Patents seem to be getting a fair amount of press of late.  The original idea of a patent was to give the innovator who develops the idea a monopoly of time in which she/he can benefit by commercial exploitation of the patent, protect by legal means from other wishing to copy the idea.  But long ago, this has become buried in legal, cultural, administrative and practical difficulties – and this is making waves.  We have been patents being used (as with copyright) as a means of proxy business-competition – with a recent Wired article exposing the battle lines of patent-warfare in the smart phone market as the big player jostle for position – so Apple sues HTC (used in many Android phones), Nokia sues Apple, Kodak sues Apple, Research in Motion (makers of the BlackBerry) & Samsung while Palm and Apple argue over patents:

What has for years been a who will-blink-first Mexican stand-off between the tech giants has turned into an all-out gunfight, albeit one conducted by the toughest corporate lawyers money can buy. “Everybody started suing each other a lot more — not only in telecoms, but in software and a number of other fields — starting in the mid- to late-90s,” says Jim Bessen, a law lecturer at Boston University. “The number of lawsuits filed in the US has tripled since the early-90s.” … The struggle that’s broken out between the tech giants has a certain irony; after all, the prizes they’re disputing — patents — were invented to accelerate and encourage invention, not hinder it. The concept is fairly straightforward: a patent is granted if an invention meets a number of requirements, the most essential being “novelty” and “usefulness”. Once granted, a patent typically gives the inventor a limited monopoly of a minimum of 20 years in which he alone can market the invention or license others to take up his protected work.

The intention is to promote the rapid adoption and adaptation of ideas, benefit the inventors and reward the whole process of research and development. However, over the past two decades, changes in the way patents are attributed and patent holders’ increasingly aggressive tactics have created a situation that some claim is choking, rather than promoting, innovation. What makes the problem intractable is that today it is impossible to design a high-end tech product that does not include others’ patents.

Every product is associated with what engineers refer to as a BOM, or bill of materials. The BOM includes the amount a company has to pay in cross-licensing deals for hardware and software before it even gets to manufacture. It can be the chipset, applications, Bluetooth or the use of MP3 file formats: a smartphone’s BOM can be between $150 and $200.

But what of FOSS (Free and Open Source Software)? Unlike most of the above examples it is not developed with the patent system as part of its strategy – for the innovations of FOSS are common knowledge and willingly given to the community. This has not stopped companies from trying to take a bite out of the FOSS dream: Microsoft claimed that Linux violated 235 of it’s software patents.  So does this fear of litigation have any impact on FOSS development as a whole and on the motivations of those who give their time freely to such projects?  New doctoral research (The effects of software patent policy on the motivation and innovation of free and open source developers) strives to answer these questions…

Within FOSS development, patent incidents are rare: Only 2.7% of the respondents reported such an incident.  On the motivation of FOSS developers, patents have either a positive nor negative benefit – as the development is intrinsic – done for the sake of doing and thus outside the circle of legal considerations.  Indeed, the presence of patents may encourage reverse-engineering to produce non-patented versions of the legally protected technology.

Software patents do not appear to show a strong effect on FOSS developer motivation in general. This is true for both camps in the software patent debate: the presence of software patents has no positive effects on monetary and skills-related motivation, as argued by proponents; it also does not show negative effects on joy- and self-expression-related motivation, as argued by opponents. In contrast and counter-intuitively, joy-related motivation seems to be positively influenced by the presence of software patents.

The report offers some recommendations (or more accuratly words of warning!) for policy makers:

For policy-makers in innovation and intellectual property policy fields the challenges are (a) to decide whether FOSS deserves a special case when debating software patents because of its unique way of creating software for the common good; (b) to continue treading carefully in the field of software patents before jumping to legislation. The FOSS market has reached a size where harm cannot be considered collateral damage as it may have in the past. Although the results have not shown systematic harm to the FOSS communities, there is still no empirical support that the traditional arguments in favor of patents do hold for the FOSS system – or software in general, as some continue to argue.