On the highest level, “open source” allows free access to intellectual property to promote creativity.  The term is now most often associated with software.  Open source software is source code that is made available to the general public with relaxed or no intellectual property restraints that would keep another person from customizing or building upon the source code to make use of the software for their particular use.

In early 1998, the industry leaders of the open source movement met at an event that would later become known as the “Open Source Summit.”  This meeting led to the organization of the Open Source Initiative, a non-profit corporation formed to advocate the benefits of open source software.  According to the Open Source Initiative, whether software can be considered open source really depends on the distribution terms of the open source software. 

To meet the standards of the Open Source Initiative, the distribution terms of open source software must meet the following criteria:

1.  The open source software license cannot restrict any party from selling or giving away the software as a component of another software program containing programs from several different sources and the license cannot require any fee for sale.

2.  The open source software must include source code and must allow distribution of the source code.

3.  The open source software license must allow modifications and derivative works, and, importantly, must allow the modifications and derivative works to be distributed under the same terms as the license of the original software.

4.  The open source software license may restrict source code from being distributed in modified form only if the license allows distribution of patch files with the source code for the purpose of modifying the program at build time.  The license must permit distribution of software built from modified source code.

5.  The open source software license cannot limit use to any person or group of people.

6.  The open source software license cannot limit use in any field, such as for commercial purposes.

7.  The rights attached to the open source software must apply to all whom the program is redistributed without the need for execution of an additional license.

8.  The open source software license cannot be specific to a product.

9.  The open source software license cannot place restrictions on other software that is distributed with the open source software.

10.  The open source software license cannot demand that a specific technology be used with the software.

The majority of these terms have been incorporated in the Gnu Public License (the “GPL”) that the majority of open source software is distributed under.  The GPL even states in its preamble that “any free program is threatened constantly by software patents.”  The GPL continues its discouragement of software patents in stating that “we have made it clear that any patent must be licensed for everyone’s use or not licensed at all.”  While not explicitly prohibiting software patents, the open source software community’s stance is that the intellectual property in the software should be shared so that creativity can flourish.

In contrast, the primary benefit of a software patent is the broad protection provided by the patent laws.  An owner of a software patent may prevent all others from making, using, or selling the patented invention.  In connection with software, an issued software patent can prevent others from utilizing a certain portion of code without permission, or may prevent others from even creating software programs that perform a function in a certain way.

As a result, the benefits of obtaining patent protection can be extraordinary.  As more developers understand the potential of software patents, more software patents are being issued.  According to the Software Patent Institute, thousands of software patents are being issued every year, covering such areas as business software, expert systems, compiling functions, operating system techniques, and editing functions.

Given the goal of the open source software community to share the intellectual property contained in the software and the directive of the open source licenses to place no restrictions on the software, contrasted with the breadth of protection of a software patent, would a company ever want to obtain a software patent on an open source invention?  There are several reasons why companies do this.  Sun and IBM have patented thousands of open source software patents, only to release them to the general public.  Sun patented its open source software so that it could release the open source software under its own open source license, which had some conflicting terms with the GPL.  IBM regularly patents its open source software to have patent rights to use as an offensive or defensive weapon against claims that it is infringing on someone else’s intellectual property rights.  Finally, a more profitable reason a company may want to patent open source software would be to license the patent to others to create a revenue stream.

There are limitations to obtaining a software patent, however.  The patent law only allows a patent to be issued when an invention is new, useful, and nonobvious.  In addition, obtaining a software patent is usually an expensive process that costs several thousand dollars or more.  While there are reasons to obtain a software patent on open source software, the ultimate choice of whether to pursue a software patent should be made by comparing the value that can be derived from the program for the company to the cost of the patent application process and the likelihood of obtaining significant patent protection.