FOSS And Patents - Peer Collaboration As A Key To Countering Patent Risk, Guest Blog By Clark Asay

In an earlier post I suggested that third-party patents pose the most significant risk of using free and open source software (FOSS). The risk boils down to this: with limited exceptions, someone with a patent that reads on FOSS can prevent anyone else from using that FOSS, even if you or somebody else independently created the software. And under the current patent system, it’s entirely possible to obtain a patent that reads on software that FOSS communities independently create. Consequently, FOSS communities and their users are vulnerable to third party patent claims, even absent any sort of wrongdoing or copying on their part.

FOSS communities have fretted over this risk for years. This fretting is often accompanied with complaints about software patents themselves—software shouldn’t be subject to patents at all; software patents are often granted on obvious “innovations” or methods that have been in use for years; and the patent system favors large corporations over smaller developers.

So what’s to be done? On the general question of software patentability, recent legislative and judicial activity hasn’t done opponents of software patents any favors. In Bilski v. Kappos, the US Supreme Court declined to hold that business methods, software, or any other categories of technology are unpatentable subject matter unless the US Congress says so. And it hasn’t said so. [...]