A Response to 'The Meaning of “Open Source”: Patented by Microsoft'

Understanding and Misunderstanding

I want everyone to understand – I’m not picking on Gene. While Gene and I disagree on a lot of issues, he’s a nice guy. But this time he’s wrong (link to his article is above).

Gene doesn’t think that Open Source or Free Software is a good idea. He’s wrong, mostly because he doesn’t understand what Free Software really is (and he’s not alone in this). He also doesn’t seem to understand the difference between Free Software and Open Source.


Free Software

Free Software is software which is covered under a license which is designed to prevent the software from being taken proprietary. The most famous free software licenses are the Affero General Public License, the GNU General Public License, and the GNU Lesser General Public License.

A lot of Americans have been told that Free Software, or Copyleft licenses are Communistic. Due to societal issues, many Americans have a terror of Communism that makes them illogical.

Copyleft licenses aren’t Communistic. What they are is Communalistic, based on the systems that the early white settlers in North America used to build schools, churches, city halls, and other community held properties. The Copyleft licenses prevent the theft of community property.

My ancestors helped build schools, churches, town halls, and other community properties. I’m proud of what they did. The native communities in North America before the European settlers arrived also worked the same way.

Community work is a good old North American tradition.

Copyleft And Patents

Patents aren’t compatible with Copyleft licenses. This bothers Gene, and a lot of other people who are pro-patent. What bothers them even more is that software patents often loose out in court. For that matter most patents loose out in court.

So if a patentable idea is first expressed in a Free Software project, it can’t be patented. What’s worse is that there are so many Free Software projects, that the U.S. Patent and Trademark Office seems totally unable to keep track of them, and is therefore improperly issuing patents (see the Java Model Railroad Interface case).

Copyleft licenses are designed to benefit the end user, just like School Raisings were designed to benefit the parents and children who built, and used the school.

Open Source

Open Source is a different concept. Open Source is a programmer’s dream, to be able to access any source code, and use it any way they want. While Free Software licenses have a philosophical background, Open Source is a more selfish beast. It’s for the benefit of the programmer, and the programmer alone (though it often benefits users as well, this is a side effect).

Open Source and Free Software are sometimes the same thing. All Free Software licenses fit the Open Source Definition, but not all Open Source licenses fit the Free Software definition. Open Source licenses are sometimes compatible with patents, but most often they are not.

The most popular licenses which fit the Open Source Definition are Free Software licenses, with the most popular Free Software license being the GNU General Public License.

The Real Problem

I’ve seen figures that 75% of patents which are either overturned in court, or invalidated on appeal to the U.S. Patent and Trademark Office (please note that I don’t know how accurate these figures are). This includes hardware, software, etc. One good example of an invalid patent was a Mexican bean, which the U.S.P.T.O. issued a patent for, even though the plant had been in use for hundreds of years in Mexico.

Software patents are a huge problem, in that the U.S.P.T.O. seems totally incapable of monitoring the immense number of Free and Open Source software projects. One recent case involving Red Hat and Novell, was about technology that had been used in Free and Open Source software projects for long before the patent was applied for, however in that case a working Amiga computer from 1985 was used to prove that the technology was in existence before the patent was filed.

At which point you have to ask, how could the U.S.P.T.O. issue a patent for something that had been in common use 15 years before the patent was filed for?

Or for a bean that’s been in use for hundreds of years?

The real problem isn’t a method of North American community development that’s been in use for hundreds of years. The problem is that there’s no punishment for applying to get a patent on something that already exists. But there is a punishment for infringing on an issued patent.

Does this make sense?

What do you think Gene?


Wayne Borean

Wednesday January 12, 2011


4 thoughts on “A Response to 'The Meaning of “Open Source”: Patented by Microsoft'

  1. Software should not merit patent protection.

    It is too abstract to be patented.

    That’s why the “filters” of prior art, obviousness and inventive step are quite secondary to the main test, which whether or not software deserve to be patented.

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