Open Source Software Patents an Oxymoron?

“Recent events have drawn attention to the intersecting realms of patents and open-source software. IBM has donated 500 patents for use in open-source software, Sun plans to liberate 1,600 for use with its open-source Solaris operating system, and a Hewlett-Packard executive believed in 2002 that Microsoft planned to attack rival open-source projects with its patents,” according to Stephen Shankland of Cnet. That should be good, right?

Linus Torvalds, Brian Behlendorf and Mitch Kapor don’t think so. Even with donations of patents and white knights like IBM to protect Linux, other companies like Microsoft could launch a patent attack that could devastate open source. “We have to be concerned about…the use of patent WMDs. That will be the last stand of Microsoft,” said Kapor.

Aside from the melodrama, is there a case for the granting of software patents? Back in the 1980’s, when Unix was in its heyday, software patents were not filed because software was considered a collection of algorithms (not patentable) that was “expressed” in a unique form similar to that of a book or music. Hence, software was protected under copyright and trade secret status.

It seems inevitable that the success of open source spawned the boom in software patent filings, since trade secrets can no longer be maintained in open source and copyrights are routinely ignored. Patents are published but provide the grantee with exclusive ownership of the process for close to two decades. This made sense when hardware manufacturing processes and inventions might take many years to finance and develop, but not in the case of an intangible like software.

I expect there will be more filings – not less – for software patents. In operating systems alone I routinely review patents that are mere windowdressed versions of basic virtual memory, filesystem, stack, and driver functions that predate my involvement at Berkeley. The temptation to file by big entities (remember – “PatentLand” is pay-to-play) is just too great.

Perhaps a very short-term protection status for software patents (like three years) with a separate fast-track review process might be a far more reasonable solution to the current dilemma.

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