Why patent open-source software?
Updated: Jun 5
Yes, open-source software can and should be patented.
Open-source software (OSS) patents may sound like an oxymoron. However, top open-source contributors like Google and Microsoft are also top patent holders. It begs the simple question: why are these companies going through the process of filing expensive patents?
Patents are needed to defend open-source software
Opens-source is more than a simple ideology, it is a war fought by an army of developers and lawyers pushing for free and open software.
Ever since the nuances between free and open-source software came out of lecture halls and spilled into courtrooms, it became clear that the fight over ownership of code would be one to define the decades to come. Perhaps the most emblematic early such fight was that between Microsoft and Linux.
As Microsoft ascended to tech dominance in the early 90s, many such as Netscape were not too pleased by their practices, which some alleged as anti-competitive. It was clear that as a new player emerged to surpass IBM, it would be no better than its predecessors. The Open Invention Network (OIN) was created as the focal point of this movement to counterbalance tech giants, then and in the future.
If software was to be free, it would be up to developers to band together. The war they fought with Microsoft to force their hand and open licenses was not fought over ideology but patent law. The OIN leveraged its hundreds of patents to tie Microsoft up in court for years and years. Over 750 patents to be specific, representing intellectual property donated as well as over $100 million invested in acquisitions and defense fees. Even with those numbers, OIN remains an underdog. However, in the end, Microsoft balked, and the giant’s capitulation marked a watershed moment in open source software history.
Copyright is an ineffective way of protecting software code
Patents proved to be the stone with which David toppled Goliath. Many startups today look at the difficulty and cost of obtaining patent protection on software and too quickly turn away from that path. While copyright is indeed in effect on code without a patent, and while one can apply an open-source license, that covers only that code, in that language, with the lines of software code as originally written.
Open source licenses are extremely limited and weak. One famed example of what can await a strong technology with weak protection is MongoBD. This open-source document database software was so popular that Amazon decided to take it, turn it into a closed-source code, on purpose, and legally. What Amazon did was to recreate every functionality and market it as their own: Amazon DocumentDB.
Amazon DocumentDB (MongoDB-compatible) database migration service
The copyright does not protect against the copy of the software technology. Said another way, anyone can legally appropriate OSS technologies in closed-source products with 100% identical functionalities.
Patents are far more effective for software than copyrights. Patents can protect the functionalities (APIs) and the underlying technologies. All of these are worth patenting if they are worth truly deploying and implementing.
We are not talking here about small or spurious patents, small lawsuits, or trifling matters. When a community builds a new technology it must protect it by obtaining and asserting patent rights. This is the only hope, the community has, to defend its creation and its members from industry giants.