scholarly article on the relationship between open source and patents

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Matt Maier

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May 23, 2012, 9:02:28 AM5/23/12
to opensour...@googlegroups.com, Marcin Jakubowski, Aaron Makaruk
I thought you guys would find this to be a valuable resource.
OPEN SOURCE INNOVATION, PATENT INJUNCTIONS, AND THE PUBLIC INTEREST
JAMES BOYLE

 "High technology markets are frequently characterized by the existence of network effects.  Markets tend to “tip” towards a single standard—whether a single operating system or a single format for high quality DVDs.  If the standard is proprietary, the owner can extract supracompetitive rents, while the coordination costs of switching to a new standard or technology lock users in, even if better alternatives are subsequently developed.  Consumers bear the cost in the form of higher prices and reduced innovation.  But when the technology is open source, no such hold-up is possible.  Multiple developers can offer competing versions, with the competition simultaneously bringing down prices and offering greater choice and customization.  In markets in which both proprietary and open source products compete, the existence of the open source alternative provides a valuable check on potential monopoly power, as well as a continued prod to innovation by all of the companies involved, whether open source or proprietary...Open source offers a type of technological “species diversity,” in contrast to the proprietary monocultures."

"If open source innovation has great social benefits in fostering competition and innovation, it also has particular vulnerabilities.  First, precisely because open source development takes place in a network and allows both small and large players to participate by building on a common 
technology, it is particularly susceptible to attack and disruption...Individual members can be “picked off,” forced to abandon promising lines of technological development, or to pay ruinous “stacked” royalties because the costs of litigation are too burdensome for any one member of the network to bear...Second,  most of these markets are characterized by strongly cumulative innovation.  A finished product may  “read on” literally thousands of potential patents...Even the most scrupulous respecter of intellectual property can be subject to hold-up by a company 
claiming its patent has been infringed."

Anyway, he goes on to discuss the subject in detail. It's a great read and particularly worth exploring because there is so little information on the legal status of open source projects. Also, his list of references is valuable.
Cheers
-Matt

Joe Justice

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May 26, 2012, 5:05:50 PM5/26/12
to opensour...@googlegroups.com, Marcin Jakubowski, Aaron Makaruk
Thanks Matt, by the way, I'm very much enjoying this article and the highlights you picked out for us. Good find.

-Matt

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