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New Doctoral Thesis Explores the Effects of Software Patent Policy on the Motivation and Innovation of Free/Libre and Open Source Developers

Posted in Law, Patents at 5:46 pm by Dr. Roy Schestowitz

Effects of Software Patent Policy on the Motivation and Innovation of Free/Libre and Open Source Developers

Summary: The thesis of Marcus Manfred Dapp offers an explanation of why software patents are bad for Europe (and for any other continent/country for that matter)

THE following thesis [PDF] is being passed around the FFII at the moment. It was written in English and it covers a topic very relevant to this Web site. The conclusion is as follows:

This study offers a first empirical investigation into the effects of motivation and SWP presence on individual innovation behavior of FOSS developers. A new metric is proposed to measure individual innovation behavior based on code contribution types: in this scale, algorithm-based code contributions are rated more innovative than reuse-based contributions. In a separate analysis, the effect of motivation and SWP presence on reverse-engineering as a special contribution type is analyzed as well. Another new metric is proposed to measure SWP presence: instead of only considering the legal situation of a jurisdiction, the patent pressure within a software domain is also included. A survey was conducted to provide a new data-set for the empirical analysis.
Concerning the effects of motivation on innovation behavior, strong support can be reported for the following result: Above-average intrinsic motivation (joy and self-expression in code-writing) increases the odds for more innovative, algorithm-based code contributions, while above-average extrinsic (monetary and skills-related) motivation seems to decrease the odds. In connection with reuse-based contributions, the opposite relationship finds moderate support: Above-average extrinsic motivation increases the odds for reuse-based contributions, while above-average intrinsic motivation decreases the odds. The third result relates to reverse-engineering: None of the five motivational factors included in the analysis seem to explain why FOSS developers engage in reverse-engineering activities.
These results emphasize the role of motivation within the FOSS system. Particularly intrinsic motivation appears to not only keep this system alive and kicking, but more of it also seems to lead to more innovative contributions. Simply put: ‘Programming challenging new stuff is fun’. On the other side, it appears that reuse-based contributions with a lower innovation level – often needed for ‘the last mile’ before a program is end-user-ready – can be supported by offering extrinsic incentives. What still remains opaque from a theoretical point of view is the question why developers engage in reverse engineering. A broader analysis of motivational factors is needed here.
Concerning the effects of SWP presence on innovation behavior, the empirical results are less conclusive. Neither opponents nor proponents of SWP will find support for their positions that the presence of SWP decrease or increase respectively the odds for innovative, algorithm based contributions by FOSS developers. None of the three metrics used to capture SWP presence lends sufficient support to either side – be it positive or negative. Support, however, is found for a hypothesis related to reverse-engineering: stronger SWP presence attracts reverse-engineering based contributions by FOSS developers.
These results confirm several challenges for research as well as for policy-makers. Both continue to lack a broad, sound empirical foundation to discuss the effects of software patents on FOSS innovation.
For researchers, the challenges raised in this study are (a) to develop an easy-to use yet nontrivial metric to measure the presence of software patents empirically; (b) to quantify their effect on the FOSS system, helping policy-makers make better-informed decision. For future research, it would be useful to verify some of the links argued for in this study using other data sources. CVS logs have been used in the past for code contribution analysis. Maybe the innovation metric proposed here could be helpful in that regard.
For policy-makers in innovation and intellectual property policy fields the challenges are (a) to decide whether FOSS deserves a special case when debating software patents because of its unique way of producing software for the common good; (b) to continue treading carefully in the field of software patents before jumping to legislation. The FOSS market has reached a size where harm cannot be considered collateral damage as it may have in the past. Although the results have not shown systematic harm to the FOSS communities, there is still no empirical support that the traditional arguments in favor of patents do hold for the FOSS system – or software in general as some continue to argue.
Some limitations of the study deserve mentioning. First, taking the individual developer as unit of analysis ignores explanatory factors on project level that can also influence innovation behavior, such as project size and organizational structure. The larger a project is, the more elaborate its organization structure becomes, the more contributors tend to specialize in their contributions – up to a point where dedicated roles may emerge. Such a division of labor biases the measurement of individual innovation behavior. Second, it is impossible to investigate whether software patents caused projects to stop by only surveying ‘alive’ projects from SF as it has been done in this study. To obtain a complete picture, it is necessary to run a dedicated study on failed projects – even if the response rate will be very low.

No extraordinary claims are made, but it is clear that a correlation does seem to exist. If a legislator wishes to encourage software freedom and local production, then software patents would only act as a deterrent. They are detrimental.

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  1. Jose_X said,

    June 10, 2010 at 10:06 pm


    Alright, software patents have not been enforced heavily against open source developers (part of the reason is that software patents are very indecent and more so when attacking open source developers, and also patent owners have not yet gotten enough courage to attack directly too much because of shaky legal ground and fear of backlash); however, it’s important for competition’s sake (and consumers’ sake) that commercial entities supporting FOSS also not be vulnerable to patents assuming that noncommercial FOSS got an exception.

    Does it make sense to protect the large commercial companies against competition from smaller commercial groups? When essentially all products violate many patents (as is the case for software), the big folks win hands down. I thought the patent system was to subsidize (if inefficiently) the small folk against the larger in a time where there were fewer education, collaboration, inventions, etc, and everything moved much slower (heck, there was no email, “overnight” snail mail, or even one-month snail mail in some cases)?

    Software patents abridge (US) First Amendment rights. Monopolies are stifling. The US law is extremely broken (eg, hurts progress much more than other saner implementations of patents would). Creating artificial scarcity (the concept of it) is likely a very bad deal for society especially when people can work side by side in competing solutions without taking away from each other (and actually feeding each other) except in minor indirect ways that are actually seen as a positive of competition (competition for talent and for consumers). ..However, it’s good to get more research support along the lines of measuring software patents’ potentially very very stifling effects.

    [See also http://www.unionsquareventures.com/2010/02/software-patents-are-the-problem-not-the-answer.php ]

    Dr. Roy Schestowitz Reply:

    I thought the patent system was to subsidize (if inefficiently) the small folk…

    Someone once rebutted/corrected me by arguing that the patent office was designed to encourage publication of ideas in exchange for a temporary monopoly (so that ideas don’t die with their inventor who uses trade secrets).

    Jose_X Reply:

    If something brings in more money as a trade secret, then it will stay a trade secret.

    On the other hand, if the trade secret had marginal value, then the patent route is a blessing.

    But worse, patent authors want broad patents to maximize the gains from patents, and this leaves lots of room to keep all your implementation details a trade secret (assuming you even have implementation details since others might be doing a much better job than you in this area) AND still get the broad patent monopolies!

    Supporters of the patent system want legislators and the public to believe they have amazing trade secrets.. and that these will be divulged with patents.


    In any case, for software, the general functionality of something can be discovered through various degrees of achievable reverse engineering as a worse case, so society does not need to sell its heart, soul, and wallet granting patents.

    What is difficult to do is to master the totality of precise details necessary to interoperate acceptably with a large product. Software has many “moving parts” each of which generally requires a high degree of precision that is tough to achieve without an honest effort to achieve clarity and transparency by parties developing at opposite sides of interface points. Patents absolutely do not get this information from inventors. And those wanting to keep the trade secrets purposefully go out of their way to obfuscate and keep a moving target.

    On so many levels software patenting fails that it really is remarkable the staying power of these legal WMD.

    I hope Bilski brings some long-term sanity. Otherwise, lots of wasted effort and money will keep being poured into the WMD race.

  2. satipera said,

    June 11, 2010 at 10:25 am


    I would encourage people to read this, it does contain some interesting points such as how the patent holders are not living up to their making information public side of the deal because of the way patents are described. This also makes me wonder why patent holders are allowed to enforce their patent rights then use NDA’s which completely go against the spirit of public disclosure required by patents.

    The author also goes into some detail about what should qualify as innovation in order to measure it. There is very little about the quality of patents and how and why industry players are enforcing and not enforcing their patents to achieve market dominance.

    The scope of the dissertation is actually very narrow. SW patents are just one of the motivations looked at in relation to FLOSS developers. The real damage being done by software patents to software development at the industry rather than individual level and the way it causes the distorted market to operate are outside its scope and the cause of disappointment.

    Dr. Roy Schestowitz Reply:

    Let’s remember that software patents are bad for small companies regardless of whether they produce Free software or not.

  3. Jose_X said,

    June 11, 2010 at 7:01 pm


    PJ wrote up a great piece here: http://www.groklaw.net/article.php?story=20100522202326865#comments (warning: it is a bit long).

    What I got from this story is that, though it might take a while for bad laws to be repealed, the odds of it happening grow over time.

    I can look forward to being on the right side, even if the courts and legislators may take time to get the idea.

  4. Jose_X said,

    June 11, 2010 at 7:07 pm


    From the overview of the dissertation, it seems a result of the study was the confirmation that when the risks to create go up (when you can have your hard work made illegal), you are more likely to want to spend less mental energy while trying to achieve something more certain, which is the case when we reverse engineer. In reverse engineering, we are also sort of getting back at the unfair system.

    Dr. Roy Schestowitz Reply:

    Not much reverse engineering would be needed if standards were adhered to.

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