Why Patents Are A Bad Thing For Open Source Technology
In response to some great questions we are getting over at our Telegram, this article takes a look at patents in the context of both open source and software.
We undertook a lot of research into patents and the patenting process, the pros and pitfalls, etc as part of our early R&D. The following are the key points we discovered, along with our impressions of their application and benefits vs. drawbacks.
By way of a disclaimer, although we are not legal experts (and do not pretend to offer legal advice) it is worth noting that software patents/IP are a different kettle of fish to a regular “invention”, whereby the mechanical parts and their interaction and output are a little easier to quantify.
From that perspective, our overall view is patents are obstructive for software innovation, but can possibly be useful in some cases to attempt to avoid infringement suits from a company’s competitors.
But are they worth the money or time that would need to be diverted from a company’s start-up budget? The answer is almost certainly “no”.
To begin with, in most countries the code used to write the software comes under automatic copyright laws, meaning a developer or company already owns the copyright on the code by default (no expensive patent needing to be filed). The copyright lasts for the lifetime of the author plus 50 years.
So in many instances, a company can get on with deploying its software without fear or infringement of the “expression” of their idea, if not the underlying tech. So that is a good start as regards understanding the overarching legal framework.
Then the issue any developer faces as regards being granted a patent is one of never-ending “definitions”: a patent is granted for an invention, which may be described, in general, as a “solution to a technical problem”.
To further confuse, there is no international definition of “invention”, and indeed, each national law would give you a different answer to the question as to which subject matter falls under the term “patentable invention”. In many countries, inventions are required to have a technical character, or to “provide a solution using laws of nature”.
This means that mere economic theories, methods of doing business, mathematical methods or computer programs as such are not patentable inventions per se. Certainly not in the EU. Maybe in the US. It all depends.
Worse, with “patent trolls” gaming the patent industry, and around 97% of all patents never recouping the cost of filing them, it makes many developers and start-ups wonder if it is even worth it.
Not only do software patents not encourage software developers to innovate, even the threat of software patent infringement might well discourage some developers — who recognise the liability they incur with each line of code — from entering the market.
No question, patent trolls, and companies like Microsoft, actively use patents to discourage competition, meaning software patents in practice are now not only of generally poor quality, they are totally opposed to their original reason for existence. One US lawmaker commented:
“The problem is that we’re granting far too many patents, tying up vast swathes of industry in litigation and negotiation rather than innovation … In the thriving digital sector, patents don’t work at all, and more patents are likely to cause more litigation rather than more innovation …”
Regardless, it is good to be aware of what patents may or may not provide protection for (and from) as regards your “invention”, or from charges of infringing someone else’s invention.
With this in mind, as part of our R&D we did a detailed patent search that put the “narrative” of what we were aiming to achieve in the context of overlapping patents and IP. (See chart below.)
And what about open source?
Fundamentally, open source software and patents are incompatible.
The basis of the open source software development model is the sharing of source code and the right to use other people’s code in one’s own work. If that code infringes on a patent, distribution and use is not allowed without permission from the patent holder. In some cases, a developer can replace an infringing program by an independently created implementation with similar functionality, but not always.
This is why patents are not popular in the open source community, with the supporters of the Free Software Foundation in particular pursuing a very active lobby against software patents — a view we at Decentr supports to the betterment of the overall developer community.
Feel free to get in touch with me for more details about Decentr, or with any questions or suggestions you might have, via the contact form on our website.
