Patently Fair

Computerworld - At long last, the U.S. Congress has taken up the controversial issue of software patents. Last week, a draft of new legislation was publicly circulated, and a congressional subcommittee held the first hearings on the proposed law, whose primary purpose appears to be -- wait, you may want to sit down for this. Its primary purpose seems to be to save Microsoft a half-billion dollars.
Is that unfair? Well, maybe. Let's say that one of the proposed law's purposes is to overturn Eolas v. Microsoft, the lawsuit in which a jury in 2003 awarded $521 million to a company that said Microsoft infringed on its software patents.
What, you thought patent reform was going to be good for you?
Actually, it might be. Right now, software patents are one of the biggest intellectual-property pain points in the IT industry. And the pain pretty much crosses the usual divides. Big proprietary software vendors, open-source developers and even individual corporate IT shops have to worry about infringing someone else's software patents.
And because of the way the system is currently set up, it's impossible to be sure that software doesn't infringe a patent. Patents aren't like copyrights, where you infringe by copying someone else's work. With patents, you can infringe even if you think you invented a technology yourself. You may never have seen the invention whose patent you've infringed.
In fact, you're likely not to have seen it, since patent applications currently aren't published while the U.S. Patent and Trademark Office is examining whether a patent should be issued.
That means software developers are working in the dark, hoping they won't run afoul of patents they don't know exist. And if a patent is infringed, the patent holder pretty much has the infringer over a barrel. No wonder so many people have lined up against them.
Of course, some of the people lined up against them also favor software patents. Case in point: Microsoft. The company likes some software patents, especially the ones it owns. It hates other software patents, particularly the ones belonging to companies like Eolas Technologies that have been used to hammer Microsoft with lawsuits over the past few years.
So Microsoft has lobbied hard for patent law changes. So have the Intellectual Property Owners Association, the Business Software Alliance and other groups, each with a slightly different agenda. The proposed law has a little something for everyone -- especially Microsoft.
But that's not all bad. Under the draft legislation (which, remember, is a long way from being