Around 300 BCE, a Greek mathematician, Euclid discovered a theorem on which modern geometry and a fundamental algorithm is based. Euclid’s theorem represents a method for calculating the greatest common divisors between two integers. Since 300 BCE, both Euclid’s Theorem and algorithm have been applied in many fields, including algebra and geometry. But what would have happened if Euclid’s Theorem had been patented? The issue is not whether we can continue to use Euclid’s Theorem without paying royalties, but if software and algorithms underlying the software are patentable. Although software is based on algorithms similar to the algorithm discovered by Euclid, in the United States software is generally patented.
Open source paradigm, explored here, could resolve the software patentability issue, in addition to representing the best economic/social paradigm to apply in the technology industry. Android, Google’s open source operating system, for example, is installed in more than eighty percent of worldwide smartphones, showing that open source strategy is workable. The Web, developed by Tim Berners-Lee, is another of these examples. If the Web had been patented, innovation and the development of technology would inevitably have been compromised. Instead of patent protection, the United States legislature could guarantee software an adequate legal protection through copyrights.
Giovanna Massarotto, Open Source Paradigm: Beyond the Solution to the Software Patentability Debate, 15 J. Marshall Rev. Intell. Prop. L. 647 (2016)