Subject: Re: Is open source software innovative?
From: Peter Wayner <>
Date: Fri, 5 Jan 2001 07:56:03 -0500

 Fri, 5 Jan 2001 07:56:03 -0500
At 4:22 PM -0700 1/4/01, Chris Rasch wrote:
>I've been doing some research for a paper, and I came across an article
>that has some bearing
>on the issue of whether open source software is innovative:
>"As many psychologists and historians of technology have shown,
>innovation does not proceed through major breakthroughs by specific
>individuals, but rather through the collaboration of different people
>who, through small and cumulative improvements, yield novel and useful
>artifacts over time (Basalla, 1988). All of patent law, on the other
>hand, is based on the assumption that an invention is a discrete and
>novel entity that can be assigned to the individual who is determined by
>the courts to be its legitimate creator. The associations of an
>invention with other existing or past artifacts are therefore obscured.
>Despite its philosophical foundation, however, the patent system cannot
>entirely obscure the true nature of technological change. As I have
>already mentioned, virtually every new patent infringes in some way on
>other patents. Furthermore, most patented innovation are typically very
>minor improvements. As the economist F.M. Scherer (1987: 124) has noted:
> As the bleary-eyed reviewer of some 15,000 patent abstracts in
>connection with research? I was struck by how narrowly incremental
>(adaptive?) most "inventions" are.  Even an anonymous author writing in
>a brochure of the Canadian Intellectual Property Office (1994: 8) had to
>admit that 90% of all patented inventions are minor improvements on
>existing patented devices."

I think it is easier for the office to allow any old "size" patent 
because it is so hard to measure the significance and the breadth of 
the patent when it is granted. Even 20 years later at expiration, 
there are many that die with their potential unfulfilled.

Plus, small patents are usually much easier to work around so they 
rarely curtail innovation. In fact, you could argue that small 
patents encourage innovation because competitors can't simply copy 
the tweak. They need to find their own tweak. At the end of the day, 
we have two tweaks in the open literature instead of one.

Of course, that's in theory. The high cost of bringing and defending 
patent lawsuits changes the equation. I'm just not sure how much. 
That's another size question.

-Peter Wayner
Tune to  for information on my book 
on Free Software.