Key Forces driving open source today

http://www.infoworld.com/d/open-source-software/5-key-forces-driving-open-source-today-204429


3. The specter of software patents
The legal system is having an increasing effect on today's open source movement in the form of software patents, a stark contrast from 15 years ago.

A form of social contract between inventors and society, patents exchange a temporary monopoly of a practical invention for the publication of that invention so that the public at large -- "the commons" -- can benefit from it.

Patents protect implementations of ideas, not ideas themselves. But over time, clever drafting by legal experts has pushed the envelope for what can be patented, and in the software industry, a loophole that allows ideas to be associated with a physical object and thus rendered patentable has yet to be addressed by legislators. While software can only formally be protected by copyright, verbal constructs attaching software or algorithms to general-purpose computers have allowed patents on software to increasingly be granted.

Worse, software patents make no allowance for the reality that, unlike the creation of physical objects, two programmers in two unconnected places may in fact devise the same method to solve the same problem without copying one another. Thus, for proprietary and open source software alike, patents represent a threat. At any time, a well-resourced corporation wishing to chill competition can challenge another entity of any size. There's really nothing an individual developer can do to be protected from software patents, although Debian provides worthwhile advice.