Open-source developers need defense in patent wars

CEO of Barracuda Networks explains how the US patent system is broken and what open source developers can do to protect software innovation.

The U.S. patent and legal system has turned into a battlefield where companies and technology developers can be attacked. Open-source and free software developers have historically ignored this secondary battlefield, focusing instead on the primary battlefield of development and proliferation of their project. This omission leaves open-source projects and individual developers vulnerable to patent infringement lawsuits. By creating its own defensive patent portfolio as commercial companies do, the open-source community can arm itself for this battle.

The U.S. patent system is fundamentally outdated. The twenty-year patent protection rule, while potentially appropriate in an industry such as biotech, is not appropriate for the software industry. The patent system was created to strike a balance in protecting inventors so they could profit from their hard work and ultimately allow the invention to fall into the hands of society so that all could benefit and society could progress. With the current speed of information transmission and technology development in the software industry, it no longer takes twenty years for inventors to profit from their inventions. We are out of balance when it comes to software patents -- the time frame is too long.

The patent system in the United States should be reformed and software patents should be eliminated or restricted, as several other nations have done. The potential impact that software patents could have on the productivity of the open-source community and broader software industry is dire. The U.S. patent office issues nearly one hundred thousand patents annually, and complex computer programs can contain thousands of patentable algorithms and techniques. This means proper due diligence would require software developers to investigate an unwieldy number of patents every time they write a few lines of code. It is simply not practical.

Unfortunately patent reform, as with all changes involving government, will be a lengthy process and will require compromise. In the interim, the development of prior art in the open-source community is a tremendously powerful tool, and it is crucial that source code repositories with comments and details be maintained. However, although such prior art can be successfully used to invalidate patents, it still takes money to mount the legal defense. In the commercial software environment the only really good defense against patents is to develop your own patent portfolio, as it is the threat of mutual self destruction that keeps most patent lawsuits at bay.

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