Friday, November 26, 2010

On Software Patents - Open Letter to Orrin Hatch

Mr. Hatch,

This is one more letter to explain the problem with software patents. As you can see, I've put this in the category of "ethics" because there have been a lot of difficult and thorny issues related to patents, and particularly with software patents. Today, I offer you an example of a patent granted to a patentee that is based on someone else's work. Check out this link here:

http://x264dev.multimedia.cx/archives/589

Here, we have an open source software developer who posted code to an open source project, only to find that it had been copied, step-by-step into a patent application. This is an abomination and characteristic of people who oppose open source software, for they are seeking to destroy open source software with patents.

As a member of Congress, you are likely to be aware of how much the US government relies upon open source software. The developers of the website for the White House use open source software. The defense department has their own sourceforge site for hosting projects. Even the NSA has their own version of the Linux kernel.

The behavior cited in the website linked above is a perfect example of why the bar for patent defenses needs to be lowered to allow for easier invalidation of patents. Even Microsoft is petitioning the Supreme Court to lower the bar as seen here:

http://www.patentlyo.com/patent/2010/08/microsoft-again-asks-supreme-court-to-lower-clear-and-convincing-standard.html

The argument is that the patent office is not perfect. They cannot know everything, and if patent applicants are going to steal whatever they can from other sources, then the presumption of validity needs to be re-examined. This is particularly so when patentees steal from the open source software community, a wellspring of innovation that does not seek patent protection, except only as a defense against patent trolls. They will not prosecute patents against others, but they will use their patents to defend themselves from other patentees. A good example is Google. We don't read headlines in the paper every day of Google suing someone. But Apple, Microsoft, Oracle and others have been pursuing claims against open source enterprises such as Google. Google runs all of their servers on Linux. They make their own databases. That's innovation.

For a rather humorous examination of the problems of software patents insofar as they relate to open source software, see this brief speech by Eben Moglen:

http://www.youtube.com/watch?v=6YExl9ojclo

I also think that there need to be civil penalties when patentees knowingly and willfully attempt to patent common knowledge or similarly unpatentable material. That means that they need to check their sources and provide all prior art available. This example would be obvious as open source software commits are available worldwide and anyone with a browser and a search engine could find it.

I hope you find this letter enlightening on the subject of patents and consider this information as you and your fellow Congressmen draft legislation to improve the patent system.

Thank you.

Scott Dunn
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