Do Patents Threaten Open Source and Innovation?

It is impossible to separate innovation from access to information, ideas and invention. But what happens when ownership of a broadly defined idea prevents its future use by a larger community of creators?

As Jim Moore at Harvard put it, "The patent process provides legal protection to inventors, so that when they take their ideas to companies for possible commercialization, the inventors are not cheated out of the intellectual assets they have created." True. Moore compares patents to home ownership. "The rights of a patent are analogous to the real estate title to a home or land. You have the exclusive rights to use your home or land -- within some limits (zoning, etc.)."

The problem, especially with technology patents, is that title often claimed by patent applicants includes a broad and vague description of its boundaries. To borrow Moore's analogy, they often describe the building vaguely AND fail to define the zoning. This is not by accident. Intellectual property rights are valuable, and there is a huge economic incentive to occupy as much "real estate" as possible, including land that does not yet exist. Securing pre-emptive ownership of land created in the future is a big part of patent strategies for many companies. This has turned patents -- an important shield for inventors -- into a profitable sword.

Software is an especially difficult area for intellectual property. And even more difficult now that open source approaches to collaboration and software development are proliferating, and accelerating software innovation globally. Complex software by definition addresses a wide range of concepts. It is no surprise that more and more software (developed in house in a proprietary way or as open source) is subject to claims of patent infringement, when more and more patents include very loosely described concepts. The result: more lawsuits.

Open source software is especially vulnerable to the patent sword given its approach to development based on collaboration, sharing of concepts and re-use of code. Although well suited to today's high speed, networked world, it does not fit comfortably with our 19th Century rules on intellectual property, or the monetary imperative of many companies to use them.

Indeed, there are companies designed purely as litigation factories. They don't make anything, except lawsuits.

Case in point: FireStar Software v. Red Hat. FireStar is suing Red Hat in court arguing that it patented the entire concept of object/relational mapping, not merely a specific method or software for using it. Such lawsuits are increasingly common, and may have a real chilling effect on open source developers and projects. Put another way, the enforcement of today's vague patent risks tomorrow's big innovation.

The challenge is to create an intellectual property regime better suited to a digital, networked world where the re-use of ideas is more rapid, more disruptive, and more closely linked to tomorrow's innovation.