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Software Patents and "Open Source"
by John D. Mitchell
October 13, 2004
Just what does "open source" have to do with software patents?


Tim Bray has a new blog entry with his latest Patent Theory wherein he espouses:

In fact, in an ideal world, I’d rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one.

But, alas, like all to many people, he doesn't actually make it clear what he means by "Open-Source implementation". Sure, it's clear that he's asking for the source code of an implementation of the patentable software idea. But what about the rest of the points of an "Open Source"(tm) license? Where's the boundaries between what people can/can't do with that software before, during, and after the presumed grant of the patent (or when the patent is overturned)?

Also, Tim doesn't seem to get into the issue of the duration of the patents w.r.t. software... 17 years is an awful long time in the software industry. I've heard a lot of people talk about very short spans for software patents but I keep coming back to 5 years as being a reasonable tradeoff (but that presumes that the PTO gets more or less fixed (but that's a whole 'nother discussion, ugh)).

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About the Blogger

John D. Mitchell is the Chief Architect of Krugle -- a search engine for developers. Along with developing and rescuing distributed enterprise systems, John advises investors and executives on technology and high-tech companies. Over the past 15 years, he has been the CTO of ElasticMedia,, jGuru and the MageLang Institute. John co-authored "Making Sense of Java: A Guide for Managers and the Rest of Us." He was the founder and contributing editor of the "Tips & Tricks" column at JavaWorld. John writes extensively on complex systems, development processes, computer languages and protocols, parsing and translating, and technological business risk management.

This weblog entry is Copyright © 2004 John D. Mitchell. All rights reserved.

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