Software Patents and Open Source Models in Europe: Does the FOSS community need to worry about current attitudes at the EPO?

Abstract

The growing popularity of free and open source software (hereinafter ‘FOSS’) and the equally significant growth in the number of software patents give rise to the question of whether both models can live in peace, side by side, or does the latter pose a threat to the former. The focal point of this paper is the scope of patent protection to software products in EPC countries, particularly in the light of of the FOSS development environment.. Software patents are of great interest to the FOSS community. Modern computer programs are complex. They are developed incrementally where each software generation builds upon the previous one. Avoiding an inefficient re-invention of the wheel, programmers are typically combining thousands of different programs and algorithms in an innovative manner in order to produce the requisite final product. Here is where software patents become relevant. If a large number of those fundamental building blocks are unusable due to patent protection, a type of a ‘tragedy of the anticommons’ emerges. Hence, developers that may reasonably rely on FOSS licenses to incorporate the licensed software into their programs may later on realize that their actions amount to patent infringement. Obviously, this might have a chilling effect on the development and adoption of FOSS products.