Fixing Patents, Open-Source Style

The U.S. Patent Office has a big problem with how it grants software patents. And open-source developers are ready to help it out

By Bryan Sims

During the American Revolution, Patrick Henry said, "Give me liberty or give me death." In midst of its own revolution, the open-source software community might say something along the lines of, "Give me innovation or give me death."

The software developers and users who make up the open-source software community have waged a war of words against software patents. Their main argument is that software shouldn't be patented because it stifles innovation.

What's more, they say, it exacerbates what has been dubbed the U.S. patent predicament. This predicament arises out of a patent examination process that was put in place years before software was even a concept, and therefore, was not created to protect software. It's like playing basketball by the rules of soccer.


Here's why: The basis of any patent being granted is that the invention is new. In order to figure out if you have a new invention, you must be able to search for "prior art," that is, proof that a particular technology for which a patent is sought is already in use. In the case of software patents, the U.S. Patent & Trademark Office has never had the ability to sufficiently search for prior art. As a result, the PTO has granted many software patents that should not have been granted at all, or are far too broad.

Now, two recent events driven by the growing power of the open-source movement could change this. Earlier this year, the PTO announced an initiative to work with the open-source community to improve the application-examination process by potentially incorporating some methods that open-source developers use to vet their software.

This announcement was preceded by the launch of the Open Innovation Network (OIN). Funded by some of the software industry's biggest names and most extensive patent holders, OIN's mission is to promote Linux, an open-source operating system, and spur innovation by acquiring patents and offering them royalty-free to participating software developers.


Based on my involvement the last six years in helping build Red Hat (RHAT) into the largest open-source software company and now, helping others build their own slice of the open source pie, I am thrilled by these developments. And based on my experience with the open-source development process, the PTO and its examiners will immensely benefit from consulting with the open-source community to solve its patent predicament. The fact that the PTO is responding to criticism from the open-source community is a huge win for all companies -- big and small.

The open-source advocates want to promote their cause and actually improve the patent-examination process by sharing the methods they use to search for prior art. They believe that if the PTO is going to grant software patents -- and most in the community believe it should not -- then the PTO should at least improve its quest for prior art and thereby increase the quality of the patents it grants. The goal is to narrow the field of use for which the patents can be claimed. Competition should be based on the ability to innovate and make useful software -- not the ability to file and prosecute a patent application.

That said, reducing the number of U.S. software patents granted only solves the patent predicament for the future. It doesn't address the second and equally important need: narrowing the claims of already-issued software patents. Litigation will continue to increase until these patents expire or another solution is created.


What the PTO needs to do is to improve and expand the patent reexamination process (which reviews and sometimes narrows a patent's claims). Certain patent holders may strongly resist this. However, it's essential that the PTO and the software community come up with a cost-effective and efficient method of dealing with the broad scope of existing software patents.

And finally, what's in this for the open-source community? That answer is simple: everything. With 80% to 90% of the Fortune 1000 companies using open-source software, it's here to stay. However, an innovation boom in software development -- freed from the risks of costly patent-infringement defense -- could make open-source code the rule, rather than the exception among U.S. businesses.

The sharing, customization, and improvements in software that would result would benefit businesses of every type and size. More important, it would help the U.S. maintain its lead in software development -- something that we must do in an increasingly competitive global economy.

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