By Rob Tiller,
Vice President and Assistant General Counsel, IP, Red Hat
RALEIGH, NC – Open source software is one of the most dynamic, innovative sectors of the U.S. economy, but the U.S. patent system is a costly hindrance to open source innovation.
Although the patent system was created to foster innovation, it’s simply not an engine for innovation for open source. A recent court case could change the patent rules for the better.
On October 30, 2008, the U.S. Court of Appeals for the Federal Circuit issued a major decision, In re Bilski, concerning the subject matter limits of patent law. The case presented questions relating to software patents, an issue of great significance to the free and open source software (FOSS) community.
The Bilski decision recognized that abstract ideas are not patentable.
The Federal Circuit abolished the “useful, concrete, and tangible result” test that had been applied to allow dubious software patents. It substituted a new test: to be patentable, a process must be either “tied to a particular machine or apparatus” or must “transform a particular article into a different state or thing.”
Red Hat delivers free and open source solutions, and it filed a brief in Bilski to educate the appeals court about FOSS and the problems with software patents. Free and open source software is produced through a process of collaboration among many individual developers who share their source code over the Internet in order to improve it.
Open source at odds with patent system
The open, collaborative activity at the heart of open source is at odds with the patent system, because patents exclude the public from making, using or selling a patented invention. Open source developers seek to contribute code to the community – not to exclude others from using the code.
Although it is well accepted that patents exist to foster innovation, patents do not serve this function for FOSS.
History shows that software innovation happens without patents: prior to the 1990s, there were few software patents, but software developers produced programs that were not only innovative, but world changing. This software was protected by copyright, and patents were understood to be unnecessary.
Today the patent system is, if anything, a hindrance to open source. Developers face the risk that the original code they have written in good faith could be deemed to infringe an existing software patent. Software patents are difficult to interpret, even for experts in computer science and software engineering.
The Federal Circuit decisions in the late 1990s that allowed software patents produced a land grab that has led to more than 200,000 software patents today. Many of these patents are of poor quality, and many have vague boundaries.
Experts disagree
Experts often disagree as to whether a particular patent claim covers a particular program. There is no practical way to “clear” any given program by examining all the possible patents that might apply to the features or functionality of the program.
This means that the risk of lawsuits is a fact of life for the software innovators. Thus, a risk of litigation exists for every open source project, and the potential cost of patent litigation runs into millions of dollars for a single case.
Despite the hindrances of the patent system, open source continues to expand at an exponential rate. One can only imagine how that expansion would accelerate if the braking effect of the patent system were lifted.
In its new opinion, the court declined to settle the issue of when, if ever, software based inventions should be patentable. Even so, the new test in Bilski will probably limit the patentability of software.
Future cases will shed further light on this issue. In the meantime, the holder of a poor quality software patent is likely to think more carefully about bringing a lawsuit, because the patent may be ruled invalid.
The FOSS community and its supporters need to explain to our friends, neighbors, and legislators the practical realities of software patents. We need to continue to challenge received wisdom about innovation in software, and to explain that patents do not always foster innovation.
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