Patent Risk Of Open Source Software And Its Legal Countermeasures

With the rapid development of open source software in the world, its potential value begins to surface. At the same time, the open source software gets the support and recognition from the consumers. However, because the nature different between "free sharing" spirit of the open source software and "exclusive protection" concept of the patent system, the patent risk of open source software become more serious. Further, the traditional license and copyright protection mechanism has a congenital deficiency:the copyright only protects the "express" not the "thought", and the license can only solve the copyright problem not the patent issues. Therefore, the patent law system needs to be amended and perfected to face the increasingly severe patent risk of open source software. The focus of this paper is that through the detailed analysis of forms and reasons of the patent risk of open source software to find out the root cause of the patent risk. Then, according to the shortcomings of the current intellectual property system especially the patent and its review system, this paper puts forward some modification and improvement suggestions:establish more strict and operable software patent system; establish and perfect the computer software filing system; shorten the term of protection and review of software patents; make special administrative regulations for open source software protection.