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Alan Gutierrez, in a comment on the previous software patents post, asks:

What do you think of the idea of an open patent pipeline? Something set up by the open source community to patent open source ideas?

Is this a matter of fighting fire with fire – getting a seat at the big poker table? Most of the objections to software patents seem to come from open source advocates – is the idea of ‘open source software patents’ a contradiction in terms? Are the two ideas mutually exclusive?

Given that the original purpose was to encourage adoption of the patented idea (i.e. the patent itself is supposed to fully describe the operation of the idea or device), but allow profit to the inventor, or at least attribution should the inventor choose not to profit (probably the case in Alan’s scenario), the two ideas appear not to be inimical to one another.

However, I suspect that the cost of registering and maintaining patents may be too high to be sustainable for most OSS volunteers – perhaps some comment from someone better informed is required here, and the Electronic Frontier Foundation seems more inclined to abolish software patents than to encourage their use. The League for Programming Freedom also has a fairly strong viewpointsupported by the Free Software Foundation.

There is also the question of the applicability of patents (even in their intended form) to software, or the description of an idea, rather than a physical device (the original class of objects for which patents were intended). Most observers see copyright (of one form or another, and there a few to choose from) as being the most appropriate form of protection for the originator of software, or ideas.

My take? IF patents were used as I think they were originally intended – to encourage adoption and improvement of ideas, rather than the threat to competition they are used for now; and IF various patent offices were either better equipped or more willing to study patent applications for prior art and triviality; and IF it were not so expensive and painful to challenge patent applications – I might support their application to software. As none of these things look likely anytime soon, I will continue to oppose software patents, even for OSS.