Summary
Just what does "open source" have to do with software patents?

Tim Bray has a new blog entry with his latest Patent Theory wherein he espouses:

In fact, in an ideal world, I’d rewrite the law to allow software patents but require a working Open-Source implementation as a condition of getting one.

But, alas, like all to many people, he doesn't actually make it clear what he means by "Open-Source implementation". Sure, it's clear that he's asking for the source code of an implementation of the patentable software idea. But what about the rest of the points of an "Open Source"(tm) license? Where's the boundaries between what people can/can't do with that software before, during, and after the presumed grant of the patent (or when the patent is overturned)?

Also, Tim doesn't seem to get into the issue of the duration of the patents w.r.t. software... 17 years is an awful long time in the software industry. I've heard a lot of people talk about very short spans for software patents but I keep coming back to 5 years as being a reasonable tradeoff (but that presumes that the PTO gets more or less fixed (but that's a whole 'nother discussion, ugh)).

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