software patents - Page number 4

Much of the problem with the current U.S. patent system involves haze. Whether it is ambiguity regarding what the patent covers or murkiness about whether the technology covered by the patent is actually new, patent plaintiffs regularly use this uncertainty to their advantage. This ambiguity–often planned–allows plaintiffs to leverage settlements against businesses that are forced » Read more

By nature of our interests and where open source commonly intersects the law, we post a lot about patents in the Law channel on opensource.com. And it's been an interesting year for patents.

In May, a verdict was delivered in favor of Red Hat and Novell in an infringement case based on bad software patents owned by "non-practicing entities." Rob Tiller's post on it, Total victory for open source software in a patent lawsuit, was the top article across opensource.com for the year. » Read more

The U.S. Supreme Court recently agreed to hear an appeal regarding the evidentiary standard for invalidating patents. The case involves a judgment against Microsoft Corporation in favor of i4i Limited Partnership. If the Court accepts Microsoft's arguments, it could be good news for the FOSS community. » Read more

The serious problem of proliferating bad software patents was not solved by the Supreme Court's Bilski decision, but now it's looking like it may be part of the solution. The early case law applying Bilski is much more encouraging than expected. The new Bilski test focuses on whether an application attempts to patent “an abstract idea.” That new test has already been applied to reject applications for quite a few bad software patents, and with more lawsuits, it could invalidate a lot more.  To advance on this, we need to figure out out better ways to explain what software is and show when it is an unpatentable abstract idea. » Read more

When the Supreme Court decided the Bilski case, it didn't speak directly to the issue of software patents.  But the Bilski majority  emphasized that abstract ideas are not patentable, and recognized that allowing patents for abstract ideas could hinder innovation.  Thus there's still room for discussion of the legal standard for when, if ever, there should be patents on software.  » Read more

Eben Moglen's keynote address at LinuxCon last week, "Doing What it Takes: Current Legal Issues in Defending FOSS," called for a strategic shift in the free software movement. Moglen, the founding director of the Software Freedom Law Center (SFLC) and one of the principal drafters of the GPLv3, said the economy of sharing and the economy of ownership are not mutually hostile, but mutually reinforcing, then outlined three steps for ensuring the continued coexistence between the free software and business communities. » Read more

Recently the NZ govt announced that it was to remove software from the list of items that can be patented. This decision came after hectic lobbying from the open source community on one side and the proprietary vendors on the other side. » Read more

The Supreme Court case of Bilski v Kappos was billed as a case over business methods, but at its core it was over an application for a patent on software, and the denial of that application sets a good example that may lead to the denial of other software patents. » Read more

The Supreme Court finally issued a decision in the Bilski case today [PDF]. For those troubled by the problems surrounding software patents, the opinion will be disappointing, because it does not resolve those problems. But it would be a mistake to view the opinion as a victory for the proponents of expanding software patents. In fact, there are some aspects of the opinion that auger well for the future. » Read more

One of the most important aspects of the recent trial victory for Red Hat and Novell was a finding that the asserted patent claims were invalid.  This meant that the jury was persuaded by clear and convincing evidence that the patents were improperly granted.  Getting to this decision involved collaboration that demonstrated the power of open source to defend against patent aggression.

For the open source community, it's worth noting with pride that a substantial portion of the prior art used in the case was identified by community members. » Read more

attachments: 

Prior Art Testimony - 2010-04-29