Chapter 7. Patents and Open Source

Issues regarding patents and open source fall into two categories: infringement and portfolio management. But before that analysis, it is important to understand the politics of patents in the open source world.

Patent Debate[91]

There is an enormous amount of discussion on the question of whether software patents are desirable from a policy perspective. The open source community is strongly set against the existence of software patents. For instance, the introduction to the GNU General Public License (GPL) contains a statement that "any free program is threatened constantly by software patents"[92] and the Free Software Foundation (FSF), recently in connection with the Public Patent Foundation (PUBPAT),[93] sponsors both political activities to discourage patent protection of software and projects to "bust" (via prior art) existing patents. Whether open source software is particularly vulnerable to litigation based on patent infringement is an open question upon which open source lawyers are divided.

To understand the contours of the debate, it is necessary to understand some of the basic principles of patent law. Those who are not familiar with intellectual property concepts often find patent law quite counterintuitive. Patent rights are sometimes called nonenabling rights. In other words, owning a patent does not secure for the owner the right to engage in any particular activity. A patent is exclusively the right to exclude others from engaging ...

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