A very pragmatic article by an anti-software patent activist shows exactly how the patent system forces innovation to happen.
The article in News Forge, the Online Newspaper for Linux and Open Source explains exactly how the open source community will handle the threat of software patents.
Let’s say that software patents end up being legalized in Europe and continue as they are in the U.S. Linus Torvalds has said (relating to the SCO case) that if any code in the Linux kernel infringes upon legal rights, it will be immediately removed and rewritten. The same principle applies to any patent that open source software may infringe upon. Infringing piece of code? Rewrite it. Patented audio or video codecs? Remove them, and create your own.
Create your own, improve on what has gone before, build on someone else’s inventions rather than merely use them as they are, this is how the patent system forces innovation and improvement.
The downside of redesigning to get around someone else’s patent is that the new software may not be interoperable with existing software. This is where the software developer must choose to buy a license or develop a new standard that he or she can control. The new standard may be patentable and give the developer a legal means for directing how the new standard is implemented.
There are many examples of competing groups who have consolidated their patents and standardized their interfaces for interoperability, one of which is in RFID technology. Open source developers, had they banded together and patented their innovations, would have bargaining power with existing patent owners and would be able to negotiate agreements in their favor. Instead, they may be forced to create the next generation of innovations in their field.
