Improving software patents and alleviating fears that they will be leveraged against free and open source software creators and users has been the focus of a plethora of recent efforts, including OSDL's Patent Commons Project, the Open Invention Network, and now an initiative with the USPTO to improve patent quality. There is still some skepticism over the value and effect of the efforts, but backers claim they're necessary to push patents out of the way of open source and innovation.
The USPTO's goal of the initiative is to improve the OSS community's understanding of what qualifies as "prior art," according to USPTO spokesperson Brigid Quinn. Quinn says that clearer qualifications will allow the OSS community to document its software repositories properly, and possibly make them available for use by patent examiners conducting their work.
"Examiners would then have available to them another source of prior art to help evaluate software-related patent applications," Quinn says. "The more relevant prior art available to examiners during examination, the better the quality of the patents."
Its position as the top patent holder in the US made IBM a natural place for the USPTO to turn to in its quest to improve both the process and quality of patents, says Bob Sutor, IBM's vice president of standards and open source.
"The Patent Office came to us," Sutor says. "With the number of patents we have, we have a very close relationship with the Patent Office [and know] what's working well and what's not. IBM feels responsibility from its patent leader position to help drive this forward."
Sutor also says it makes sense to involve OSS communities and companies in the effort that he described as "very much a practical application of technology, and more importantly, community."
OSDL General Counsel Diane Peters says that external forces are putting pressure on both the USPTO and Big Blue to initiate the latest patent effort, which comes on the heels of a new patent commons library for patent pledges and related information launched last year. Peters says that both the US Congress and the software industry are pushing the USPTO for faster issuance or denial of patents, as well as for better quality patents, given the office's reputation for issuing what are sometimes questionable intellectual property rights.
"IBM is also under pressure," she added, indicating that while there is little doubt of IBM's support of open source, it is not lost on anyone that the technology giant is the biggest patent holder of them all.
"They have to demonstrate they're working to solve the problem," Peters says. "We certainly do want to leverage those two pressure points for the benefit of free and open source software. This is very needed to up the level of confidence users have in open source software. Secondly, it does, in fact, reduce the risk."
Although some have questioned the need to address so-called "bad patents" because they can be invalidated or coded around, Peters argues that the overhanging risk, or simply the perception of risk, remains an issue, particularly for OSS users and communities.
Getting pickier with patents
IBM's Sutor says the patent quality initiative consists of three components: a network of experts who can authoritatively assist the USPTO in finding and verifying prior art; a searchable system or database of open source code that may serve as prior art; and a patent quality index that grades patents in the way universities grade students.
Sutor says the network of experts would be useful in dealing with all patents, not just hardware and software. The concept is to develop a community of experts in various fields to verify the originality of the patent ideas and technologies. "With this type of networking, we expect to rapidly establish a system of experts who are recognized in the field," Sutor says. "Over time, this will establish a community of well-known experts, so when [USPTO patent examiners] hear from a guy, they won't treat it as a crank."
The second component of the initiative is intended to serve as a stockpile of open source code in a searchable system that will assist patent examiners as they scan for prior art. "Over time, it's going to be adding enough information to let people find what they're looking for and make code more searchable," Sutor says.
The USPTO's Quinn adds that "another aspect of this initiative is to explore mechanisms for allowing the public to submit prior art that could be considered by examiners during the examination process."
Quinn points out, however, that OSS repositories are not currently well annotated or documented, referring to documented dates that are not standardized. She also says the encouragement of alterations "jeopardizes the usefulness as prior art. The repositories are also not organized in useful, searchable formats with supporting functional descriptions."
"The USPTO is always looking for prior-art resources, especially in the field of software. This partnership may serve to be a valuable step to gaining access to software prior art currently untapped," Quinn says.
Calling the first two parts of the effort "the real cornerstones," Sutor described the third component, the patent quality index, as more of a "long-term, visionary" idea. "Think of this as a GPA for patent quality," he says, adding that there is a difference between a patent's quality and its economic value. "One of the main things this is going to do is, where there is murkiness or uncertainty that can generate FUD -- if this really cuts through all the extra junk in the system, we can more clearly understand the relationship between patents and open source. It will draw the connection more clearly."
Will it work?
While OSDL's Peters indicated that the patent quality initiative and other patent-focused efforts will help alleviate fears that patents will be leveraged against open source, others says there is danger in providing such comfort.
Software developer and patent opponent Florian Mueller says, "Those patent pools and prior art initiatives aren't harmful per se, but the intention behind them is to give people comfort when there are serious reasons to be worried and to push for a legislative ban of software patents."
Mueller, the founder of NoSoftwarePatents.com and a key figure in the fight against software patents in Europe, says the efforts might reduce the number of US patents that are granted, given prior art. However, he added that those are the kinds of patents that can be invalidated anyway by later proving that prior art existed at the time of the patent application.
"The patents that really give reason for concern, such as the Eolas patent or Microsoft's File Allocation Table (FAT) patents, survive any prior-art check, so they can't be prevented by that initiative," Mueller says. "So far, the users or vendors of no major open source program have been successfully sued over a patent in a way that made headline news, but the day it happens, the problem will be understood by many, and people will then look at those patent pools and prior-art libraries and realize that those don't solve the patent problem to any meaningful extent."