Open source software is nothing new to the world of technology or to the intellectual property system.
However, with the vast amount of open source software currently in circulation and being actively developed, there is a renewed focus on how open source policies affect patents and overall innovation within the technology sphere.
For most software companies, software patents are seen as an important component of their intellectual property protection plan. However, there are plenty of developers within the open source community who do not like patents, which reward the first inventor to file, and strongly believe innovation essentially is synonymous with independent, as opposed to first, creation. Therefore, many open source developers and organizations have a strong bias against software patents.
The definition of inventing is to create something that is new, useful, and nonobvious, rather than to independently develop prior innovations. Independently creating or copying software developed by others may be a violation of their intellectual property rights, and robs them of their ability to recoup their research and development costs.
Open source and patents can coexist in an innovative environment
Open source developers and organizations sometimes fail to realize that software patents need not be an impediment to open source development. In fact, many open source agreements encourage participants to share patent rights, or to license their patent rights on a reasonable basis, which creates an environment that is perfect for innovation in that it is highly collaborative and cooperative. Such agreements allow for joint ventures between parties of vastly different fields, such as between a public university and a private tech firm, or among various private sector companies looking to tackle mutual issues.
A problem with the use of some open source code by commercial software companies is that developments and contributions to the code may be freely used and taken by other, including direct competitors. Under such circumstances, companies may be unable to fully profit from their own work, and there are inadequate protections in place for actual innovations that may occur. So while open source certainly has its place, improper use of open source can stifle innovation, as commercial innovators are de-incentivized to create something new.
Ultimately, innovation is best fostered by an environment that promotes both open source development and patent-protected development.
For more information about the various ways in which open source policies and patents affect innovation and how to secure a patent for your software, contact our California patent attorneys at TIPS Group today.