Author: Maria Silvia Martinson, lawyer at RestMark METIDA
For a number of years, software patentability has been one of the most controversial and thought-provoking topics in the field of intellectual property protection. Even now the end of those discussions seems far away. At the same time, the approach to creating and amending software is evolving constantly, even to the extent that we have to ask whether patenting software could even fit into the changed model of the future?
The open source movement, which in itself is not a new concept, has become increasingly popular among both small and big corporations. The term „open source“ was created in 1998 by the founders of the Open Source Initative (OSI), who advocated for free software, declaring that „freedom“ was crucial to the development and quality of software. Long before that time, the term „free software“ had been taken into use by the Free Software Foundation (FSF) established in 1985, who believed software should be free due to ideological reasons.
The idea behind open source software and free software is fairly similar, the OSI has defined it as „software released under licenses that guarantee a certain, specific set of freedoms“. However, Thomas Warger has defined open source more specifically by stating that it is „an approach to software development and IP in which program code is available to all participants and can be modified by any of them“. Principally, all interested people who have the necessary set of skills can contribute and make amendments (i.e fix a bug) to the source code as it is made publicly available. The amendments are then communicated back to the people responsible for developing the software.
Open source software is considered to be the opposite of commercial or proprietary software. Proprietary software belongs to an individual or company, is possibly patented and its source code is not made available for further development by the public. There are many restrictions regarding the use of said software which have been implemented via strict licensing agreements. For example, almost all Microsoft software is proprietary, including the Windows operating systems and Microsoft Office. While licensing agreements give users the possibility to use the functionality of the software, they do not let users access its methodology. At the same time, many of Microsoft’s competitors have made their alternative software accessible to open source enthusiasts, such as OpenOffice.org, Mozilla Firefox and the Android operating system.
The open source movement surely has its advantages compared to closed source software.For example, end users can customise software to fit their needs as commercial software cannot usually be customised that much. Additionally, different bugs are discovered and fixed faster due to many people accessing the source code, which betters the quality of the software. It also allows small businesses to play in the „big leagues“ as they might not have monetary resources to hire professionals to do what skilled open source enthusiasts can. At the same time, the system has its downs. More precisely, it has no guarantee that people will finish the developments they have started, since they are not on the company’s payroll. For the same reason there is no responsibility to provide updates and there is insufficient information about the individual development projects which are taking place.
Due to the very different nature of open source software, is patenting even an option anymore? As a generalisation it can be said that patenting software is currently possible in the United States, but not in the European Union. Patents are proprietary and give its owner great control over how the invention is used, sold etc. At the same time the open source system allows anyone and everyone to use and even modify the software, making it more of a „community“ software rather than the product of a single individual or entity. However, patenting an open source software is not impossible, it is just difficult, especially in some cases, and somewhat contradictory with the ideology.
Professionals have stated on numerous occasions that it is very unlikely that open source software will take over the market entirely, at least not in the upcoming years. Open source movement is a good alternative for the proprietary regimen and surely livens the competition, but still has several rough edges to polish off. Many important legal aspects, especially those relating to license agreements and patenting are still left to be answered by the courts and the outcomes are thus only speculatory as of now. Whether or not software should be patentable is also likely to remain debatable for a long time – maybe by the time an agreement is reached, proprietary software will already be a thing of the past.