Legal Primer for Free and Open Software
SFLC holds first-ever summit, releases book on copyrights, patents
October 15, 2007 —
(Page 1 of 2)
The question of whether software should be patentable subject matter was one of several issues tackled Friday at the first Legal Summit for Software Freedom, sponsored by the Software Freedom Law Center at the Columbia Law School in New York City.
The meeting brought together developers, lawyers and open source software advocates. “We need to include all in our community,” said Daniel Ravicher, the SFLC legal director. “Our goal is to have people leave with an understanding of what software freedom is,” he added. To that end, the SFLC today put up on its Web site a primer for organizations that use open source software and the problems they could face.
Richard Fontana, SFLC counsel, argued that despite being seen as a settled issue, the debate over the patentability of software has been kept alive by the open source community. “Opposition to patents is universally held in this community,” Fontana said.
Fontana spoke of the “mental steps doctrine,” which holds that if software involves human decision-making, or simply computerizes that process, the software is not patentable. Early computer programs were seen in this way, but now there is concern in the community that patents are being given too freely by patent officers who do not have the technical skills to make decisions about what is unique and different, he said.
However, Fontana did note that there are ironic similarities between the patent camp and the free software groups: Both believe patents help avoid duplication of effort because of required disclosures, and both share the view that patents encourage innovation.
As to the proliferation of patents, he said there should be an idea of obviousness. “If it’s obvious to a person of ordinary skill and art, it shouldn’t be patented. The [U.S. Patent Office] issues patents that cover old technology.”
But patents shouldn’t be confused with copyrights, he said. Patents cover ideas and inventions; copyrights cover the implementation of those ideas. James Vasile, another SFLC attorney, discussed the importance tackling copyright issues early in an open source software project. “Managing copyrights as they come in and go out can make the difference between a project that’s commercially viable or not, or whether the adoption of a project grows,” Vasile said.
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