Patent reform bill may raise questions for agencies using open source

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.

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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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  • Never ceases to amaze me...

    how ignorant or corrupt the legislative branch is.

    The main benefactors in the current system are the Lawyers and somewhat the Patent Office.

    To think the first "filler" gets the rights is beyond ludicrous.

    There is hardly anything in software that is "non-obvious" to those skilled in the art and yet they grant patents on standard programming practices. When a programmer comes across a need to do something there are several ways to do it and it's ridiculous the think it could be patented.

    One real problem in the software industry is that there are people who produce software by copying other peoples software and then give it away for free via Open Source. The reality is that neither the current Copyright laws nor the Patent system are suited to cover software programs. (Granted that Copyright Law covering source code works well).

    I would guess the nobody is going to take up coming up with a new modern system. You can make the current system better by making the Patent Office and the Patent fillers liable for Patents that shouldn't have been granted and at the very least, limit a Software Patent to be 3 or 5 years max (That's a full PC generation).

    The Lawyers, Corporations and the Representatives that pander to them need to be taken out of the Government for the benefit of the people. Maybe it will take a new revolution - I'm ready!
    Don't Ask Me
    • filler

      I may not be a good speller but, <lol>, I do know how to spell "filer". My fingers sometimes have a mind of their own.
      Don't Ask Me
  • We need radical patent reform

    Patents are supposed to encourage innovation by giving the
    inventor a monopoly for a period of time. The times were set in
    the whip and buggy era, and as technology has accelerated,
    they've gotton longer, not shorter.

    Congress needs to go back to basics: reward real innovation with
    a sensible monopoly term. It sure as hell doesn't reward
    innovation if it's the _filer_ who gets protection, not the inventor.
    That's just more corporate welfare.

    Patents need to:
    -- actually be innovative. Make this hard. Get 3 of 5 experts to
    agree that it's new and non-obvious before it's issued.
    -- actually be put into use. No patents on paper ideas. You
    have to produce something and sell it on the market to seal the
    patent.
    -- have a term consistent with the market it's in. 5 years is
    enough for software.

    I also think there should be fair value licensing REQUIRED when
    any patent is issued. You get to profit from your invention; not
    prevent others from using it.
    springerj
    • Petition Congress

      Why not start a petition to have congress to enact these common sense points. I wouldn't think anybody would have a problem with them. A step in the right direction.
      Don't Ask Me