Will the Open Source Movement Survive a Litigious Society?

Since no one is willing to undertake costly research and development to create innovation, incentives in the form of patents were instituted to motivate R&D. In software development, contrary to economic intuition, open source software has emerged as a viable alternative source of innovation. The patenting system has performed reasonably well in enhancing many other technologies. Since the mid-1990s patenting of software and business methods is increasingly accepted in the United States. The legitimacy of many of these new patents is subject to controversy and debate. In this paper we examine the trend, rate of litigation and disposition of US patents in the US Federal Courts. We find that litigation rates of software and business method patents is four times that of all other patents and is increasing. A majority of patent litigations are not won by the perpetrator of the lawsuits. The open source software community is not immune to heightened patent litigations. Since software development is incremental, the paths of OSS and commercial development are entwined. The spillover of patent litigation into OSS may have disastrous consequences: It may increase the 'cost' of OSS, dissuade volunteer developers and make OSS less attractive to users.