Why Patent Open Source Based Software?
Open source software is a multi-billion dollar industry. However, almost every open source developer I have met hates patents. They unequivocally loathe & despise patents, despite the fact that someone else exploits their hard work.
To illustrate my point, let’s consider bitcoin as an example. It is an open source project, released under the MIT license, that became big (and famous) enough that every major tech player and bank now has at least one patent on the technology. I wonder, had the creator(s) of bitcoin known that their project would have spawned a multi-billion dollar industry, would they have filed a patent application and licensed the technology?
I have yet to meet one person who dislikes money, especially if it’s sitting in their bank account and comes from the coffers of corporate America!
“But may be Satoshi Nakamoto doesn’t care about money,” an open source developer retorts, referring to the pseudonym used by the anonymous creator(s) of bitcoin.
While that may be true, had Satoshi Nakamoto predicted the success of his project, he would have patented and licensed the technology to corporate America. I have yet to meet one person who dislikes money, especially if it’s sitting in their bank account and comes from the coffers of corporate America!
By licensing the patented technology the creator(s) of bitcoin could have earned millions of dollars. Even if personal gain was not a motive, the money could have been donated to a righteous cause. Thus, while one can argue that Satoshi Nakamoto didn’t want to profit from his project, at least we can all agree that he did not desire to make corporate America richer by using his technology for free!
Do Patents Inhibit Creativity and Development of Open Source Projects?
Open source developers claim that patents are the Antichrist of innovation. This is yet another myth. Patents do not inhibit creativity or development.
While it is true that patents are a legalized monopoly and grants the patent holder the right to exclude others from practicing the invention, it does not automatically exclude others. The keyword being right to exclude. I contend, an open source developer who insists that his or her project remains open to everyone does not need to enforce their patent rights.
Now you may wonder, “if I do not have a desire to enforce my patent rights, why should I bother patenting my open source projects at all?”
Having the right to exclude an entity gives the open source developer the power to control and govern how their project is used and whom does it benefit.
How Patents Support Open Source Projects
There is a common misconception — that open source licenses are not patent friendly. However, only a segment of open source licenses (the copy-left based open source licenses) do not let one enforce their patent rights to the extent that the patented technology is within the open source software.
However, even those licenses do not exclude the developer from licensing the patented technology itself. This is because patent applications are not generally limited to a particular software platform or source code. Thus, the patent holder can plan to license the technology to a for-profit corporation to generate an alternative source of income.
The patent holder can also create a closed sourced version of the software (if practical) that can be sold, for profit, separately from the open sourced project.
Lastly, patenting the technology can also ensure that anyone who redistributes the open source software does not deviate from or breach the terms of the license. For example, if a for-profit corporation makes improvements to the project and does not open source their code, adherence can be demanded by threatening a patent infringement lawsuit. Thus, patents can be used to prevent for-profit companies from exploiting the hard work and creativity of open source developers, who often do not get paid for their work.
Failure to patent open source software only benefits corporate America. Patenting the technology, however, prevents companies from unfairly exploiting the hard work of open source developers. Patenting open source projects can also protect the rights of developers by forcing adherence to the open source license. Further, patents can assist developers generate an alternate source of income by licensing the technology.