Open Source Developers Must Chart Clear Defense in the Patent Wars

The CEO of Barracuda Networks explains how the US patent system is broken and what open source developers can do to protect software innovation.

The United States patent and legal system has turned into a battlefield where companies and technology developers can be attacked. Open source and free software developers have historically ignored this secondary battlefield, focusing instead on the primary battlefield of development and proliferation of their project. This omission leaves open source projects and individual developers vulnerable to patent infringement lawsuits. By creating its own defensive patent portfolio as commercial companies do, the open source community can arm itself for this battle.

The U.S. patent system is fundamentally outdated. The twenty-year patent protection rule, while potentially appropriate in an industry such as biotech, is not appropriate for the software industry. The patent system was created to strike a balance in protecting inventors so they could profit from their hard work and ultimately allow the invention to fall into the hands of society so that all could benefit and society could progress. With the current speed of information transmission and technology development in the software industry, it no longer takes twenty years for inventors to profit from their inventions. We are out of balance when it comes to software patents—the time frame is too long.

The patent system in the United States should be reformed and software patents should be eliminated or restricted, as several other nations have done. The potential impact that software patents could have on the productivity of the open source community and broader software industry is dire. The U.S. patent office issues nearly one hundred thousand patents annually, and complex computer programs can contain thousands of patentable algorithms and techniques. This means proper due diligence would require software developers to investigate an unwieldy number of patents every time they write a few lines of code. It is simply not practical.

Unfortunately patent reform, as with all changes involving government, will be a lengthy process and will require compromise. In the interim, the development of prior art in the open source community is a tremendously powerful tool, and it is crucial that source code repositories with comments and details be maintained. However, although such prior art can be successfully used to invalidate patents, it still takes money to mount the legal defense. In the commercial software environment the only really good defense against patents is to develop your own patent portfolio, as it is the threat of mutual self destruction that keeps most patent lawsuits at bay.

There are primarily two sources of patent attacks: 1) Competitors suing to obtain royalties or stop competition, and 2) Patent trolls suing to obtain money. The patent troll can come in the form of a company that has decided to augment its business with patent licensing or in the more traditional form of an entity whose primary business is patent suits and licensing for profit. The open source and free software communities' biggest threats are the lawsuits from competitors aiming to stop the proliferation of open source software. Patent trolls are typically less interested in open source developers and projects, because only minimal amounts of money are available given the low revenue of most open source projects.

Competitors to open source projects, however, may be very interested in stopping or hindering the development and adoption of free or open source software. In addition to suing companies utilizing open source software, it is not inconceivable that an individual developer might inadvertently infringe a patent, widely distribute the code on the Internet, and ultimately be held personally liable for tremendous damages by the patent owner. Such a tactic might be viewed as a strong deterrent to continued free or open source development.

Though filing patents may seem counter to the mindset of free and open software, the open source community can model what many commercial companies have learned is a necessary task and develop its own defensive patent portfolio. If individual open source developers begin to patent their inventions, and if these patents are assigned to a nonprofit institution with an appropriate charter, the broader open source community could draw from this patent pool to create an arsenal for legal battles. This defensive patent portfolio would be an effective deterrent, creating a cold war truce.

About the author

Dean Drako is co-founder, president and CEO of Barracuda Networks. Dean is responsible for overall corporate strategic direction and product development. Prior to founding Barracuda Networks in 2002, Dean was founder, president and CEO of Velosel Corporation, where he successfully closed two rounds of venture financing. Dean hired his replacement so he could pursue his battle against spam at Barracuda Networks. Prior to Velosel, Dean founded Boldfish, a leading provider of enterprise messaging solutions that was acquired by Siebel Systems in 2003. Before Boldfish, Dean was founder, president and CEO of Design Acceleration, Inc. (DAI), maker of superior design analysis and verification tools, which was acquired by Cadence Design Systems in 1998. He has served as an entrepreneur in residence for SoftBank Venture Capital as well as vice president of product engineering at the 3DO Company. Dean holds a B.S. in Electrical Engineering from the University of Michigan, Ann Arbor and M.S. in Electrical Engineering from the University of California, Berkeley.

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This story, "Open Source Developers Must Chart Clear Defense in the Patent Wars" was originally published by LinuxWorld-(US).

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