Open source software and software patents: A constitutional perspective

Abstract

Imagine if each square of pavement on the sidewalk had an owner, and pedestrians required a license to step on it. Imagine the negotiations necessary to walk an entire block under this system. That is what writing a program will be like if software patents continue. The sparks of creativity and individualism that have driven the computer revolution will be snuffed out. Imagine if each square of pavement on the sidewalk had an owner, and pedestrians required a license to step on it. Imagine the negotiations necessary to walk an entire block under this system. That is what writing a program will be like if software patents continue. The sparks of creativity and individualism that have driven the computer revolution will be snuffed out.—Richard Stallman and Simson Garfinkel (1992) This article highlights the vulnerability of the open source software movement to patent infringement lawsuits. With the number of patents on software algorithms predicted to exceed 100,000 this year, it is now virtually impossible to write any computer program, however trivial, that does not violate one or more patents. This paper argues that this situation is not only ludicrous, but it is contrary to any reasonable reading of the Constitution’s intentions with respect to the protection of intellectual property. In addition, the patentability of software algorithms stems from the U.S. Supreme Court’s failure to grasp one of the most fundamental concepts of computer science. From this error stems a long, dysfunctional chain of legal reasoning and patent policies, the effect of which has been to transform the mental reasoning processes, abstract knowledge, and scientific truths of computing into patentable subject matter. The result poses a potentially catastrophic threat not only to the open source software movement and the emerging industry of electronic commerce, but more fundamentally, to the very existence of the sciences of computing, without which further U.S. technological leadership will be impossible to sustain.