Academic journal article Santa Clara High Technology Law Journal

Source Code versus Object Code: Patent Implications for the Open Source Community

Academic journal article Santa Clara High Technology Law Journal

Source Code versus Object Code: Patent Implications for the Open Source Community

Article excerpt

I. INTRODUCTION

Since the Federal Circuit's 1995 decision in In re Beauregard and the United States Patent and Trademark Office's ("PTO") subsequent issuance of its Guidelines for Computer Related Inventions ("PTO Guidelines") in 1996, computer programs embodied in a computer-readable medium are now considered patentable subject matter under 35 U.S.C. [section] 101 by the PTO. (1) Specifically, patent claims, now commonly referred to as "Beauregard claims," that recite an invention embodied in a computer-readable medium are readily allowed by the PTO as long as they satisfy the novelty, non-obviousness, and utility requirements of 35 U.S.C. [subsection] 102 and 103. (2) However, the Federal Circuit has never definitely concluded whether such embodied computer programs are indeed patentable. Therefore, the question is raised, what does the PTO mean by a "computer program?" (3)

To appreciate the ambiguity of the term "computer program," imagine a scenario in which a programmer at a security software company is searching the Web for an elegant solution to a cryptographic problem. He comes across a cryptography open source project Web site that appears to offer such a solution. The programmer downloads the source code from the Web site onto his computer's hard drive. However, after inspecting the source code, he concludes that the solution provided by the source code is not sufficiently robust to be used at his company and decides not to use the code. Now, further assume that unknown to either the programmer or the open source project, the functionality described in the downloaded source code is covered by a third party's patent (i.e., in Beauregard form). By simply downloading the source code onto his hard drive (i.e., a computer-readable medium), has the programmer infringed the third party's patent?

In a world where source code on a hard drive is a computer program embodied in a computer-readable medium the programmer has infringed the third party's patent, because by merely downloading the source code, the programmer has "made" the computer program under the Patent Act. (4) Thus, under such an interpretation of "computer program," any person or company wishing to assess the quality of source code by downloading a copy simply to examine it, without even compiling or executing it, could potentially be infringing another's patent. Such potential for patent liability could discourage the widespread distribution of source code that produces the exchange of new ideas, innovative theories and techniques, and secure coding practices that are so valued by the open source ideal. As such, those in the open source community typically view "software patents" as "the monster hiding under every software developer's bed." (5) Nevertheless, rather than addressing the ambiguities of computer software patentability in the current legal framework, much of the open source discussion regarding patents focuses on the lack of novelty or obviousness in software patent claims. (6)

It is far from clear whether we live in a world where source code on a hard drive (or any other computer-readable medium) is considered statutory subject matter as a "computer program" by the PTO or the Federal Circuit. This Article explores the current legal framework regarding computer software and patents. It explores the distinctions between source code and object code and discusses the legal ramifications of these distinctions in patent law. Part II provides a brief discussion of the technical distinctions between source code and object code. Part III explores the issue of whether source code infringes software patents, presents an argument that the infringement of software by source code may overextend patent jurisprudence, and points out the ambiguities of the PTO with regard to Beauregard claims when applied to source code. Finally, Part IV examines the implications of the foregoing for the open source community and concludes that if source code does not infringe patents, then many important open source activities may be free from software patent concerns. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.