Technology collaboration and its expression as open source software can build long-term immunity against the practices of a global patent system running amok.

India and other developing countries are under the gun to come into full conformance with the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) this year. The carrot for compliance is the promise of investment protection and wealth creation. The stick is severe trade sanctions for failure to comply. In the rush to meet WTO deadlines, patent protection is being extended with little deliberation into controversial IP areas such as pharmaceuticals, business practices and software. Each area is a mine field for developing economies.

The software patent system is especially problematic and can be used to suffocate a fledgling software industry. In the West, particularly in the US, the software patent system is hopelessly broken. Instead of promoting the small inventor, it is being misused to quash those who don’t have resources to defend themselves against litigation. In the European Union, on the other hand, reason has not entirely disappeared and the notion that software generally and unequivocally meets the patentability criteria of TRIPS is a hotly debated issue. In the developing world, it is ironic that the level of patent protection being advocated often exceeds the minimum explicit requirements of TRIPS.

Dangerous Ambiguity

The goal of all patents is to reward innovation and constrain, for a period of time, competition. This may work well for tangible inventions, but abstract methods and articulation of these methods in software is regarded by many as inappropriate for such protection. Abstract methods are especially dangerous because they tend to be ambiguous and overly general, especially when concrete implementations in code are not required for obtaining a patent. Abstract methods and their expressions are also subject to rampant litigation abuse.

The infinite variations possible when encoding ideas into programs makes the application of any software patent regime inherently ambiguous. Software is both a form of mathematics as well as a written representation of knowledge and processes. Mathematics is universally excluded from patent protection because of the notion that pure knowledge is discovered, not invented, and it must remain freely available to all. Therefore, software as mathematical notation generally has been considered non-patentable. Even as a written expression of business processes or other methods or as a way to interact with and operate hardware, software had little chance, until recently, to be patented. However, in the US since 1998, business processes and associated software (if any) have been able to be patented. Silly patents have been awarded for trivial business processes, such as a method to cut hair with both hands. When expressing a business process, software such as Amazon’s 1-click Web-based customer ordering system illustrates the lack of novelty or inventiveness of many software patents.

Driving Up Costs

Beyond the imposition of license fees, the introduction of software patents greatly increases the cost of doing business because now legal services must be purchased to evaluate potential patent infringement risks as well as to provide a buffer against the eventuality of being sued by a potentially unknown patent holder. In the murky business of patenting abstractions, there is never assurance that someone else’s patent cannot be reinterpreted to cover your own invention. Furthermore, unlike copyright protection, software patents permit no clean room defense against infringement. Even completely unrelated software implementations may be assailed by a predatory patent.

In addition to increased costs for everyone, there is little tangible financial benefit for most patent holders. Especially in the developing world, the golden carrot promised by protection of Intellectual Property through patents is more myth than reality. When all is said and done, software patents may foster only speculation fueled by local hubris and dreams of wealth. Unfortunately, no combination of brilliance and machismo by late starters can match the tricks that existing patent holders can use to stymie upstarts.

Small Players Never Win

The large patent players of the advanced information economies learned long ago how to game the system. For every drop-dead idea that a start-up software company patents, there exist a thousand trivial patents which can be invoked to destroy its value when used to build practical systems. Marketable products necessarily depend upon many other ideas, some of which may be patented by competing vendors. Typically, in this environment, software patents become mere trading pieces in a larger scheme of Intellectual Property cross-licensing agreements. The benefit of most software patents is not the generation of direct revenue but the ability to employ patents strategically for global positioning. Unfortunately, economies with a pre-existing wealth of software patents enjoy a potentially permanent advantage since patents already cover much basic innovation, both trivial and non-trivial, that can be expressed in software. Software patents remain jewels for the rich but become colored glass for less mature economies.

Don’t Compound the Problem

Full adoption of TRIPS by the WTO membership is inevitable. But there is no need to exceed the regulation’s requirements. Just as importantly, the mistakes of the current system must not be repeated in new ways in developing economies. TRIPS compliance simply does not require software patents, especially if software is construed by the WTO member to fail to meet unambiguously the full criteria of patentability.

On a global commerce level, many negative effects of TRIPS can be countered through emphasis of alternative collaborative IP models like open source software that offer less inherent advantage to established or predatory patent holders. Contribution to the growth of open source software can also help build a strong repertoire of prior art to act as protection against poorly formulated or unjustified patents.

For many developing countries, when you are not among the preselected winners, the best option is sometimes simply to change the game.

February is early spring in Napa Valley, California. It’s the time of year when the whole valley blossoms in a rich carpet of golden mustard flowers. Even in the world of open source software, the hint of spring brings new growth and opportunities. Hope rides the winds of change from winter’s gloom over the growing imbalance of copyrights, patents and other forms of property claims in the Information Age.

If patents are needles in a haystack, then IBM has removed only 500 of the tens of thousands of needles that OSS developers might sit on.

Innovation and freedom are under siege as never before by stubborn ideas about property and ownership in a digital era when the very concepts of property are changing faster than laws and regulations can capture. Until recently, property and wealth were based on values of scarcity and exclusive use. This foundation was a good fit in a physical world where our instincts are tuned to the protection of territory. But in the world of knowledge, misguided instincts quickly degenerate into pride and arrogance. Growth of knowledge demands freedom and sharing. Intellectual values of openness and collaboration in an age of technology serve to multiply our shared understanding and to amplify our wealth.

It is still early in the game for understanding how best to protect the value of open source software. This is a time of endings as well as beginnings. Europe has buried, for now, a long simmering, back-room attempt to authorize US-style software patents. The IETF has rejected a vendor’s proprietary solution to the urgent problem of spam. Marking new beginnings, Sun is planting the seeds of an open source Solaris complete with patent-use rights in its recently OSI-approved license (CDDL). Novell has committed its patent portfolio to the protection of the key open source products it shepherds and IBM is contributing 500 patents to the open source community in hopes its gift will blossom into a “patent commons” for developers and users alike.

All companies with an interest in open source should be encouraged to contribute portions of their patent portfolios to a common trust. This will help diffuse some of the anxiety inhibiting growth of the OSS market. If patents are needles in a haystack, then IBM has removed only 500 of the tens of thousands of needles that OSS developers might sit on. However, most patent holders won’t give away their collection of needles because the very system of patenting Intellectual Property (IP) encourages cut-throat competition and hoarding. Nonetheless, as the details of IBM’s patent contribution reveal, an innovative strategy of dual licensing can permit the patent holder to charge for and protect proprietary use while allowing the open source community free access and protection.

But much more must be done to bring into full bloom the benefits of open source and technology collaboration. In the US patent system, if an idea is judged to be novel, useful and non-obvious, the patent office awards the inventor an exclusive right to the idea for 20 years. Unfortunately, it has become painfully clear that such criteria are impossible to apply in the rapidly evolving, highly abstract ecology of software. Bad patents proliferate and cannot be cost-effectively turned around.

Software and business process patents can destroy the entire software industry, whether proprietary or open source. Patents chill software innovation, drive up costs, establish monopolies prematurely and unfairly, are too easy to get, and are too expensive to fight. If the total elimination of software and business process patents cannot be achieved, at least constraints to patenting must be promoted. Near term improvements include shorter patent lifetimes, adequate research on prior art, and a sharp increase in the threshold for getting patents. Evolution of OSS licensing can also help tune IP protection for open source. For example, the next GPL (Version 3) may use copyright to help defend against potential patent attacks.

Springtime is the time for inspiration. Through inspiration and dedication, all OSS stake-holders must work together to enhance the code of law to better protect the code of software. Working together, we can build practical solutions that protect and enhance the values inherent in open source. These values provide the foundation for blossoming of knowledge in the springtime of the digital information era.