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Minimizing the Patent Threat to Free and Open Source Software

Law Journal Article - Reaction Paper

Article Summary In this article the author talks how to minimize the legal threats faced by free and open source software. The author describes the history of free software movement, various legal challenges it faced, and practical means to overcome the legal challenges. The challenges faced by free and open source software are critical as its use is increasingly getting widespread. Traditionally the courts have struggled with the issue of software patentability, because software is similar to the un-patentable mathematical algorithms. With Diamond v. Diehr and Lotus Development Corp. v. Borland International, the courts started to favor software patentability and companies increasingly protected their software with patents. The worst example of software litigation has been SCO group, who had filed multitude of lawsuits against variety of corporations seeking licensing and trademark damages for using Unix software without SCOs permission. The Free software movement holds its roots in free Unix-like operating system Richard Stallman wrote in 1984, as he got frustrated when proprietary software which had began to replace the freely modifiable software on computer hardware of the day. The free software foundation (FSF) Stallman founded grants four freedoms to the user using free software. They are the freedoms to run a program for any purpose, to learn and modify how a program works, to redistribute copies of program, and to improve a program to benefit all. FSF created universal license to be used to keep software programs free. That license now called GNU General Public License (GPL) is in its version 3. The GPL version 2 emphasized copyleft in contrast to restrictive usual copyright protected intellectual material. In 2007, GPL version 3 was released. GPL makes the patent grant explicit and restricts cross licensing. If a company holds a patent and incorporates in GPL licensed software, then the patent automatically extends to all recipients. The new GPL version 3 license enhanced the free software protection. The Open Invention Network (OIN), an intellectual company, was created to pool patents against the threat of suits against Linux. OIN acquires patents through purchases and donations. Then in turn, OIN licenses the patents royalty free to companies who agree not to assert their patent rights against Linux software. Recently U.S. Patent and Trademark office (USPTO) started to work with developers to improve quality of software patents and possibly create automated database for open source software in assistance with IBM. The courts decisions to upheld software patents have chilling effect on software innovation. Companies can patent even obvious and clear ideas, thereby stopping others from using them to renovate further. Thus large numbers of building blocks have become legally inaccessible and programmers have to waste lot of resources and time to reinvent wheels just to use the forbidden components. Here the USPTOs practice of awarding twenty year long patents to companies who incurred low costs to create patents is unjust and undeserved. Since, software licensed under GPL is released in human readable form, free software is exposed to infringement claims and unjust use by companies who hide the open source code in their confidential propriety code. In software industry innovation is occurring at a breakneck speed. USPTO requires patent applications to be published in eighteen months after filing. And during this time-period, an entire generation of software could get cycled. The software could be obsolete even before patent is issued. This rapid evolution makes software developers vulnerable to the submarine patent. The open source software is

also able to create industry standards and create works which were deemed unfeasible by traditional software houses. The OINs cross pooling mechanism, searchable databases and GPL version 3 are defending free and open source software. OIN creates level playing field and levels the playing ground for the participants. Materials publishes in the searchable databases such as SourceForge and FreshMeat becomes prior art, and the listing creates statutory bar to patenting. Thus OIN and prior-art databases aid in conjunction with GPL preserve the integrity of open source mode. In addition to these methods, few more additional methods are purposed to protect and strengthen the open source movement. USPTO should employ qualified software engineers who understand software and how software is developed. Thus UPSPTO will be able to access software patent applications for non-obviousness as per 35 U.S.C. 103. The ordinary software programs, which can be developed easy, need not be patentable. The USPTO must provide patent examiners with searchable database so that examiners could evaluate the relevant prior art and screen applications for novelty. The scrutiny and disclosure requirements for software patents should be made stricter. When third party is allowed to weigh in before patent is issued, more bad patents will be screened out. If source code is also required to be disclosed then the subject matter during filing time will be revealed. Mandatory source code disclosure will satisfy best mode requirement of 35 U.S.C. 112. The publication time needs to be reduced to six months from eighteen months. The shorter time frame will provide better notice of the intellectual property that is being claimed and cut back on inadvertent infringement. The term for software patents need to be shortened to seven years so that number of filings is reduced and the overlap with other patents more than seven years since issuance will be avoided. Government also needs to subsidize software standards along the lines of internet so that proprietary software industry cannot get monopoly control over the direction of software industry. Opinion The modern business is impossible to run without the use of software. Traditionally businesses have relied on software from well established software houses such as IBM, Oracle, SAP, and Microsoft. These software vendors charge lots of money to license and use their software. Recent years have seen increased proliferation of free and open source software. Businesses get software for free and pay small fee to get support necessary to run the software. This has been a big boon and many companies like RedHat, Sugar CRM, are based on free software. During this time of recession and due to competition, corporations are adapting free software to save costs and to be competitive in the market. The open source software has also allowed cloud computing to blossom and become a major force in computing. Cloud computing allows both corporations and personal computer users, to access powerful computing resources through internet at utility like prices. The low prices offered by cloud computing vendors in part are due to their use of free open source software to provide service to cloud computing users. It is evident that open source software is playing a very crucial, money saving and productive role in todays economy. Hence the businesses need to watch for any legal action against open source software, to help open source movement in whatever means possible, and to avoid being caught in a situation where legal proceedings stop them from using the free and open source software. This article certainly helps to increase the understanding how patents infringement work in open source software. The author throws good amount of light on the history of both software patents and open source software. He discusses how open source is defending currently and brings in good arguments about how to strengthen open source software even further. Traditionally if a corporation wants to use open source software, it pays money to an open software provider for to provide support. The software provider uses some part of the

money paid to protect its customer from indemnity in case some entity files patent law suit on the software use. I think that the software provider buys indemnity insurance for its clients. If the open source movement is strengthened as per authors suggestions, then possible future damages due to indemnity will be reduced. Hence open source could be offered at still lower prices, benefiting the user community in whole. The recent losses suffered by SCO group in its lawsuits against IBM and Novell, have vitalized open source software. At least the corporations using Linux operating systems are more protected from useless law suits. One idea put forward by author needs further discussions. He recommends that USPTO should grant patents to those software which results from creative genius. I think it is difficult and could be very subjective depending on the qualifications of who is making the judgment. Thus qualifications needed have to be highly distinguished for making such intellectual decisions about usage of creative genius. I wonder if such qualified people will work for USPTO since they will be able to do better elsewhere. The author also recommends that USPTO seek help from IBM to build the prior art database. The neutrality of this database needs to be maintained specially it will be build by IBM who as most prolific patent filer has its own vested interests. The USPTO needs to make sure that this database remains impartial, easily accessible and the workings of this database are open for public scrutiny. I liked the idea about third party review and input in deciding software patents. My main concern is how the third party will be defined and designated. If the traditional software houses are to be such third parties then there has to be means to expose their recommendation mechanisms and thinking methods to the public. My suggestion will be to pool voluntary donations from open source software uses to fund and recruit the third party to keep it independent. Another workable idea was to expose the source code by patent filers. In my mind it is technically feasible that the source code and compile code could be different and will be difficult to confirm that the software running on a computer came from the same claimed source code. USPTO will again need best minds to make this check. Some of the recommendations will be contested by traditional software companies. The recommendation to shorten patent life is one of them. Companies want to extend the life of patents as much as they could. I foresee intense lobbying attempts by these companies to thwart any attempts to reduce software patent life. In general, I feel the author recommends very practical means to strengthen open source movement. As a daily user of open source software I am directly touched by this article and I hope that the recommended steps are implemented. The implementation of authors ideas requires sustain campaigns by open source industry and it could be a while before any changes in law and USPTO patent acceptance methods are made. The idea that free and open source software industry needs to protected and sustained has to get widespread so that the required legal changes are triggered.