Is Patenting Open Source Software The New Normal?

In an interesting new Outercurve Foundation blog post from Penn State professor Clark Asay, he discusses "the tactic of patenting open source software to guard against patent trolls and the weaponization of corporate patent portfolios...gaining momentum in the FOSS community." Depending on who you talk to, the practice of patenting open source creations is either poison or an obvious requirement in a competitive world. There is a lot of gray area in this space, though, ranging from copyleft protections to other strategies that project protectors can pursue.

From potential issues with licenses to controlling the future development of a particular project, there are many risks to consider before deciding on whether to patent open source software.  Of course, Google, Red Hat and many respected contributors to open source have been pursuing patents on open source software in recent times.

According to Asay's post:

"[A] recent proposal advocating adoption of a 'Defensive Patent License' has urged open innovation communities to more diligently obtain patents for defensive purposes. Some companies heavily involved in FOSS seem to be following this tactic. Google’s acquisition of Motorola Mobility, for instance, was largely viewed as a quick means by which to obtain significant numbers of patents to help protect the Android ecosystem. Red Hat has also begun to build up a significant defensive patent portfolio."

"One of the primary advantages of FOSS development is its decentralized nature. While FOSS communities often have hierarchies and power players, the general development model allows diverse contributors to collectively and efficiently create software. As such, in many cases it may be difficult to determine who the inventor of any given inventive concept actually is. And patents require inventors to be specified. In some cases, especially in projects where one contributor is the primary contributor to the project, this may not be an issue. But in highly collaborative projects, where each contributor is adding some incremental piece to a larger inventive concept, it almost certainly is."

Aside from these issues of practicality, of course, some members of the FOSS community simply object to the whole patent system and see open source as an oasis that exists separately from it. Even for true open source purists, though, there are still options for protecting open source creations, especially when it comes to licensing protections. 

Copyleft is the famous practice of using copyright law to give the right to distribute copies and modified versions of an open source creation while requiring that the same rights are preserved in any modified versions of the creation. The idea behind copyleft was described in Richard Stallman's GNU Manifesto in 1983.

We've also covered the Unlicense here.  As Joe Brockmeier noted in that post:

"Some developers are embracing the Unlicense, a license that 'disclaims' copyright interest in a piece of code altogether. If the BSD, MIT, or WTFPL aren't Free enough for you, the Unlicense should fit the bill. The Unlicense is a very short (four paragraphs, not counting a link back to the site for the original text) license that states the software is released into the public domain, and that anyone is free to use it for any purpose...."

The Unlicense may seem similar to tossing code out into the wild with no license, but it actually introduces a way to track the "chain of custody" of a given open source software project.

Asay's post on the topic of open source patents is worth reading. Among other proposals he makes, he speculates on whether disperse open source communities could band together behind patents, with clear messaging about who the original project "inventors" are. In any case, patents on open source software are here to stay, as valuable open source creations increasingly become strategic for profit-driven companies to align behind.

For much more on the legal aspects of protecting an open source project, see our post here.