The Free Software Foundation recently made an effort, apparently funded by the Shuttleworth Foundation, to overturn software patenting in the courts, through an amicus curæ filing in the Bilski case. That case, and a fall-out case, In re Ferguson, have tightened the rules for software patenting and have potentially invalidated many granted patents, but have not eliminated software patenting. An appeal has been filed by Bilski and his partner, the creators of a business method patent now rejected by the court. Any findings by higher courts are years in the future.
But the real solution is a legislative one. Software patents hurt more than just Open Source. Small and medium-sized proprietary software companies are essentially hostages of patent holders, often larger companies with deep litigation budgets, that can force the small companies to license rather than endure a multi-million-dollar case just to prove they're right. So, tomorrow's disruptive technologies are hostages. Weren't patents supposed to promote innovation? Software patents aren't doing so, and it's time to be rid of them.
But there's also room for thought about the problem of the high cost of justice. Why should it be the case that only a company willing to waste millions on legal fees is able to prove its innocence to an infringement charge by invalidating a patent in court, while other developers, especially the Open Source developer who doesn't charge for his work, are stuck? How can we claim that there's justice in the United States when only the rich can afford it?
While a legislative campaign against software patenting has been mounted in Europe, there's never been a significant one in the United States. It's time. Both the small- and medium-sized proprietary software developers and the Open Source developers have common cause in this. It's important to realize that any company is a software company these days, as even mere users of software are vulnerable to a software patent lawsuit. And they aren't doing anything to protect themselves. They'd better wake up.
One critical issue is that the U.S. currently has a one-size-fits-all patent system. You get the same patent for pharmaceuticals as for software, and the pharmaceutical companies have the best government they could buy. Decoupling the issue of software patenting from that of medicine will be critical to winning this effort.
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