* Software Patents: Examples Of Principled Arguments (Part 4)

The two most fascinating principles on which software patent proponents base their arguments are that 1) open source software is better than proprietary software and 2) free software is better than open source software.

There are also, however, principled (and often compelling) arguments being made against software patents.

You might be wondering why a patent attorney is discussing both sides of this issue. Because one of my principles is that dialog with disagreement is good. Similarly, I believe in pursuing the correct patent strategy for my clients (which is sometimes no patent strategy). See, for example, my thoughts on patents vs. trade secrets.

The two most fascinating principles on which software patent proponents base their arguments are that 1) open source software is better than proprietary software and 2) free software is better than open source software. Both principles are represented by speakers in this conference.

The following are some examples of arguments against software patents that are based on the above principles.

Mitch Kapor’s Weblog (http://blogs.osafoundation.org/mitch/000040.html) includes some excellent arguments against software patents. Mitch Kapor founded Lotus and confounded the EFF. In 2001, Kapor founded the Open Source Applications Foundation to create and gain wide adoption for software applications of uncompromising quality using open-source methods (http://www.osafoundation.org/). It is hard to disagree (and I do not disagree) with his points that 1) many software patents should not have issued (due to prior art), 2) open source organizations may, ironically, need to apply for patents for defensive purposes.

Richard Stallman, founder of the GNU project, software developer extraordinaire, and a tireless evangelist for free software, has written extensively on why free software is better than open source software (and why both are better than the common enemy: proprietary software) (http://www.fsf.org/philosophy/free-software-for-freedom.html). Stallman has stated, for example, that 1) legislation is needed to put an end to software patent litigation (http://www.linuxworld.com/linuxworld/lw-2000-03/lw-03-rms.html?4-4) and 2) software development is hindered by patents because software developers use many techniques and features, some of which may be patented (unbeknownst to the developers).

You may not always agree writers such as Stallman and Kapor, but their arguments are based on principles, which makes then more compelling than unprincipled arguments.

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