Turn Of The Year: Software Patents

Whatever happened to the Unitary Patent?  Is the hunting season finally open for patent trolls? Have the courts and our legislators finally wised up to the problems of software patents?  After few months to regroup, I'm back and ready to post on ComputerWorld once again in 2014. I now have a collaborator in the form of Alexandra Combes, an independent policy analyst and digital rights advocate. She is a former board member of FFII and is founder of Ultimate Circle, a European think tank fostering a free digital society and more specifically the freedom to innovate. She is known for her work against software patents and we've been discussing the changes in 2013 in that field. Together we've picked topics we think are landmarks of 2013 and portents for 2014.

Unitary Patent

It's been more than a year since the Unitary Patent made it through the European Parliament. Potentially important, the project has so far gone nowhere. While agreement was reached by the Council of Ministers on the creation of a Unified Patent Court for Europe, discussions were postponed and have not yet been resumed.

The preparatory committee set up to co-ordinate the work did launch a public consultation to explore which rules of procedure should apply to the new court. But, in a theme that grew over the whole of 2013, big industrial firms expressed concerns about the potential of the new Court to provide a venue for patent trolling. So far that's been enough to put plans on hold; we'll see what develops in 2014.

Patent Trolls

From an already shaky reputation, patent trolls sank to become public enemy number one for netizens in 2013 -- even the US President accused them of extortion. After months of campaigning from civil society organisations like the ones where your authors volunteer, as well as from a growing number of non-IT businesses that had been attacked for their use of very ordinary software like scanners, the Innovation Bill was introduced to the US Congress and so far has cleared the House of Representatives.

The purpose of this legislation is to get rid of abusive patent lawsuits, notably those that target end customers -- harming their confidence in software producers. Provisions of the Bill include transparency requirements and a 'customer stay' option, which prevents attacks against end users when manufacturers agree to handle the case themselves. The Bill is a good starting point for reform, but some fear it deals with businesses whose only activity is patent trolling while giving a free pass to those who have other lines of business in addition to patents and those who hide behind consortia.

Software Patents

In New Zealand the government showed what leadership actually means in this debate. So that never ending lawsuits finally stop, they announced that software would no longer be patentable. Amendments to the Patents Bill were voted accordingly.

In the absence of such wisdom in the USA, the patent war between corporate giants reached a point of no return in the mobile industry. This led Google to acquire an unprecedented portfolio of trivial patents, committing however not to use them in open source cases unless to strike back.

In 2014, we'll be watching to see whether the Democrats have the guts to follow through and pass the Innovation Bill in the Senate, and for signs that legislators realise they have to do much more in the way of software patent reform if they are to prevent patent trolls of all sizes stifling competition and innovation. If they drop the ball, the resulting escalation of the patent wars could seriously impact the technology industry in the USA, to the advantage of more progressive economies -- even Europe.

Patents In Court

Software patents have been getting a free pass for years, grouped along with the assumption that patents promote research and innovation. 2013 was the year both these assumptions were finally seriously questioned in court, both in the USA and Europe. Notably, the Alice vs CLS Bank suit reopened the case law in the USA concerning whether software shall be considered as an abstract idea (and thus not patentable) or as a valid topic for patents.

Given the current trend in the case, it now seems more plausible than ever that software patents will be as severely restricted in the USA as they are in many parts of Europe. Of course, more reform is needed, but other cases coming to the Supreme Court of the United States could provide impetus. Fortunately for us all, there are plenty of friends of software freedom willing to also become friends of the court.

Overall, 2013 was a surprisingly positive year for open source and software freedom with regard to patents. Realising the harm that can arise from applying industrial-era patents to a post-industrial internet, both courts and legislators are finally rising to the challenge. 2014 could be a crucial year for the meshed society.


Copyright © 2014 IDG Communications, Inc.

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