3. Defensive publication
Developing in the open -- with mailing list discussion of new features and improvements linked to public commits right from the start of prototyping -- creates an ever-growing raft of published knowledge that can be mined to provide prior art to defend against future patent infringement claims. Of course, patent aggression relies on a modern protection racket, threatening costly legal ruin if you don't pay up, so the extra step of researching prior art is not a perfect defense. If only it were possible to stop the patents being issued in the first place...
Perhaps it is. You can more directly inject evidence of your innovation into the patent process itself, without the expense of creating patents or the risk they create to your community for the future. Among other approaches, the Linux Defenders program allows patentlike documentation of innovations to be added directly to a database used by the U.S. Patent and Trademark Office in its analysis of new applications. If your company works with Linux Defenders, you can create "scorched earth" around your work, ensuring that new patent applications in your field have to respect your work.
4. Open standards
Open standards create an environment where the patent threat is largely known, either because patents are declared during the standards development process or via a subsequent patent pool like MPEG-LA. A patent pool is an obstacle to adoption for open source, but at least it makes it clear the standard is one that should be avoided.
Truly open standards come with "RF terms" -- free of restrictions on who can use them and how. For extra credit, some standards -- like Open Document Format (ODF) -- are also accompanied by a nonassert covenant from the leading contributors to the standard, so implementers can have extra confidence that the space is as patent safe as possible.
No perfect solution
Of course, none of these measures offers a perfect solution to software patent aggression. Until the law is reformed, patent trolls like Rockstar will prey on the work of innovators, seeking profit and anticompetitive influence for their investors. But these measures together mean that open source software has more defenses than the proprietary work of closed development. Getting the same protections for proprietary software as most open source software has would cost big bucks.
Of course, you need to make sure you're taking up the available defenses by picking modern open source licenses, developing in the open, using truly open standards, and joining the Open Invention Network. OIN is just one of the ways smart people working together are making open source better for us all -- and one more reason why, if we weren't so intoxicated by the word "free," we would see that open source ought to cost more than proprietary solutions!
This article, "4 ways open source protects you against software patents," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.