April 30th, 2009
by Rob Tiller, Vice President and Assistant General Counsel, IP
Today Red Hat took its efforts to confront the problem of software patents to new ground by filing a brief
with the European Patent Office. The brief explains that software
patents hinder software innovation, and that there is a sound legal
basis not to expand availability of such patents in Europe.
The historical record of innovation in software shows that, both for open source and proprietary software, remarkable progress in the U.S. and Europe occurred prior to the time that software patents became generally available. Innovative open source software projects began to appear by the early 1980s.
In sum, legal changes in the U.S. that have allowed software patents have not served the purpose of promoting innovation. Experience has shown that such patents are not only unnecessary but actually detrimental.
They discourage innovation, by imposing costs and risks on software development that would not otherwise exist. As discussed below, however, the U.S. Court of Appeals for the Federal Circuit recently appeared to recognize that the existing system must be substantially modified, and it has provided an approach for repairing the system.
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