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Dec
17

Red Hat joins charge to fend off patent madness

by Rory MacDonald

Current U.S. court ruling could jeopardise the future of software innovation – Linux User & Developer magazine’s news reporter Rory MacDonald explains all…

This article is due to appear in issue 96 of Linux User & Developer magazine.Red Hat joins charge to fend off patent madness Subscribe and save more than 30% and receive our exclusive money back guarantee – click here to find out more.

A group of US companies including Red Hat, Yahoo, eBay, Electronic Arts, General Motors and HP, have joined together to challenge a recent ruling by the U.S. Court of Appeals for the Federal Circuit, which threatens to seriously exacerbate problems in the already highly controversial software patent system within the United States.

The group has filed a brief with the U.S. Supreme Court seeking correction of the standard for inducing patent infringement, relating to the case of Global-Tech Appliances, Inc v. SEB S.A. Under the existing ruling, the Court of Appeals held that organisations and individuals can be held liable and prosecuted for infringing patents of which they have no knowledge. It used a standard of “deliberate indifference,” which it then equated to negligence.

Taken to its logical conclusion, this ruling would effectively require anyone writing software for distribution in the U.S. to run costly patent checks on any ‘new’ concepts, in order to be assured that they were not liable for patent infringement. If the ruling is upheld, it would almost certainly stifle software innovation on a global scale and make development the preserve of corporations with large legal departments and their own patent arsenals available for countersuing.

“The serious problem of bad software patents is exacerbated by the Federal Circuit’s decision. Holding technology innovators liable for inducing infringement of patents of which they have no actual knowledge raises the already substantial risks of innovation, and is counter to the public interest,” commented Rob Tiller, Red Hat’s Assistant General Counsel for IP. “The Supreme Court’s willingness to address this issue is encouraging, and its decision could be a meaningful step to improve this important part of the patent system.”

The Supreme Court challenge is likely to be scheduled for sometime this spring.

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    • Don Dave

      I just read a blog same as your topic with the blog of (http://www.generalpatent.com/) I enjoy reading both– I’m often amazed by how much you dictated each informations that we really needed. Nice one, thanks for sharing this to us.

    • mmenaz

      There are no “bad software patents”, because ALL software patents are BAD. The patentability of ideas has to be imediatly and coplitely removed, they harm innovation and prevent people to program if not part of a multimillion corporate.
      No one can avoid infringe sw patents, being monopoly on abstract ideas that everyone can have on his own at any time. Check if someone else have registered that idea is impossible, since there are thousands granted every year no one can read and understand in it’s all life. And even if you read them all, being wrote in a very broad and legal language, you will never be sure you don’t infringe.
      Why is so difficoult to understand the harm to the whole world, the whole innovation, the whole freedom of develop the idea that I’ve on my own without being sude just because someone else has grand a “monopoly for 20 years” about the same idea? And on the basic pieces I HAVE to use to produce modern software?

    • Jose_X

      Software is a set of instructions. It’s information.

      The patent system disrespects independent creation (unlike copyright). It is so costly and time consuming (unlike copyright) that only the wealthy folks can get software patents for a fraction (if any) of all their ideas. The patent system ignores open source (see this comment http://opensource.com/law/10/11/software-too-abstract-be-patented#comment-2807), and open source can be copied by wealthy folks and made into patents (so very smart people must pay the price but can’t benefit from this system). Patents are description based (unlike copyright) rather than defining the actual implementation. Patents require you to know or look far and wide to find a way to prove prior art exists (unlike copyright), which is very costly. Despite the patent examiners not being able to cover a tiny fraction of prior art (see earlier link), they have the power to put all the burden of proof on the defendant. Likely guilty, judge, because we got tired of looking so decreed it so. This is absurd. The US government can’t afford to find the prior art exhaustively (at least not for software), yet each defendant is expected potentially to cover a very large fraction of it once a patent examiners awards a patent?!

      The inventiveness bar to getting a patent is ridiculously low and this does not work in any field where anything but a small number participate and also where costs are high. “Non-obvious to a person having ordinary skill in the art”!!! This means if we have 1 million people, the bell curve suggests a great bunch (maybe even half or 500,000) found the invention obvious (never mind merely “a bit difficult”) yet will be barred for 20 years from developing in this area!! How many geniuses are going to be handcuffed so that the wealthy patent owner can have a monopoly? Patents don’t work where you have many people that are able to participate. They don’t work for information accessible to anyone. Copyright is for that purpose.

      Software is information. It should be covered, if covered, by copyright, not by patents. Patents are for where few have access, few are innovating, and costs to create, manufacture, distribute, etc, are very high so that a broad monopoly for a long time might be beneficial to society (software marginal costs to manufacture and distribute are $0 in time, money, energy, materials).

      To place patents on software is to place patents on all the experts in the world in any information area in existence where they would like to advance their field by leveraging the greatest information tool known to man, the computer.

    • johna

      “it would almost certainly stifle software innovation on a global scale”

      I know but actually only in America, so… I don’t care. There is a whole other world out there “on a global scale.”

    • Yoda

      It’s all about the money.
      Lawyers make a fortune with patents. They love it. Some of the largest software companies in the world love patents. They can stop any innovation they like for a small price. You bet there is going to be a fight at any change to software patents. Lots of deals (under table money) no doubt.
      Clearly software patents are wrong.

      Lets look at some of the arguments for software patents.
      - Source of income for the American economy
      - Millions of dollars already invested by companies. What is going to happen to that money? A refund?
      - A great source of income for the patent office
      - A great source of income for Lawyers (I said that already)
      - …

      When it comes to the American economy, it’s like “Save the Children”. All sense goes out the window. How are you going to show that its bad for the American economy to have software patents? Might be bad globally but what does that matter.

      “Despite the patent examiners not being able to cover a tiny fraction of prior art (see earlier link), they have the power to put all the burden of proof on the defendant.” – That’s like saying if someone was killed in your neighborhood it was your fault. Prove otherwise. This is really, really bad logic. Doesn’t anyone have a grasp of reality in the patent system. I feel like I am in a maddening illogical dream when I read stuff like this.