That's why it's so good the vast majority of web technologies are open/open source. I can't imagine an Internet where most of the technologies would be proprietary. It's for the same reason why I'm so up in arms against proprietary video codecs, and why I hope we'll move to an open source one sometimes soon.
Daala just came out (hopefully DarkShikari will evaluate and speak up on it). What would be even better is to at least take RMS's suggestion regarding how to handle existing software patents while we wait for the legal system to finally get rid of them.
If one is careful you can even take steps to actively invalidate prior art. You don't need to just make a new standard either, we've already seen people get away with patently new ways to do the same old thing.
Look up Open Invention Network when you get a chance. The idea is to simply publish the general techniques you use to solve a given problem in a fashion that's easy to search, as a defense against people later trying to patent the same idea.
Yes, for sure. However, it may infringe on existing patents, and it's often quite difficult to determine that in advance. But I agree, among OSS's many virtues are that it establishes what's known and prevents future patents on those techniques.
Most possible system/standards are already covered by multiple patents. "A system for electronic transfer of information", for example. I made that up, but there are many super broad patents like that.
The concept has to be novel to be patentable. You cannot get a patent on something that is already publicly known.
Existence of information on a publicly accessible website (even if not indexed by a search engine or behind a pay wall like for a journal publication) is considered to be public knowledge and a patent cannot theoretically be obtained on the concepts covered by that website.
Yes. However, what's novel is subjective. The patent clerk may not care and has only a few hours to look up prior art. Once you've got the patent you get a jury in Eastern Texas to decide; that's where many of the cases end up. Something that's obvious to us will often be novel to them.
Those are indeed the practical issues the system is facing.
>> Something that's obvious to us will often be novel to them.
It should be noted though that the requirements for patentability include the invention being non-obvious to those "skilled in the prior art". The jury deciding upon a case may not be skilled in the prior art themselves, but they need to judge if those actually skilled in the prior art would have found it obvious at the time of the patent's priority date. But again, that's just theory facing the practical issues you noted.
Hmm... that makes me wonder what would happen if the system required the jurors to be skilled in the relevant art. I suspect that even if they limited that to people listed as inventors on at least one patent in the relevant area, that the result would be dramatically anti-software patent compared to the status quo.