Patent reform bill may raise questions for agencies using open source

Summary:Government agencies relying on open source software may be particularly interested in patent reform legislation introduced by Rep. Lamar Smith. While the bill largely satisfies the needs of the pharmaceutical industry, it does make a number of changes to software, as well. And there are fears that it strengthens the hands of software publishers with deep pockets while making smaller players more vulnerable.

Government agencies relying on open source software may be particularly interested in patent reform  legislation  introduced  by Rep.  Lamar Smith.  While the bill  largely satisfies the needs of the pharmaceutical industry, it does make a number of changes to software, as well. And there are fears that it strengthens the hands of software publishers with deep pockets while making smaller players more vulnerable. In an article on News.com today, Declan McCullagh writes:

What if a company launches a patent attack against open-source programmers? One study released last year estimates that Linux infringes 283 patents, including 27 held by Microsoft.

In a stark warning that patent litigation could open another front in the Linux-Microsoft wars, Mitch Kapor, chairman of the Mozilla Foundation, predicts that the software colossus will wield its fast-growing stockpile of patents against Linux. (Insurance for Linux users is already available.)

Michael Tiemann, president of the Open Source Initiative, said that open-source programmers--especially hobbyists or people without resources to search patent databases--are vulnerable to writing code that accidentally infringes on a patent.

"Any line of code I write could in fact trip across a patent I never even knew existed, and that's a problem for innovation, and it's a problem for open source," Tiemann said.

Most importantly, Smith's bill changes the patent regime from first- to-invent to first-to-file - a change that means that, for instance, Microsoft would win its patent on Apple's iPod software hands down. It also means that open source providers of software to government, OpenOffice, for instance, would have a hard time defending patent claims and monitoring all the claims other companies might make.

"The heart attack that's happening with the patent system is poor patent quality. The patent office is issuing too many patents that don't deserve to be issued," Dan Ravicher of the Software Freedom Law Center said. "The (Smith) bill does a little but not too much, so it's kind of like putting a Band-Aid on the finger of someone who's dying of a heart attack."

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Topics: Legal, Open Source, Software

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