My writings about open source and software patents have earned me a special place in the hearts and minds of those who harbor irrational hatred of software patents. But I am here to tell you that open source is not all bad and, in fact, should be embraced. Open source, however, is hardly something new to the patent community. Perhaps it is better to say that where open source software is heading is nothing new, and it will come as a shock to those who hate patents, but patents will be completely necessary in order for the open source community to continue to advance and live up to its full potential.
Of course, many in the open source community simply do not want patents and would rather they go away altogether. They choose to believe that “innovation” is synonymous with “independent creation,” which is just straight up intellectually dishonest. In order to innovate one must create a new device or a new process. Simply stated, copying the work of others is not innovative; and neither is ignoring what others have done and independently creating something with careless disregard of whether it is new or used.
Red Hat, the well known open source company, has no love for software patents. In fact, they really would prefer that software patents become extinct; abolished altogether. They are, however, sophisticated in the world of business and understand that there is no mileage in taking a self defeating position based on ideology. In fact, Red Hat’s patent policy explains:
[W]e are forced to live in the world as it is, and that world currently permits software patents. A relatively small number of very large companies have amassed large numbers of software patents. We believe such massive software patent portfolios are ripe for misuse because of the questionable nature of many software patents generally and because of the high cost of patent litigation.
One defense against such misuse is to develop a corresponding portfolio of software patents for defensive purposes. Many software companies, both open source and proprietary, pursue this strategy. In the interests of our company and in an attempt to protect and promote the open source community, Red Hat has elected to adopt this same stance. We do so reluctantly because of the perceived inconsistency with our stance against software patents; however, prudence dictates this position.
For the life of me I don’t understand why any business would knowingly open and pursue a path that is likely not to succeed. Likewise, I don’t understand why governments choose to forward policies that have never worked, such as a tax policy that raises rates during a recession, increased regulation that makes doing business more expensive and onerous mandates on businesses and state governments that work to squeeze growth out of the economy. For crying out loud, the economy is doing everything it can to grow and release the tidal wave of economic activity that is practically begging to be unleashed! For me it makes sense to pick policies and engage in activities that have succeeded in the past, not those that have never succeed. It also makes sense to model business, and government, off of similar enterprises that have succeed.
I almost can’t believe that it is a revelation to pattern after success. For the sake of Pete, why would you want to model yourself off a failure? Those self help books at the bookstore have titles like The 7 Habits of Highly Effective People, 11 Ways Highly Successful People Approach Life and Work, How Successful People Win or 100 Simple Secrets of Successful People. No one ever seems to write about following the lessons of unsuccessful people or modeling yourself or your business after failures. The closest title I could find, in fact, was How to Become a Total Failure: The Ten Rules of Unsuccessful People, which seems like a cautionary tale about failure and attempts to show unsuccessful people what is holding them back. So why would anyone celebrate failure or aspire to be unsuccessful? Why would governments pursue policies that have always failed? Why would anyone seek to make it harder to succeed in business simply based on their own ideology? I don’t know.
The reality is investors love patents, having a patent portfolio makes it more likely you will NOT get sued for patent infringement, successful companies have patents and perhaps the largest, most successful anti-patent company states on its website that it is silly to ignore the business reality that software patents can and do exist, whatever their preference of ideological views might suggest.
The real trouble with the so-called debate over software patents is that it really isn’t a debate. Software patents do exist. Software is patent eligible. The United States Supreme Court had an opportunity in Bilski v. Kappos to say software is not patentable and didn’t take it. In fact, 8 out of the 9 Justices indicated that software is patentable subject matter. Only Justice Scalia, who would prefer that life, law and technology be frozen in 1789 didn’t say or suggest that software is patent eligible. For more on Bilski v. Kappos see our continuing coverage of Bilski v. Kappos.
The other problem with the so-called debate is that the vitriolic back and forth mires those debating and entrenches hearts. Lost is the opportunity to focus on what open source is very good at. Open source is in some situations the perfect way to innovate, but only so long as those who are partaking in the endeavor are actually trying to innovate. So many in the open source community are free riders who do not read patents let alone look for them. They do not attempt to inform themselves about what others have done, and without such knowledge innovating is left to pure chance. You simply cannot innovate if you copy what has already been done. Innovation requires a new and nonobvious device, process or compound. Independent creation is not innovation, it is just independent creation, period!
What makes open source perfect for innovation, when everyone buys into the effort to actually innovate (i.e., create something new and nonobvious) is that it is cooperative. Open source is perfect for a joint venture scenario, whether between Academia and the private sector or between and among companies in the private sector who seek to raise the industry to a certain level and perhaps tackle seemingly insurmountable technical problems. Insurmountable technical impediments are unlikely to be overcome if they require basic scientific research, which is where Academia and Bayh Dole come in, but there is no reason why private sector companies couldn’t and shouldn’t bond together through joint ventures.
Open source joint innovative ventures can pool the technologies and exclusive rights of the members and allow those participating to engage in acts that would otherwise be infringing. This is nothing more than a collaborative patent pool, and something that many open source efforts are increasingly tending toward. The sticking point for many open source efforts, and why they fail or lead to the creation of ever more open source regimes, is that they ignore human nature. Open source should be about innovation to a certain level or standard. Then let the players build off that base in a proprietary way. In my opinion open source should be base building or standard setting.
There is an important role that open source could play moving forward, and that role is to set the foundation of innovation and technology, which is no small task in terms of importance and seems to perfectly fit with open sources strengths. But too many open source regimes are like the Borg of Star Trek fame, or a little like the Mafia. Once you are a member you simply cannot get out. With too many open source regimes once you join and take then anything that you produce must be free to be taken by other members of the consortium. It really is akin to a patent deal with the devil, and ignores human tendencies. Ingrained in almost everyone is a feeling they should be able to profit from their own work, and most would feel injured if they worked and others were allowed to take without some kind of in kind return.
This type of in kind return is at its very core what is behind patent licensing. Those who hate patents would rather you not know that overwhelmingly patent rights are not enforced, but rather they are traded among and between market players. I have this and need that, well you have that and need this. A deal is made. So patents simply don’t harm innovation. The failure to engage in appropriate business practices impedes innovation. Patents are merely an exclusive right that forces you to either stay away, do a deal with the party owning the patent or invent around the patent. The inventing around is what fosters innovation and is, in fact, what happens every day. So those who think patents impede innovation are either clueless or trying to sell you snake oil.
One of the reasons that open source should be and can be the future of innovation, particularly the type of paradigm shifting innovation that we want to encourage, is because of the trouble associated with Rambus’ standard setting saga. The Rambus saga aptly demonstrates the difficulties that lie in front of industry leaders who meet and attempt to adopt a platform to build upon. The Rambus difficulties are no so famous (or infamous) that I wonder whether any industry giant or technology leader would ever do what Rambus did, which seems akin to having strolled into the lions den without as much as a sword in hand. This is truly unfortunate given that we live in an increasingly complex and technologically advanced society, so interoperability would not only just be nice, but increasingly it is essential. How much productivity, and sanity for that matter, is lost as a result of simple lack of compatibility? I suspect the lost productivity (and sanity) are far greater than anyone would dare imagine.
The inability for innovations to work across a common platform really does stall innovation in many respects. Not because science and technology cannot advance but because consumers buy into one particular platform and then have a vested interest to continue on that path, accepting inferior products over time because of being (or feeling) locked in. That is something that I have struggled with on the Microsoft front, and I am about ready to go all Apple everything. It is a big decision though because of investments in hardware and software, and the lost opportunity costs associated with the investment in time during a switch over. Buying into Apple also is buying into something that is not very open, but at least it works, which is increasingly something that Microsoft does not do for me. In fact, Microsoft products are a lot like Star Trek movies; only about every other one seems worthwhile.
I really have no wrath against open source developers. My wrath, if any, is directed toward ignorance. Open source developers are being told a bunch of lies and accept them as true because it fits into their world view. Many also settle for not innovating and simply copying, or taking whatever they can get their hands on.
Open source can and should play a vibrant role, and works best as a patent pool where everyone cooperates and shares innovations. But not looking to innovate and pretending that copying others is innovative is ridiculous. That just ensures the same ideas and innovations have longer shelf life than they should, which is something that has historically been a criticism of Microsoft. Oh the irony!- - - - - - - - - -
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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles, Open Source, Patents, Software
About the Author
Gene Quinn is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.