CCL: software pattents in chemistry?

 Sent to CCL by: "Warren DeLano" [warren~!~delsci.com]
 > But how does this work for open source software? A competitor, e.g. an
 > academic scientist, who releases his research as open source make it
 > impossible to make money with your own commercial product (nuances
 > skipped for brevity).
 That isn't strictly true.  Open source only addresses licensing costs --
 all of the other costs are still present (support, maintenance,
 integration, & training), and they may even be higher in some cases.
 Availability of an open-source product does not make it impossible to
 make money, it just increases the competitive pressure on the
 proprietary alternatives to lower their upfront costs.  Open-source
 competition is one reason for the industry-wide shift to subscription
 licensing, and for the increased prevalence of increasingly capable
 free-but-still-proprietary products. (Egon, consider the new
 DSVisualizer vs. Jmol or PyMOL, as a personal example relevant to both
 of us!)
 > While it holds that privately exploring ideas in patents is fine,
 > bringing that to the market is not... open source does bring things to
 > the market.
 > So, I do think open source does infringe on software patents...
 Patents cover "make, use, or sell", so patents do very much apply to
 open source, and large open-source code projects like Linux are almost
 certainly in violation of numerous patents.  The question is, who do
 patent holders sue when a piece of open-source software is "made" by a
 large segment of the community and "used" by everyone?
 My experience is that open-source projects tend to get away with
 infringement because it just isn't practical for patent holders to sue
 each individual user or participant for lost revenue or royalties.  It
 is somewhat analagous to the RIAA suing music downloaders, but most
 patent holders don't have the deep pockets of the RIAA, and patents are
 much harder to enforce than copyrights.
 That being said, it makes sense to avoid infringement in open-source
 whenever possible, since there is always the potential of being liable
 for damages.  Proving equivalence for complex algorithmic computer code
 can be expensive and difficult, but it is not impossible.
 However, in the grand scheme of things, patents expire rather quickly,
 and they are entirely consistent with the open-source idea that everyone
 eventually gets access to everything for free.  Patents have served
 society well as a means of both rewarding innovation and sharing the
 fruits of such innovation by eliminating royalties after 20 years.
 Copyrights, on the other hand, can last a human lifetime or more, and it
 is very easy to determine (under discovery) whether or not copyrights
 have been infringed.  As compared to patents, software copyrights
 excessively reward innovation, and they provide no reasonable mechanism
 through which such innovation could eventually become available to the
 community as a whole in a royalty-free fashion.   Thus, copyrights are
 the real problem we need to focus on.  They involve applying an
 extremely strong form of legal protection intended for books and unique
 works of art to an important modern class of productive tool.  Prior to
 the invention of computers, analogous tools could only be protected by
 short-lived patents and trade secrets.
 Software is mis-treated as a work of art because centuries-old
 intellectual property laws weren't written with software in mind.
 Open-source and copyleft/GPL are merely work-arounds for this serious
 defect (or bug!) in our legal system.  Ultimately, copyright law needs
 to softened for software works in order to bring their protections more
 in line with patented inventions.
 Cheers,
 Warren
 PS.  The usual disclaimers apply.  I am not a lawyer -- I just spend
 inordinate amounts of time with them discussing many of these same
 issues.
 --
 Warren L. DeLano, Ph.D.
 Principal Scientist
 . DeLano Scientific LLC
 . 400 Oyster Point Blvd., Suite 213
 . South San Francisco, CA 94080 USA
 . Biz:(650)-872-0942  Tech:(650)-872-0834
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