Government support of open source falls short

American and European governments are hailing open source innovation, but failing to act aggressively on patent reform

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Once again, the key dynamic of open source is destroyed: the freedom to innovate without asking permission, without requiring a relationship with anyone or anything else to proceed. A new report from the Congressional Research Service (CRS) makes clear the problem of patent trolls.

I hope the White House and the European Commission both recognize this tension and finally take steps to ensure the innovation-killing compulsion to have permission first because of a patent system designed for ploughs and not programmers will get fixed. There are activities on both sides of the Atlantic marked "patent reform": in the United States, the Leahy-Smith America Invents Act and in Europe, discussion of the idea of a single patent applicable throughout Europe. However, both moves are actually the incumbent industries of the 20th century consolidating their control of markets, rather than a wave of new thinking for the 21st century and its meshed society.

Looking through the America Invents Act, it's clear that almost every part is based on the assumption that individual innovators and small businesses in America need easier access to owning patents. According to the CRS report, the problem of patent trolls was understood at the time the Act was debated, but they apparently have friends in high places. The report says "the AIA contains relatively few provisions that arguably might impact PAEs, apparently because of lively debate over what, if anything, should be done about them." Consequently, the Act does almost nothing to address the problem of patent trolls and the use of patents to stifle competition in technology markets. Reform it may be; radical it is not.

There's some glimmer of hope, though. Section 30 of the Act says:

It is the sense of Congress that the patent system should promote industries to continue to develop new technologies that spur growth and create jobs across the country which includes protecting the rights of small businesses and inventors from predatory behavior that could result in the cutting off of innovation.

The result of that "sense of Congress" is that section 34 of the Act commissions a study on the effects of patent trolls on the American economy. The data gathered will be valuable, but the study is flawed as it only considers actual litigation by patent trolls. A significant part of the cost associated with patent claims by trolls against America's businesses occurs before formal litigation is instituted. The cost of patent litigation is so astronomically high that any sane party will settle -- under cover of a confidentiality agreement imposed by the aggressor -- before actual litigation is initiated. To properly assess the cost of patent trolls on U.S. business, any estimate needs to also include pre-litigation settlements.

Open source advocates find it easy to be discouraged by the spectre of software patents, but these developments together suggest the winds of change are starting to blow. At the same time as leaders are recognizing the power of "open" to stimulate innovation, legislators are beginning to see the patent system is a poor fit for our emerging, meshed society of citizen-creator-consumers. Let's make sure they know how much we agree with that sentiment.

This article, "Government support of open source falls short," was originally published at Read more of the Open Sources blog and follow the latest developments in open source at For the latest business technology news, follow on Twitter.

Copyright © 2012 IDG Communications, Inc.

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