Some would argue, flatly, that they cannot. The past decade's mad grab for software- and Internet-related patents must be opposed, they argue, because patents stymie innovation, hurt consumers and, most of all, undermine software's open roots, its very nature. In a world where companies such as Amazon.com can patent simple business methods like one-click shopping, says Tim O'Reilly -- the computer book publisher who started campaigning against patents about a year ago -- radical change is required. "The best thing we can do is keep all patents away from the software industry," he says.

The chances of such change occurring at the level of patent law seem remote -- computer-related patent applications tripled between 1999 and 2000 alone. But there may be another way: The Foresight Institute, a nonprofit nanotechnology think tank, will announce later this month that it is forming an alliance with IP.com, a Rochester, N.Y., start-up dedicated to protecting intellectual property through the publication of new ideas. Together, as of May 1, the pair will give open-source programmers and projects the chance to work within the patent system even as they strive to overturn it.

Specifically, the joint venture will give open-source and free-software developers the chance to "defensively publish." For a fee of $20 per document (a significant discount over IP.com's usual $100 fee), software inventors will be able to place their innovations in a searchable software database. Since IP.com has already convinced the U.S. and European patent offices to check its database before issuing patents, inventors will be assured that patent examiners will see innovations that might otherwise be lost to unseen Web pages or college papers. IP.com has also put in place several safeguards, which ensure that the document is "in a form that's irrefutable," says David Kline, who has done consulting work for IP and is the author of "Rembrandts in the Attic: Unlocking the Hidden Value of Patents." So, if IBM tries to patent something that's been published in the IP.com database, for example, the inventor will have a better chance of beating the company in court.

The success of the venture isn't assured. Neither the guaranteed searches nor the sharper legal teeth will necessarily stem the tide of dubious patents, say some critics. Free software developers may not bother with Foresight's offer of disclosure, and even if they do, patent examiners might review an IP.com documented innovation and still determine that it's not relevant to a patent application for a related technology.

Still, experts say that IP.com and Foresight aren't just setting a precedent for cooperation among hostile forces. They're also offering open-source innovations more protection than they've ever had before. By creating a central, legally strong database that's cheap enough to be accessible to all, the two sides have given independent programmers the chance to "write a patent claim without getting a patent," says Bruce Perens, author of "The Open-Source Definition," and Hewlett-Packard's chief Linux strategist. Companies that try to patent all things electronically obvious may soon find themselves in court butting up against the same laws their predecessors made popular. It's a case of the people taking back the courts, says Robin Gross, a staff attorney at the Electronic Frontier Foundation, a nonprofit dedicated to protecting free speech on the Web.

"Intellectual property has typically been about cornering things off," she says. "But this is about using the law to make technology free, open and available. It's the open-source community taking the intellectual property laws and making them work to their own advantage."

The Free Software Project
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