Software Patents: Examples Of Principled Arguments (Part 4)

The two most fascinating principles on which software patent proponents base their arguments are that 1) open source software is better than proprietary software and 2) free software is better than open source software.

There are also, however, principled (and often compelling) arguments being made against software patents.

You might be wondering why a patent attorney is discussing both sides of this issue. Because one of my principles is that dialog with disagreement is good. Similarly, I believe in pursuing the correct patent strategy for my clients (which is sometimes no patent strategy). See, for example, my thoughts on patents vs. trade secrets.

The two most fascinating principles on which software patent proponents base their arguments are that 1) open source software is better than proprietary software and 2) free software is better than open source software. Both principles are represented by speakers in this conference.

The following are some examples of arguments against software patents that are based on the above principles.

Mitch Kapor’s Weblog (http://blogs.osafoundation.org/mitch/000040.html) includes some excellent arguments against software patents. Mitch Kapor founded Lotus and confounded the EFF. In 2001, Kapor founded the Open Source Applications Foundation to create and gain wide adoption for software applications of uncompromising quality using open-source methods (http://www.osafoundation.org/). It is hard to disagree (and I do not disagree) with his points that 1) many software patents should not have issued (due to prior art), 2) open source organizations may, ironically, need to apply for patents for defensive purposes.

Richard Stallman, founder of the GNU project, software developer extraordinaire, and a tireless evangelist for free software, has written extensively on why free software is better than open source software (and why both are better than the common enemy: proprietary software) (http://www.fsf.org/philosophy/free-software-for-freedom.html). Stallman has stated, for example, that 1) legislation is needed to put an end to software patent litigation (http://www.linuxworld.com/linuxworld/lw-2000-03/lw-03-rms.html?4-4) and 2) software development is hindered by patents because software developers use many techniques and features, some of which may be patented (unbeknownst to the developers).

You may not always agree writers such as Stallman and Kapor, but their arguments are based on principles, which makes then more compelling than unprincipled arguments.

Related Posts

  1. Software Patents: Good Or Evil? (Part 1) (6/15/2003)
    This week, I am speaking at the fourth annual Law and Technology Conference at the Technology Law Center of the University of Maine School of Law. I am taking a non-standard approach to this presentation. Rather than preparing PowerPoint slides (or the like), I will be posting a series of notes on my website.
  2. Software Patents: Principled Dialog (Part 2) (6/15/2003)
    Whatever your position on software patents, or on patents in general, one thing is clear. Principled arguments are more interesting than unprincipled arguments.
  3. Software Patents: Examples Of Unprincipled Arguments (Part 3) (6/15/2003)
    Many educated people are opposed to software patents, but few make principled arguments to support their positions.
  4. Software Patents: Examples Of Principled Arguments (Part 4) (6/15/2003)
    The two most fascinating principles on which software patent proponents base their arguments are that 1) open source software is better than proprietary software and 2) free software is better than open source software.
  5. Software Patents: Copyright Law Expansion And Lessig’s Software Patent Non Sequitur (Part 5) (6/15/2003)
    Lessig argues convincingly for limiting the extension of copyright terms but argues unconvincingly against software patents.
  6. Software Patents: IETF Standards (Part 6) (6/15/2003)
    For now, the IETF has not changed its policy about using patented technologies in the standards process. The tension between the IETF and the open source community will likely increase as open source software continues to grow in popularity.
  7. Software Patents: W3C Standards (Part 7) (6/16/2003)
    The open source community has generally viewed the W3C’s decision on patents in standards as a victory.
  8. Software Patents: Final HERTS (Hypotheticals, Examples, Rants, Thoughts, And Stats) (Part 8) (6/16/2003)
    Using open source software is a bit like reading Entertainment Weekly. Lots of people do it but few admit it. Plus other observations that didn’t fit anywhere else.
  9. Software Patents Epilogue (7/16/2003)
    The 2003 Law and Technology Conference at the Technology Law Center of the University of Maine School of Law was the most fun I’ve had at a conference in years.

Leave a Reply

Your email address will not be published. Required fields are marked *