Patent Monopolies Threaten Open Source Innovation

Imagine a Monopoly board game where properties are replaced by IT manufacturers and patents replace the houses and hotels. The name of this concept game would be Developers’ Monopoly and the aim is to produce an innovative product with each tour of the board to collect your money when you pass “Go”.

The game has been proceeding for some time and many of the properties are well-developed. With each throw of the dice you hope to land on a relatively safe square, even if this means trying your luck with a Chance card. The alternative of landing on a competitor’s heavily-loaded square could result in a hefty patent charge, a trip to jail, or possibly “game over”.

Earlier this year, in the Microsoft v Salesforce.com litigation, Salesforce threw in its own patent infringement suit as kind of “Get Out of Jail Free” card. It may not have freed the company from any infringement payments but probably reduced the penalty. This is pure speculation because the actual settlement was not disclosed, but serves to illustrate what sometimes happens in these cases.

Where does open source fit in?

The worrying side of the Developers’ Monopoly game is that open source is a relatively cash-free business, but patents are indiscriminate when it comes to how much money a violation may cost the infringer.

If the patent trolls, those who guard the interests of the multinationals that have filed patents, turn their attentions to the open source community, it could have untold effects on innovation.

In the US, manufacturers can patent software routines – unlike in Europe where they can only hold the copyright for entire software packages. For example, Apple actually has patents on the finger pinching routines that expand and contract images in the iOS operating system for its mobile devices. Any software that uses this process, even though the code to achieve the effect may differ, is liable to pay Apple for the privilege.

There have been several attempts in the US Congress to change the patents system, mainly because the patents office is underfunded and besieged with applications. So far, nothing has changed and the patent disputes continue to flare up.

The pettiness of a large number of patents causes open source software developers to ignore them, so that their latest innovation can be completed. It is highly likely that many open source packages infringe on one or more patents. As open source becomes more of a challenge to proprietary software, the chances increase that the commercial ISVs will start to pay more attention.

A patent holder could at least make life very difficult for the authors of open source software, because few can track their users and lack the “Get Out of Jail Free” bargaining cards of their own patents. And the nature of open source licences mean that the source code is freely available for examination.

A sniper’s war

If there is a battle looming, it is currently a sniper’s war with occasional volleys being fired. The signs are that patent holders are getting more litigious as the likelihood of being sued themselves for some petty infringement sends the software development process into a downward spiral of despondency.

While a patent is under dispute it can stop the further development and circulation of an otherwise innovative work. All we can do is hope that some sense is injected into the US system before everything grinds to a halt, deadlocked in legal red tape.