Software patents — more than copyright laws, commercial software companies, and uninformed legislators — are the biggest threat to the future of free software. While software patents have only been issued regularly in the United States since about 1982 (after Diamond v. Diehr), and guidelines for granting software patents weren’t established by the United States Patent and Trademark Office (USPTO) until 1996, software patents are now granted by the USPTO at the rate of nearly 30,000 per year, or over 15 percent of all patents issued.
Software patents — more than copyright laws, commercial software companies, and uninformed legislators — are the biggest threat to the future of free software. While software patents have only been issued regularly in the United States since about 1982 (after Diamond v. Diehr), and guidelines for granting software patents weren’t established by the United States Patent and Trademark Office (USPTO) until 1996, software patents are now granted by the USPTO at the rate of nearly 30,000 per year, or over 15 percent of all patents issued.
It’s easy to understand why a programmer or company that writes code for financial gain would want to patent code: where copyright law protects only the expression of an idea — that is, the source code itself — a patent protects the idea behind the source code.
If you hold a software patent and another programmer writes code that performs the same task in the same way as your patented code, you can block the other programmer from using his or her own program. Moreover, it doesn’t matter that the other programmer didn’t use any of your source code or that you were (previously) unheard of: programmers can’t avoid infringing a patent by developing a product in a “clean room.” Even if someone else comes up with the same idea through his or her own creativity, you, as the patent holder, can stop the other programmer from distributing any software that uses the same “idea” as claimed in your patent….
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