Beware the Open Source Hand That Feeds You
Will La Salle III is
* — Special thanks to social media superstar Angelique LaRue (@AngeliqueToschi) for her assistance in developing the topic of discussion for this week’s inaugural GITDLaw℠ blog!
William La Salle III, Esq. is The Glow In The Dark Lawyer.SM Will practices intellectual property law as a contract attorney with Thrive IP,® and maritime law under the banner of his own firm, Glow In The Dark Law PLLC (GITDLaw). Thrive IP® is headquartered in North Charleston, SC and has attorneys in various locations along the southeastern United States seaboard. GITDLaw operates from Smithfield, VA, in historic Isle of Wight County, Virginia. The following is presented for informational purposes only and is not intended to provide legal advice, nor is it intended as an offer to create an attorney-client relationship. If you or someone you know needs intellectual property or maritime legal advice, it is recommended that you immediately seek the services of a licensed attorney.
November 11, 2020 — How many out there currently have an iPhone in your pocket or on your desk? How about an Android device? I think by now it is common knowledge that Apple technology is proprietary, whereas Android® is open source. Ever wonder what that means in terms of Apple®’s, Google®’s, Microsoft®’s, or Samsung®’s ability to protect their intellectual property once they place it on the open market? Are you an innovator yourself? Even if you’re not in the cell phone tech sector, the different approaches to patent, trademark, copyright, and trade secret can mean life or death for businesses large or small.
At the outset, it is important to make it clear that US law and the various entrants to the Patent Cooperation Treaty will not allow you to protect inventive ideas in the U.S. or on the World stage which are already known or are obvious based on what is already known. So too, one may not simply automate a process which, though tedious to be done my hand, can be done by human labor. Nor can the claim to an invention be too abstract. In the U.S., see 35 U.S.C. §§ 101–103 and 112. Most people get that. So… what does this have to do with open source?
Anything openly available to the public is by definition “prior art” because it is already known. For those of us who were around in the late 1970s or early 1980s who happen to be familiar with computer science, consider the origins of Microsoft® Windows® as compared to UNIX®. Windows® has always been proprietary, although at various times in its history, Microsoft® attempted to make Windows® universally applicable like UNIX®. Fast forward to today: Microsoft® is a computer tech powerhouse, and LINUX® is also everywhere. What is the distinction? Microsoft® protected its intellectual property along the way through a combination of patent, trademark, and trade secret, and made a lot of money along the way. Alternatively, a plethora of creative tech types are putting incredibly powerful LINUX®-based software out there for which everyone has access, and no one gets paid.
Is there a place in the intellectual property sphere for altruism of the UNIX®/LINUX® variety? Certainly — to an extent. I would venture to say that one example is the current proliferation of the Internet of Things (IoT). But reliance on open source technology of any source (or allowing innovations not intended to be tendered to the public domain go free) can be the honey pot that very quickly spoils. One needs only look to Android® to see why. While Android® remains “open source,” it relies on JAVA® application programming interfaces. See https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America%2C_Inc. The ongoing feud between Oracle® (JAVA®) and Google®(Android®) started in 2012 and continues to this day. Interestingly enough, the battle over rights to use which seems squarely in the realm of patents may have a big segue in copyright. See https://patentlyo.com/patent/2014/05/copyright-subject-matter.html We have come to learn that code is copyrightable, but not patentable. But what about the process performed by the code? The battle continues.
Computer science is just one area of engineering where patentability matters a whole lot. But there are other considerations: brand protection, copyright and fair use, what is trade secret, and more. These are all reasons why the innovator about to put their ideas, reputation, and most importantly, their fiscal security, on the line, ought to engage an intellectual property attorney to discuss these concerns and how to best mitigate them. I look forward into diving into the world of social media, and I am grateful to have you along for the ride. Let us learn, grow, innovate, and succeed, together!