Hot Debate About Chilling Effects: Do Software Patterns Hamper/Free Open Source Software Development?

Abstract

The innovation-model in the free/open source software (FOSS) domain differs fundamentally from the innovation-model in the proprietary software domain. Many FOSS advocates claim that opportunities for software patenting, which have recently been expanded in some countries and are used primarily in the proprietary software realm, have negative effects on FOSS. This paper reviews the available evidence and concludes that we know surprisingly little about the empirical relevance of this claim. It argues that, if the claim holds true, negative effects of software patenting should be observable at the level of individual FOSS developers. We outline an explanatory model and research strategy to shed light on this question. The model specifies potential effects of patents on extrinsic and intrinsic motivations of FOSS developers, assuming that such motivations are necessary conditions for participation in FOSS projects and ultimately also innovation. Empirical testing of this model will have to be based on surveys administered to random samples of FOSS developers from different jurisdictions (with variation in software availability) and different domains of FOSS activity (with variation in patent exposure).