Patent (p)Ending

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.