The lack of clear boundaries in software means that even law-abiding software developers who intend not to violate another’s patent have no clear means of avoiding it. The authors point out that there are around 4000 patents on e-commerce and around 11,000 patents on online shopping. Add to this the fact that getting legal opinion on each software patent can cost around USD 5,000 and we have a vexatious, if not impossible, task at hand. For most software developers, doing a patent search in connection with their work is simply not economically feasible. Even leaving aside the cost of a search, the results are seldom conclusive. Thus it really is not possible to eliminate the risk of a patent infringement lawsuit.
But Open Source has much more to deliver to this President and to the nation, in terms of reforming Washington and our Federal government. One of the strongest criticisms made against Barack Obama during his campaign is that he consistently said that he would go through the Federal budget “line-by-line” and cut wasteful spending, but he never gave any specifics. The open source-based application http://USAspending.gov was implemented after Congress passed a law in 2006 saying that by the start of 2008, every government contract for every government agency (except those that are classified) had to be online, with information disclosing costs, sponsors, contractors, etc. By using open source software and an open source-friendly governance model, the program was delivered ahead of schedule and under budget. And everybody in the world can now inspect the Federal budget on a line-by-line basis.
Since we have been encouraged to participate in this great new democratic experiment, with a President who welcomes our participation, I suggest that we use this great application to help our incoming President identify some of the spending that might best be cut. It’s something we can all do, and it’s something that we should all do. With many eyes, all (budget) bugs are shallow…
Last week the Federal Circuit issued a major decision, In re Bilski, concerning the subject matter limits of patent law. The case presented questions relating to software patents, an issue of great significance to the free and open source software community, and so Red Hat filed a brief in Bilski to educate the appeals court about FOSS and its problems with the software patents. In the new opinion, the court cited Red Hat’s brief, but declined to settle the issue of when, if ever, software based inventions should be patentable. Even so, the new test in Bilski will probably limit the patentability of software. The war is not over, but the odds of success for FOSS just got better.