Wednesday, May 16, 2007

Patents update - sanity check? 

Since December when I posted my original linkage of the 22 patents referencing my original two - there are now 4 more - making a total of 26. Not bad in 5 months of elapsed time.

However there is now some ray of hope that there may be a halt called to this continuing "Alice through the Looking Glass" world of software patents.

A recent ruling by the Supreme Court has raised the bar on what is to be accepted as "obvious". eWeek reports here more details -

== Lawrence Rosen, a partner in the law firm Rosenlaw & Einschlag and well-known open-source law expert, is inclined to agree. "As of April 30, many fewer patents will be valid under the Supreme Court's newly articulated obviousness standard for patentability. Software developers and distributors are at much less risk of being sued over obvious patents."

Another result, according to Rosen, should be that "[t]he quality of issued software patents will rise, but there will be far fewer of them." ==

Then eWeeks Jim Rapoza's column on the case notes -

== In the case, which dealt with a patent for adjustable gas pedals in cars, the Supreme Court said the previous tests for non-obviousness were too weak and easily circumvented by unoriginal ideas. With their ruling they have set a much higher bar for showing that an idea isn't obvious and have made it easier to use prior art to prove the obviousness of an idea.

Even better, rather than sending the case back to a lower court, the Supreme Court ruled on the gas pedal case immediately using their new benchmark for obviousness. ==

Microsoft General Counsel Brad Smith interviewed with Fortune Magazine stated that many established and familiar open source tools violate up to 235 of its existing patents.

One immediately wonders just how many of those erstwhile Microsoft patents can stand up to the new measures of "obviousness"?

Brad did layout the areas - all of which sound extremely full of "obviousness" here.

== He says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68". ==

Not that any one single entity can afford to take on Microsofts lawyers to find out. However the article further notes that there are also open source groups aligned together to protect themselves - such as the Free Software Foundation and the Open Invention Network.

Come to think of it - the software I just typed this with, and that you are reading this with - also probably infringes on lots of patents too!?!

Time to jump back into the Looking Glass...

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