. So effectively, it would transform the BSD into the GPL. Also, would this law be applied to free-as-in-speech software, or free-as-in-beer software, or both? If I write a proprietary program but give it away for free (freeware), am I exempt? If I write a GPL program but sell it, am I exempt? It seems a tad unfair to say that commercial open source software is exempt from patent lawsuits, as it would mean that a company could gain exemption merely by providing the source code to their software. That would further our interests, but I'm not sure it would really be in the interest of the industry. While I like free software, I respect the right for people and companies to keep secrets, if they wish. I prefer to let the market decide: if you want to lock up your software, then I won't buy it, but that doesn't mean I should be able to stop you from doing so. I find it troubling when people suggest special rules for free software. For example, at a recent talk, someone asked Richard Stallman: "if you want shorter (5 year) copyright terms, wouldn't that mean that all GPL'd software would go into the public domain after 5 years and it could then legally be used in proprietary software." And his answer was that there would have to be a special exception for free software so that the copyright term lasted longer. Sorry, Richard. I like the GPL and what you've done, but it seems hypocritical to ask for everybody else's copyright to expire but let us keep ours because it suits our interests. Patents are a plague on the entire software industry. They are bad for free software. They are bad for proprietary software. Patent reform therefore needs to be industry-wide. We can't make this a free vs proprietary issue, because it's bigger than that. It's bigger than the issue of whether source code is available and whether you are free to modify it -- this is a fundamental issue of being allowed to write any software you can imagine, and I want the right to be able to do that whether I am releasing my source code or not. Matt