Resolving conflicting interests: software patents versus open source

Abstract

The issue of granting software patents in the United States has a created a rift between the open source community and patent owners. One of the contributing factors causing conflict between the open source community and patent owners is the read granting of software patent applications by the United States Patent and Trademark Office (USPTO). The increasing volume of software patent applications received by the USPTO has strained the patent system and consequently software patent applications are granted without close examination of whether they meet the requirements for a valid patent. The conflict between patent owners and the open source community is exacerbated when alleged patent infringement occurs for software products that circulate in the technology industry that should be open and free to use within the open source community. Subsequently, this issue is complicated when the alleged patent infringement occurs. The threat of litigation is a financial burden that is too great to bear by small and medium enterprises and by developers who unknowingly use software protected by a patent, which results in paying license fees and/royalties to avoid costly litigation. The granting of software patents without scrutiny of prior art by the USPTO is restricting innovation within the information technology sector and hindering developers, programmers, and technology innovators from creating and innovating new and emerging technologies. Further, the granting of software patents without close examination by patent examiners restricts and contradicts the ethos and philosophy behind a grant of patent.