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By Steven Vaughan-Nichols  |  Posted 2004-10-05 Print this article Print

The Kodak and Sun patent fight is, of course, far from the first case that has made lawyers look askance at U.S. patent law and software.

The "one-click" patent litigation between and Barnes & Noble brought the debate over software patents to new heights, according to Peterson.
"Amazon received an injunction against Barnes & Noble that forced Barnes & Noble to add a meaningless mouse click to its Web site checkout feature called Express Lane. The one-click injunction capped a burst of skirmishing in 1999," he said.

The situation with patent law and software development hasnt gotten any less complex since then. Microsoft Corp.s Sender ID proposal was recently rejected by the IETF in part because of patent concerns. And, in an unrelated situation, Microsofts FAT (File Allocation Table) patents have recently been rejected by the U.S. Patent and Trademark Office thanks to the efforts of the PUBPAT (Public Patent Foundation).

How significant is Microsofts FAT defeat? Find out here. Despite such setbacks, Peterson sees corporate America investing more in software patents.

"I expect that the Kodak case will become anecdotal in corporate board rooms, and pointed out as a really good reason to pursue software patent applications, and even licenses, with renewed gusto and increased funding," he said.

What concerns Peterson, however, is the "chilling effect" this could have on software-related development and innovation. "The closer we get to patenting abstractions, the closer we come to taking ideas and innovations out of circulation—the very thing our system of patent laws was designed to promote," he said.

Beyond the Kodak/Sun case, Peterson expects "software patentability issues to be the subject of intense litigation over the next few years, both in the trial courts and in the federal courts of appeal." "I would not be surprised at all to see the issue reviewed in the U.S. Supreme Court," he said. "It is hard to overstate the commercial impact of a patent office that continues to proliferate software patents, especially with such minimal scrutiny as would explain issuance of the one-click patent and some of its just as ridiculous siblings."

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Steven J. Vaughan-Nichols is editor at large for Ziff Davis Enterprise. Prior to becoming a technology journalist, Vaughan-Nichols worked at NASA and the Department of Defense on numerous major technological projects. Since then, he's focused on covering the technology and business issues that make a real difference to the people in the industry.

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