Patenting Open Source Software 60
dp619 writes "The tactic of patenting open source software to guard against patent trolls and the weaponization of corporate patent portfolios is gaining momentum in the FOSS community. Organizations including the Open Innovation Network, Google and Red Hat have built defensive patent portfolios (the latter two are defending their product lines). This approach has limitations. Penn State law professor Clark Asay writes in an Outercurve Foundation blog examining the trend, 'Patenting FOSS may help in some cases, but the nature of FOSS development itself may mean that patenting some collaboratively developed inventions is inherently more difficult, if not impossible, in many others. Consequently, strategies for mitigating patent risk that rely on FOSS communities patenting their technologies include inherent limitations. It's not entirely clear how best to reform patent law in order to better reconcile it with alternative models of innovation. But in the meantime, FOSS still presents certain advantages that, while dimmed by the prospect of patent suits, remain significant.'"
How to reform patent law? (Score:5, Insightful)
Reforming patent law would be simple, software should simply not be patentable. You can copyright it sure, but no patents.
Article is confused about purpose (Score:5, Insightful)
the nature of FOSS development itself may mean that patenting some collaboratively developed inventions is inherently more difficult, if not impossible, in many others.
... and...
For starters, because of the collaborative, incremental nature of FOSS development, in many cases it would be difficult to determine who from any given community qualifies as a joint inventor. Only those that contribute significant material to the inventive concept embodied in the patent’s claims are considered joint inventors; those that merely implement the invention or that contribute only “prior art” material are not.
... are both entirely true. As the article notes, in order for a patent to be enforceable, all of the inventors have to be properly named on the patent - no extra inventors, and no leaving anyone out - and they all need to either assign the patent to a common entity, or agree to jointly participate in any lawsuit:
For instance, enforcing jointly owned patents in a court of law requires the unanimous consent of all joint owners.
So, yes, it would be difficult, if not nigh-impossible, to enforce these FOSS patents.
Let me repeat that...
Enforce these Free and Open Source Software patents.
There seems to be some fundamental confusion about purpose. And who are you going to enforce them against? The trolls, as the summary suggests? But they're trolls because they don't make any products, and if they don't make anything, then they can't infringe. So, what, in the name of "defending against patent trolls", Free OSS foundations are going to start suing manufacturers such as Microsoft, Google, Apple, or Red Hat?
All of that said, there is a very good reason the FOSS community should be filing patents - patent Examiners look to their own databases first for prior art. If FOSS inventors file patent applications, let them be published, and then abandon the application to the public domain, that will add to the set of available prior art and make it more difficult for trolls to get patents. And since you never intend for such applications to issue, they can be drafted and filed very cheaply: throw in your source code, your comments or flow charts or functional specs, slap a single claim on the end, and you're good enough to publish.