Some Patent-ly Good News

Opinion: For once, the patent system and its abusers are in the hot seat.

In recent weeks, there has been a lot of news about software patents. Some of it has been the same old bad news that we have come to expect—such as companies seeking broad patents on obvious technologies or using broad patents to attack competitors.

But, happily (and definitely surprisingly), there also has been a lot of good news when it comes to stopping the spread and abuse of software patents.

By far, the biggest news on the patent front was a recent decision by the Supreme Court that basically drove a bright, gleaming sword right through the heart of that most-hated beast—the patent troll.

In a unanimous decision handed down in May, the court basically ruled that injunctions should not be automatically granted against accused patent infringers, but that courts must weigh all issues—especially in terms of potential harm (or lack thereof) to the patent holder.

The decision was based on a case involving eBay and Merc-Exchange in which Merc-Exchange had accused eBay of patent infringement, and a lower-court ruling that said eBay shouldnt have to shut down its service, since MercExchange wasnt actually using the patent in question anyway.

This situation will sound very familiar to anyone who followed the Research In Motion-NTP patent saga: NTP similarly filed suit against RIM for patent infringement.

Nearly anyone who followed the case agreed that the NTP patent wasnt valid, but RIM still faced a disastrous shutdown of its BlackBerry network if the court ruled against it. Facing this injunction, RIM eventually caved and paid a giant ransom to NTP.

If the May Supreme Court decision had been in place, there is a very good chance that RIM never would have faced such a shutdown, especially since, like most patent trolls, NTP wasnt actually making anything with its patent.

Thats the best part of this decision: The court isnt saying that injunctions should never be granted, just that there must be some actual harm happening to the patent holder (for example, if the patent holder was actually making a product with its patent and facing competition from the infringer).

But this also means that patent trolls, who make nothing but lawyers, will lose the biggest weapon in their evil arsenal—the threat of an injunction.

This will make it much harder for the trolls to get companies to roll over and fork out the big cash.

There was more good news in May: The European Union Commission said that computer programs will not be patentable. This would be much bigger news, except for the fact that the EU Commission says a lot of different things and often contradicts itself.

It also isnt above saying one thing and doing another. Still, just having such a high-profile group on the record against software patents is a pretty good thing.

/zimages/2/28571.gifClick here to read about how patent trolls should be stopped.

Other welcome news came from—I almost cant believe it—the U.S. Patent and Trademark Office. In May, the USPTO finally put an end to the long and embarrassing saga of Forgent Networks patent claims to the JPEG image format by invalidating Forgents patent.

This case was always a poster child for bad patents in that there was obvious and very public prior art that disputed Forgents claim to inventing JPEG. It took a long time, but one more bad patent finally has been put to rest.

On the subject of prior art, the USPTO also made a nice move by introducing the Peer to Patent program, which will solicit community assistance in finding prior art on patents.

I believe many in the technology community will be motivated to stop bad patent ideas. Hopefully, posting prior art in the Peer to Patent site will do more good than posting it in forums and on Slashdot.

I was even happy to see that the most notorious of all business process patents is facing a little heat, as a New Zealand-based actor was able to get the USPTO to agree to reconsider the infamous one-click patent from Amazon.

But despite all this good news, we still live in a world where software patents dominate the technology landscape and continue to put a damper on innovation and prevent competition that helps us, the customers.

Still, when it comes to patents, Ill take my good news when I can get it.

Labs Director Jim Rapoza can be reached at

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