Software Patents and Open Source

It is amazing what daily meetings can do for productivity. There is a direct correlation between my blogging time and my additional meetings, I fear. But, I've been saving a backlog of interesting tidbits worth some commentary.

For instance, the latest one involves one of the open source heroes - well, he's a champion of sorts, if you consider the most radical proponent for overhauling our beliefs about intellectual property to be a hero. Many do. But RMS is usually a bit more extreme and radical than our global communities are able to handle. Take for instance this article, and his stance on OSDL's work on improving the (software) patent system. Part of RMS's assertion is that software ideas should not be protected at all - they should be freely shared. I'm not convinced that assertion is ideal for promoting small companies and new developments in a larger macro-economic view, although I also view the patent protection system as being unable to keep up with the times as it stands.

OSDL's effort is currently centered around improving the screening for patents that get approved. A logical step for improvement when an in depth analysis of many existing software patents can easily create debates about whether those patents had been previously implemented before and were thus not novel (the two basic premises for a good patent is that it is novel and implementable). Today, the US Patent Office only looks at a small set of sources, one being their own issued patents, for determining if something is novel. OSDL is asserting that Open Source has allowed many people to innovate without filing patents, and that source of innovation should be considered when examining the novelty of a patent. All in all, a reasonable goal, I believe.

I also believe the more fundamental question of whether the USPTO (or other patent systems world wide) should allow patents on software is still debateable. But the real value there has to be compared to the USPTO's original mission as defined in the Constitution, which (from the USPTO site) says:

The Constitution of the United States gives Congress the power to enact laws relating to patents, in Article I, section 8, which reads “Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

So, do software patents promote the progress of science and the useful arts? Or do they stifle innovation?

I think the jury is still out on that one.