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Patent Law Ruling Threatens FOSS
savio13 writes "The EFF has asked the US Supreme Court to overturn a patent law ruling that could pose a serious threat to Free and Open Source Software projects. A recent Federal Circuit Court of Appeals decision required that even the most obvious incremental advances can be patented unless it can be proved that someone else suggested it prior to the patent being filed. As such, many 'bad patents' are being used as roadblocks for legitimate innovators, especially those working for FOSS projects (who have better things to do then search through thousands of technical papers for some mention of the obvious). The full brief is available online in PDF format."
If enough people are using your free Open Source tool, then yes you might get sued for infringement. You might not be making money, but in the eyes of the patent holder you are costing them money.
"Some days you just can't get rid of a bomb."
Disclaimer: I am a patent engineer. I write software patents for a living.
Let's think about this for a minute. There are two common arguments for doing away with software patents: 1) It's just math (i.e., algorithms), and 2) software is already covered by copyright.
Addressing 1) first, this argument could be taken to its natural conclusion by suggesting that *nothing* should be patented, since *everything* is simply a combination of laws of nature. But if we take a step back, we realize that what people are patenting is novel *uses* for laws of nature. If I'm the first person to design voice recognition software, why would that be any less patentable than a new kind of rubber? The point (theoretically, at least) is to reward hard work and innovation. Why should software engineers be any less entitled to that kind of reward?
Some will respond to the previous points with 2). BUT, and this is an important point, copyright only covers the specific implementation or manifestation of the invention. So, if I were to copyright an insanely powerful peer-to-peer model, you would only have to use a different programming language, change the system architecture a little bit, throw a different GUI on it, and away you go. You may be copying my ideas EXACTLY, but you've found a way around the copyright. So it's clear that copyright doesn't protect certain kinds of inventions to the extent that patents do.
Now, I'll be the first to acknowledge that the USPTO needs improvement. The examination process is flawed, and recent reform proposals have fallen far short of what's actually needed. But does that mean we should just do away with an entire class of patents? Of course not.
Support EFF. They do useful things.
...and why patents are so unjustifiably incompatible with software, see e.g. this paper, as well as a free book on the "mechanics" of the patent debates.
It was the courts (actually a specific Federal Circuit court) which decided, on their own, after years of ruling that software was not patentable, that all of a sudden it was. So asking the Supreme Court to rule otherwise isn't as unreasonable as you make it out to be.
Patents are granted in the United States "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". The ultimate purpose of the patent (and also the copyright) is not to ensure that the creator is rewarded for his effort, but to promote innovation. The temporary monopoly that a patent provides is just a means to an end. If patents are granted in such a way that they inhibit innovation, then this is defeating their purpose, even if they do ensure that the inventor is compensated for his work.
The purpose of patents is to encourage innovation, and it fails to do this in the case of software patents. Ergo, they should be abolished for software.
That's it. No other point needs to be made. The reason they fail to encourage innovation is because the "small guy" who invents a brilliant idea will be incapable of creating a piece of software that both incorporates his brilliant idea and also does not infringe on 100's of other patents held by large corporations. Hence, the small guy would have to cross-licence and thus his monopoly over his idea is effectively nullified.
All the other arguments against software patents are the objectionable features of them. e.g.
- They are largely for obvious inventions.
- Software is covered by copyright and trademark law and implementations are secret so it's not easy to copy software ideas, it could take several years to re-implement a patented idea in another way. i.e. software patents are largely unnecessary.
- Lots of computer inventions become obsolete far sooner than the patent period, so the period could be shorter without affecting a business' ability to profit from it.
- It's too difficult to parse the current patents that might affect a software package that you intend to implement, and thus innovation for small businesses and individuals is effectively curtailed.
SEOT.