Patent Law and Open Source Software

I thought that I would relay some information regarding the everyday legal dangers that open source software faces every day, by presenting a couple of really good articles from opensource.com.  The first one, from 2010, shows how rationality sometimes saves the day.

In Total Victory for Open Source Software,  Rob Tiller describes a lawsuit brought against Red Hat by two plaintiffs claiming patent infringement.  The article relates the details of the case a lot better that I can, but what it boils down to is certain interests trying to break the open source model.  The reason they want to do this is money, pure and simple.  And what makes this case so interesting is that the plaintifs' argument was so full of holes, that they resorted FUD, or fear, uncertainty, and doubt tactics. 

The plaintiffs jumped on the fact that the members of the jury had no knowledge of what open source software was, and immediately tried to paint Red Hat as some king of communist collective.  The exact terminology used to describe Red Hat's criticism of US patent law was that Red Hat has "a secret fondness for the writings of Karl Marx"!

Michael Tiemann, Red Hat's vice president of open source affairs, stepped in for the defense and calmly explained to the jury exactly what open source is.  He explained that open source is all about "voluntary collaboration, not involuntary expropriation".  Red Hat's argument carried the day, but the fight still goes on.

A continuation of this fight is detailed in Julie Samuels' article, Why the Patent System Doesn't Play Well With Software: If Eolas Went the Other Way.  In the article she talks about a recent victory over the Eolas patents.  These patents were established during the days of the early web and enabled viewing of embryos.  Now the people owning these patents claim that they cover "any mechanism used to embed an object in a web document".  This would have effectivly given these people ownership of the web, and the jury thankfully invalidated these patents.  Then Samuels goes on to make a very effective argument about why patents and software do not go together.

First of all, she shows that when the patent system was originally established, the 20 year protection period was needed for an inventer to develop an idea into something marketable.  That does not make sense with software.  Technology moves so quickly that this time investment just isn't needed anymore.  And how can someone build upon someone else's code if it is locked away for 20 years?

Then she goes on to show how software patents can harm new ideas and innovations.  How can a lone programmer developing the next Twitter in his home office operate after he is slapped with a patent suit?  All of these reasons come together to show that the US patent system is outdated and is in need of some serious reform.  And in the meantime, stay out of our code.