“Why pay for what’s Free? Minimizing the Patent Threat to Free and Open Source Software”

Law Journal Article - Reaction Paper 

Article Summary

In this article the author talks how to minimize the legal threats faced by free and opensource software. The author describes the history of free software movement, various legalchallenges it faced, and practical means to overcome the legal challenges. The challengesfaced by free and open source software are critical as its use is increasingly gettingwidespread.

Traditionally the courts have struggled with the issue of software patentability, becausesoftware is similar to the un-patentable mathematical algorithms. With Diamond v. Diehr andLotus Development Corp. v. Borland International, the courts started to favor softwarepatentability and companies increasingly protected their software with patents. The worstexample of software litigation has been SCO group, who had filed multitude of lawsuitsagainst variety of corporations seeking licensing and trademark damages for using Unixsoftware without SCO’s permission.

The Free software movement holds its roots in free Unix-like operating system RichardStallman wrote in 1984, as he got frustrated when proprietary software which had began toreplace the freely modifiable software on computer hardware of the day. The free softwarefoundation (FSF) Stallman founded grants four freedoms to the user using free software.They are the freedoms to run a program for any purpose, to learn and modify how a programworks, to redistribute copies of program, and to improve a program to benefit all. FSFcreated universal license to be used to keep software programs free. That license now calledGNU General Public License (GPL) is in its version 3. The GPL version 2 emphasized“copyleft” in contrast to restrictive usual copyright protected intellectual material. In 2007,GPL version 3 was released. GPL makes the patent grant explicit and restricts crosslicensing. If a company holds a patent and incorporates in GPL licensed software, then thepatent automatically extends to all recipients.

The new GPL version 3 license enhanced the free software protection. The OpenInvention Network (OIN), an intellectual company, was created to pool patents against thethreat of suits against Linux. OIN acquires patents through purchases and donations. Thenin turn, OIN licenses the patents royalty free to companies who agree not to assert their patent rights against Linux software. Recently U.S. Patent and Trademark office (USPTO)started to work with developers to improve quality of software patents and possibly createautomated database for open source software in assistance with IBM.

The courts decisions to upheld software patents have chilling effect on softwareinnovation. Companies can patent even obvious and clear ideas, thereby stopping othersfrom using them to renovate further. Thus large numbers of building blocks have becomelegally inaccessible and programmers have to waste lot of resources and time to reinventwheels just to use the forbidden components. Here the USPTO’s practice of awarding twentyyear long patents to companies who incurred low costs to create patents is unjust andundeserved. Since, software licensed under GPL is released in human readable form, freesoftware is exposed to infringement claims and unjust use by companies who hide the opensource code in their confidential propriety code. In software industry innovation is occurringat a breakneck speed. USPTO requires patent applications to be published in eighteenmonths after filing. And during this time-period, an entire generation of software could getcycled. The software could be obsolete even before patent is issued. This rapid evolutionmakes software developers vulnerable to the submarine patent. The open source software is

 

also able to create industry standards and create works which were deemed unfeasible bytraditional software houses.

The OIN’s cross pooling mechanism, searchable databases and GPL version 3 aredefending free and open source software. OIN creates level playing field and levels theplaying ground for the participants. Materials publishes in the searchable databases such asSourceForge and FreshMeat becomes prior art, and the listing creates statutory bar topatenting. Thus OIN and prior-art databases aid in conjunction with GPL preserve theintegrity of open source mode.

In addition to these methods, few more additional methods are purposed to protect andstrengthen the open source movement. USPTO should employ qualified software engineerswho understand software and how software is developed. Thus UPSPTO will be able toaccess software patent applications for non-obviousness as per 35 U.S.C. § 103. Theordinary software programs, which can be developed easy, need not be patentable. TheUSPTO must provide patent examiners with searchable database so that examiners couldevaluate the relevant prior art and screen applications for novelty. The scrutiny anddisclosure requirements for software patents should be made stricter. When third party isallowed to weigh in before patent is issued, more bad patents will be screened out. If sourcecode is also required to be disclosed then the subject matter during filing time will berevealed. Mandatory source code disclosure will satisfy best mode requirement of 35 U.S.C.§ 112. The publication time needs to be reduced to six months from eighteen months. Theshorter time frame will provide better notice of the intellectual property that is being claimedand cut back on inadvertent infringement. The term for software patents need to beshortened to seven years so that number of filings is reduced and the overlap with other patents more than seven years since issuance will be avoided. Government also needs tosubsidize software standards along the lines of internet so that proprietary software industrycannot get monopoly control over the direction of software industry.

Opinion

The modern business is impossible to run without the use of software. Traditionallybusinesses have relied on software from well established software houses such as IBM, Oracle,SAP, and Microsoft. These software vendors charge lots of money to license and use their software. Recent years have seen increased proliferation of free and open source software.Businesses get software for free and pay small fee to get support necessary to run the software.This has been a big boon and many companies like RedHat, Sugar CRM, are based on freesoftware. During this time of recession and due to competition, corporations are adapting freesoftware to save costs and to be competitive in the market.

The open source software has also allowed cloud computing to blossom and become amajor force in computing. Cloud computing allows both corporations and personal computer users, to access powerful computing resources through internet at utility like prices. The lowprices offered by cloud computing vendors in part are due to their use of free open sourcesoftware to provide service to cloud computing users.

It is evident that open source software is playing a very crucial, money saving andproductive role in today’s economy. Hence the businesses need to watch for any legal actionagainst open source software, to help open source movement in whatever means possible, andto avoid being caught in a situation where legal proceedings stop them from using the free andopen source software. This article certainly helps to increase the understanding how patentsinfringement work in open source software. The author throws good amount of light on the historyof both software patents and open source software. He discusses how open source is defendingcurrently and brings in good arguments about how to strengthen open source software evenfurther.

Traditionally if a corporation wants to use open source software, it pays money to anopen software provider for to provide support. The software provider uses some part of the

 

money paid to protect its customer from indemnity in case some entity files patent law suit on thesoftware use. I think that the software provider buys indemnity insurance for its clients. If the opensource movement is strengthened as per author’s suggestions, then possible future damages dueto indemnity will be reduced. Hence open source could be offered at still lower prices, benefitingthe user community in whole. The recent losses suffered by SCO group in its lawsuits againstIBM and Novell, have vitalized open source software. At least the corporations using Linuxoperating systems are more protected from useless law suits.

One idea put forward by author needs further discussions. He recommends that USPTOshould grant patents to those software which results from creative genius. I think it is difficult andcould be very subjective depending on the qualifications of who is making the judgment. Thusqualifications needed have to be highly distinguished for making such intellectual decisions aboutusage of creative genius. I wonder if such qualified people will work for USPTO since they will beable to do better elsewhere.

The author also recommends that USPTO seek help from IBM to build the prior artdatabase. The neutrality of this database needs to be maintained specially it will be build by IBMwho as most prolific patent filer has its own vested interests. The USPTO needs to make surethat this database remains impartial, easily accessible and the workings of this database areopen for public scrutiny.

I liked the idea about third party review and input in deciding software patents. My mainconcern is how the third party will be defined and designated. If the traditional software housesare to be such third parties then there has to be means to expose their recommendationmechanisms and thinking methods to the public. My suggestion will be to pool voluntarydonations from open source software uses to fund and recruit the third party to keep itindependent. Another workable idea was to expose the source code by patent filers. In my mind itis technically feasible that the source code and compile code could be different and will be difficultto confirm that the software running on a computer came from the same claimed source code.USPTO will again need best minds to make this check.

Some of the recommendations will be contested by traditional software companies. Therecommendation to shorten patent life is one of them. Companies want to extend the life of patents as much as they could. I foresee intense lobbying attempts by these companies to thwartany attempts to reduce software patent life.

In general, I feel the author recommends very practical means to strengthen open sourcemovement. As a daily user of open source software I am directly touched by this article and Ihope that the recommended steps are implemented. The implementation of author’s ideasrequires sustain campaigns by open source industry and it could be a while before any changesin law and USPTO patent acceptance methods are made. The idea that “free and open sourcesoftware industry needs to protected and sustained” has to get widespread so that the requiredlegal changes are triggered.