Patent front dispatch

If you thought the Blackboard VLE patent was fun, there’s plenty more where that came from: 40.000 US software patents *per year* On the positive side, major IT companies are now clamouring for reform in the US and are signing ever more non-assertion declarations,  which rather exposes Blackboard. Meanwhile, some people in the EU Commission think that software patents might be a good idea after all.

One of the complaints about the Blackboard VLE patent case is that a thorough prior art search on either the history of the VLE (no education patents) or access control or a combination of the two could have seen the patent application thrown out or patent’s scope severely reduced.

If software patents are being awarded at a rate of 839 per day -which happened last month- the chances of a thorough process seem a little remote, though. It also means that the probability of a developer infringing any number of patents when writing any modest piece of code is fairly high. Particularly because these patents are written to be as vague and all-inclusive as possible.

This is commonly held to affect open source and small developers disproportionally (realgeek), since what matters is not whether you infringe a patent (because you will), but whether you’re likely to avoid a lawsuit about that infringement.

That, in turn,  depends on the size of your own war chest (i.e. patent portfolio) and the size of your legal budget, combined with the threat that you pose to someone who is bigger than you now. The Blackboard case illustrates the playground bully tactics of the process nicely.

That train of thought, however, doesn’t explain why the biggest hoarders of software patents are lobbying hard to check the madness and pledging not to assert patent rights over fairly important chunks of their intellectual property (IP).

IBM isn’t exactly a benevolent society, but it still pledged 500 software patents to the open source community and announced that it would provide royalty free access to thousands of patents that covered open interoperability standards in education and healthcare (IBM).

Now they’re making all of their patent applications available for public scrutiny well before they’re even granted (ars technica). Even IP rights champion extraordinaire Microsoft has pledged not to assert a bevy of its patents that are necessarily infringed by implementing a number of webservice specifications (Microsoft).

All of which makes Blackboard’s refusal to do the same with regard to educational interoperability standards on the grounds that it “could invalidate the claim” seem a little … quaint. To be sure, Blackboard have nowhere near as many patents to be generous with as the IBMs of this world, but there is something else going on.

Part of it may be a concern for the preservation of innovation and balance in the market. Another part could well have been prompted by the recent advances of the patent trolls: people with few assets and a couple of software patents. Not scared by threats of a countersuit, one such troll very nearly brought RIM’s BlackBerry to a standstill recently, and another extracted large sums of money from Microsoft.

In the US, this appears to be leading to more momentum behind patent reform (the register). In the EU, by contrast, you may be able to file for and receive software patents, but they are still formally disallowed. Long years of lobbying very nearly legalised them last year, but that was blocked by the European Parliament. Now another measure that’ll be voted on this month could both legalise them, and shift responsibility for them on the judiciary, rather than political institutions (ZDnet).

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