Weekly wrap-up: Innovation Act could thwart patent trolls, open source needs more attorneys, and more | Opensource.com

Weekly wrap-up: Innovation Act could thwart patent trolls, open source needs more attorneys, and more

Posted 25 Oct 2013 by 

Ginny Skalski (Red Hat)
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Open source news this week:

October 21 - October 25, 2013


What other open source-related news stories did you read about this week? Share them with us in the comments section. Follow us on Twitter where we share these stories in real time.


  • Innovation Act could thwart patent trolls. A new patent reform bill introduced in the U.S. House of Representatives this week was called “the single most important patent reform or high tech bill this Congress considers” by cosponsor Rep. Lamar Smith. Called the Innovation Act of 2013, the bill is designed to prevent abusive patent troll litigation, reports the Electronic Frontier Foundation (EFF). The proposal includes requiring patent holders to detail the parties that would benefit from the litigation, requiring the loser in a patent case to pay the winner’s court fees, and more. The EFF outlines the key elements of the legislation, saying: "Taken together, these reforms would make life much harder for patent trolls and make the world safer for true innovators. Of course, today’s discussion draft is not perfect."
  • Your Honor, I’d like to defend open source. The legal complications that come along with open source software are creating a need for more tech savvy lawyers. During his opening remarks at LinuxCon Europe, Linux Foundation Executive Director Jim Zemlin talked about how the open source community would benefit from more attorneys who understand how open source collaboration works, reports infoworld.com. The article discusses how the standardization of things like contributor agreements could also help when licensing issues arise. It’s a great read if you’ve ever struggled with open source-related legal issues.
  • Presenting the new OSI director. The Open Software Initiative (OSI) announced this week that it hired its first-ever full-time management appointment in its 15-year history. Patrick Masson will begin serving as the general manager for the non-profit OSI on November 8. Masson spent 20 years in higher education, most recently serving as the chief technology officer for the University of Massachusetts’ online learning provider, UmassOnline. OSI is the steward of the Open Source Definition (OSD) and the community-recognized body for reviewing and approving open source licenses. OSI board director Deborah Bryant said: "The hiring of a general manager signals the board's deep commitment carrying out the non-profit's mission."
  • "More geeks in government." The open data movement in U.S. government is gaining more momentum. This week, The Guardian featured a column detailing different ways U.S. cities are using open data, saying: "Access to information is no longer a nice-to-have, rather it is a standard." In related news, a San Francisco Chronicle columnist detailed his experience this week with the city’s SF311 mobile app, which allows users to quickly report improvements that may need to be made to their neighborhood, such as reporting graffiti and potholes. The article also pointed out the very cool motto of San Francisco’s chief innovation officer Jay Nath: "More geeks in government." Meanwhile, three U.S. cities signed open data policies into law this week: Louisville, Kentucky; West Sacramento, California; and Oakland, California. The Sunlight Foundation has details on these latest cities to join the open data movement, as well as a map that shows other cities that have put open data policies to work.

Hat tip to opensource.com community ambassador Robin Muilwijk for putting a slew of open source stories on my radar this week. Thanks, Robin! Feel free to share the open source stories you found interesting this week in the comments.

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11 Comments

Paul Morinville

Thomas Edison was a Patent Troll. If this bill becomes law, there will be damn few Edisons in the future. I'm an inventor and entrepreneur. So called Patent Trolls are essential to start up companies and innovation in general. Trolls help companies by converting an asset into cash that can be used to build products, extend markets and create new businesses. This function of Trolls also helps to drive valuations of start up companies and encourage investment into them because the investors can recoup losses by leveraging the patents in the event the company fails. If we damage this investor/inventor relationship any further, we will kill patents altogether.

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Purple Library Guy

Gosh, that's a lot of unsupported assertions. All of which also seem to be false.
Thomas Edison was an unscrupulous man, to be sure, and certainly not the lone genius of mythology. But he and the lab he managed developed many real technologies from idea to usable device; he was no patent troll.

So called Patent Trolls are essential to nothing; they are a hindrance to start up companies and innovation in general. They take advantage of the fact that the modern patent process, particularly for software, requires no actual invention, merely the ability to describe concepts that people might need to incorporate into actual inventions. They then wait until some poor sap, generally unaware of their existence, invents something real and starts to sell it, and present the ultimatum: Let me suck your blood or I'll get the courts to open your veins for me, because my vague patent which has nothing to do with any working invention or even any very specific idea for what an invention might be like, has a section which overlaps conceptually with the real thing you did. Patent trolls add no value to anything, they are leeches.

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Open Source Champion

"If we damage this investor/inventor relationship any further, we will kill patents altogether."

I make a distinction between patents in general and software patents in particular. I have no prejudice against patents in general but I am strongly in favor of abolishing software patents entirely. That said, if damaging investor/inventor relationships further will kill software patents altogether then I would like to damage investor/inventor relationships further.

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Steve Stites

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Paul Morinville

There are a few software patents that I would get rid of too - one-click, auction on line, etc. However there are some that are inventive and make markets. Would you kill them? If killing them meant killing all other patents, would that be worth it?

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Open Source Champion

Yes, I want to kill all software patents. I wrote software for years before software patents became something other than a novelty. Copyright has always worked well. Software patents have never done anything positive and in the last 15 years or so have become a major drag on the software industry.

I have nothing against patents in fields other than software. I only raised the idea of abolishing all patents as a way to get rid of software patents as an extension of your logic. If the choice came down to keep all patent types including software patents or abolishing all patents period I would choose to abolish all patents. But I seriously doubt that any such choice will arise.

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Steve Stites

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Paul Morinville

The choice is to abolish all. Nothing distinguishes a software patent from any other patent. Like it or not, so called patent trolls are an integral part of the patent system for software and other patents. Patent Trolls are investors. Most of the legislation on the table will all but wipe them out. If there are no investors to fund patent suits, there will be no patents except in large companies for defensive purposes. It's pretty simple.

I like many of the new pharmaceuticals especially the patented drugs my dad takes for his diabetes. They have extended his life and made it much more tolerable. Perhaps there is a better way to address the perceived problem other than killing the entire system.

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Open Source Champion

"If there are no investors to fund patent suits, there will be no patents except in large companies for defensive purposes."

If all large companies hold software patent portfolios for defensive purposes only then what are they defending against? Not software patent trolls because trolls have no product to counter attack with defensive software patents. IBM started the software patent wars by amassing a large software patent portfolio and then aggressively forcing "cross licensing" agreements with companies holding smaller portfolios of software patents. Other companies got on the software patent bandwagon both to defend against IBM and to find their own cross licensing victims. The current aggressors in the software patent wars are IBM, Apple, Oracle, and Microsoft. The result is a less than zero sum game which is a net drag on the software industry.

Whatever happens to software patent trolls only affects the larger software patent wars in that the big aggressors would be relieved of a nuisance if software patent trolls were eliminated. So the large companies have been lobbying Congress to deflect any software patent reform to only apply to software patent trolls.

Congress has decided to pass some new laws to curb patent trolls. Congress has also decided that they will not single out software patents as a special problem. So the new restrictions on patent lawsuits will apply across the board to all industries. Personally I have no idea whether the industries other than the software industry will be benefited or hurt by the proposed anti-troll laws.

I do know that the political furor over software patents will not abate with the passage of the anti-troll laws. So it is possible that you will see your nightmare of all patents being abolished come true by Congress passing a series of laws to whittle away software patents to nothing and apply the new laws across the board to all patent types.

Perhaps you should lobby Congress to abolish software patents entirely in one fell swoop to save the rest of the patent industry.

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Steve Stites

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Purple Library Guy

Pharmaceutical patents are an interesting case. When one looks closer, though, they seem to me a pretty doubtful argument for the modern patent process. For all the masses of money pharmaceutical companies have, the majority of research is still done by public institutions. An awful lot of pharmaceutical company patents, particularly the more important ones, are actually based on public work.
The pharmaceutical companies do quite a bit of work creating lots of molecules that are variations on molecules they know to be active and seeing what they do. And they do lots of work testing drug candidates once public research has pointed to those candidates. But the former could readily be replicated by someone else, and would probably be worth doing for profit without patents. And the latter might be better done by the public sector in the first place, since for-profit entities cannot be trusted not to fudge their results--their incentives to exaggerate benefits and understate dangers are too great. This problem has led to many deaths--tens of thousands for Vioxx alone.

I strongly suspect if you looked closely at those patented diabetes drugs your dad takes, you would find papers by university and NIH researchers at the base of their development.
Eliminate patents and new pharmaceuticals would continue to be developed. It's just that a large private tax would be considerably reduced, leaving more money for other areas of health care and more effective research by other sorts of researchers.

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Purple Library Guy

Actually, there are distinctions between software patents and many other patents (although not all). Traditional patents are on physical devices, and the rule used to be no tangible invention, no patent. Patents are also traditionally specific. The intent of patent law was to cover a fairly precise invention. Part of the "fostering innovation" part involved the two-pronged limitation: First, the condition for gaining the patent protection was revelation of the device's design, so that a third party would be able to replicate it. Second, the patent would not cover a further improvement of the device, or a different device which performed the same function in a different way, only the device itself. Patents did not cover concepts and thus did not block further innovation.

Software patents in effect break all those rules. They don't cover a particular device. They don't require revealing the code in order to gain protection. And they cover the concepts described in the patent, such that if someone writes different code that does what the patent describes in a different way, the patent still blocks them from developing and selling their different "device".
Some other patents do the same. I can't recall if there are still "business method" patents, but those had some of the same objections. But most patents do not, at least in theory. So yes, software patents are rather different from most others.

Mind you, I don't actually support patents in general. Most of the greatest innovation comes from collaboration, information sharing, and building on the concepts others come up with. As technology empowers worldwide, open collaboration more, we're seeing that process gain strength. Patents are generally a roadblock to this process, and I don't think any gains from agitating the profit motive to a higher pitch are worth that drag on research and innovation. But software patents are certainly among the worst, and qualitatively different from many others.

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Paul Morinville

I agree with you that large software companies are behind the current round of so called patent reform. They steal technology and then disparage the inventor when he seeks redress. The problem is that killing trolls will only make it worse for smaller tech companies.

Big companies still have their patents and can crush small companies if they want. Nothing in the bills stop this.

What it stops are investors who enforce patents. Those patents generally come from people like me, individual inventors, and also from failed start-ups. The third place they get them is from big companies when the technology is not core to their products.

There is no reasonable way to omit software from patent protection without effecting just about everything else. No hardware can run without software and almost every device including your refrigerator has a processor of some sort now. You kill one, you kill the other. So software patents are a fact of life unless all patents are dead.

Perhaps our discussion should be more directed toward those large entities who steal inventions and kill start-ups. Under the current legal framework, a large company can get an injunction against a smaller company with ease, but not the other way around. Large companies are better positioned both financially and operationally to attack smaller companies - especially opensource companies operating on a razor thin margin - than the small companies are.

Perhaps the opensource community should file more patents.

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Ideas Man

Surely if there were a Ideas - database, that kept track of the ownership of even new thoughts and ideas (with dates), that were all open source. It would make it possible for any one to pick up some one else's concept and turn it into a product, with the ability to reward the initial seed person with some type of royalty ??

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Ginny Skalski is a blogger and social media strategist. A former municipal and state government reporter, Ginny is passionate about local politics, journalism, and learning more about ways the open source movement can change the world.

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