July 20, 2004

Surviving in a world full of software patents

Author: Chris Spencer

To promote freedom in the marketplace open source developers need to start patenting their inventions.We have several reasons why patenting is now a requirement of last resort:
  1. Closed source companies are actively seeking to attack open source through patents.
  2. The cost of defending against a patent is enough break the bank of even the largest open source projects.
  3. Copyright is easily circumvented by creative programming.
  4. It is the only logical way to counterattack.

Red Hat has in the past taken criticism for holding a defensive patent portfolio. Likewise, IBM has been criticized for having the largest patent portfolio in the world. At the heart of these criticisms is a natural skepticism about patenting, particularly software patenting. I agree completely with the pundits who say patents are bad for the market but at this point I think Red Hat is completely correct in their defensive patents policy.

Patents are the law. They are given away like candy to companies seeking mini-monopolies on ideas. Even mini-monopolies are bound to abuse their power by filing groundless lawsuits for the sake of the ever important PROFIT motive.

If you are an open source developer you are probably less motivated by profit (though certainly you want to be fed), and more motivated by the hope of making the world a better place through cooperation. This is a noble position, but don't be played for a fool. The lack of a patent on your work gives free rein to people with PROFIT on their minds who want to steal your inventions from you and use them for their own gain instead of the gain of all. The next thing you know, you will be facing patents based on something that incorporates ideas that you pioneered.

While Richard Stallman is busy saying there should be no software patents, we need a license that insures that the freedoms of the GPL can be preserved while maintaining patents. It can be done -- and it needs to happen soon.

This is a call for dialog. I don't presume that I am the one who should create the license. I am also not answering the question of who needs to pay for the patenting. I would suggest that it is best done by a consortium -- preferably led by a vendor-neutral group such as the OSDL -- that creates a fund and a committee to review patent fund requests. Let's talk about it, though.

Should we really continue without an aggressive patent policy and portfolio to protect our freedoms?

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