May software patenting and open source go together?

In this post published in a Sydney based IP firm's IP blog, the author(s) speculate(s) whether it makes sense to consider patenting of open source software, which would of course require a certain degree of mental liberty to overcome the common view that patenting totally contradicts to the idea of open source and is, at best, only an option for big business. The idea is that the underlying rationale of patent protection and open source is to publish the invention/source code to be used and further developed by others. However, while open source can be freely used within the provisions of an open source license, a patented software-related invention may only be used if a patent license (or cross-license) is obtained that usually is liable to pay license fees. From that point of view, the two models for "explointig" software appear fairly similar, since the world's patent databases may be seen as large free-access prior art libraries, even though an invention disclosed in a patent and an open source library provide very different levels of detail and opportunities to use the disclosed knowledge. However, when considering the aspect that a patent owner has a monopoly, while the open source programmer contributes his developments to the community, the two models appear rather far apart. If the latter perspective is adopted, it doesn't help very much that patents only grant monopolies for a limited period of time (20 years from the patent filing date), since software life cycles usually are much shorter than a patent's lifetime. At this point, the authors suggest that the open source community should consider patenting their developments for three reasons: A group of open source collaborators could secure a patent and grant a royalty-free licences to (only?) the open source community in much the same way as open source software is licensed ...Zum vollständigen Artikel


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