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What everyone seems to be forgetting is the primary reason why open
source software is preferred by so many. Because there are so many
additional eyes looking at the code and so many additional people
writing the code, there is a much higher chance of people finding and
fixing bugs or thinking of and incorporating innovations. Open source
projects should rely on that same system to help with patent searches
and with finding ways around the patents. I think some open source
projects seem to operate in a bubble where only the code matters. This
is mistake. The code is the end product but it is not the be-all and
end-all of the process for creating a good product. And if you don't
think of an open source project as a real product then what the heck
are you wasting your time for. If you need a hobby, take up knitting.
You can't give your grandmother code for christmas.
There are various web sites and web based software systems for
tracking open source projects. They often have version control,
discussion forums, and bug tracking features. I think it is high time
they added systems for managing the patent search so that the work can
be split up among multiple people. It should be managed in such a way
that not too many people repeat the same searches but that there is
enough redundancy to ensure that slackers doing lame searches don't
ruin the process. People should be able to enter the search terms they
used on what search engines and what results they got. From this the
system needs to build up a list of potentially matching patents which
highlight the specific parts of the patents that may conflict with the
open source project. There needs to be a way to tie the results from
various search engines together so that one specific patent doesn't
show up more than once in the list. Finally, the software should then
automatically re-run the searches on a periodic basis to look for
additional hits which human viewers will evaluate.
Once there is a list of potentially matching patents with individual
potentially conflicting claims highlighted, the system then needs to
allow those claims to be plucked out and grouped according to various
criteria such as degree of conflict, impact of the conflict on the
ability of the project to go forward, and the features of the open
source project that are potentially conflicting. These would all be
linked back to the original patents and the search engines or web
sites where they can be found. Then some contributors to the project
can work to find prior art to invalidate the claims while other
contributors could work to redesign the code so that it would no
longer infringe on the claims if they are found to be valid. Again,
all of this work should be organized on the site for maximum
efficiency (and I'm talking about more than simply yet another forum
or message thread here). By working on the problem from every angle
while organizing all those angles, open source projects can avoid the
big problems that come from ignoring the small problems for too long.
To simply stick one's head in the sand while shouting that software
patents shouldn't exist will do nothing but get sand in your mouth.
Software patents will not go away. Some things truly are new
inventions which took a lot of work and money to develop. But software
inventions should be treated like any other invention. You should only
be able to patent the method in which the final goal was achieved. Not
the goal itself. There are hundreds if not thousands of patents on the
proverbial better mouse-trap. I can still file yet another one today
as long as I have a new method of catching the mouse. No one can say
that the IDEA of catching a mouse is protected. Unfortunately, big
companies, slick lawyers, and ignorant patent clerks have conspired to
allow exactly that for software patents. To claim you invented the
idea of one-click online purchasing is absolutely ludicrous. However,
one method of achieving that may be patentable. But this shouldn't
prevent others from finding other ways to do the same thing. Just as I
can find other ways to catch mice.
What is needed is patent reform and patent clerks who know their butts
from holes in the ground. Until then, people working on open source
projects need to deal with the problem using their most valuable
assets: teamwork and a really huge team.
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