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Open Critics

The free and open-source software (FOSS) community has been one of the strongest critics of software patents, and in particular some of the more dubious patents issued by the USPTO. So any involvement it can get in fixing things at the USPTO is to be welcomed.

But the FOSS community is not just critical of poor patents. It is critical of software patents full stop. Indeed the GNU General Public License - the keystone licence under which the Linux operating system is destributed - prohibits the inclusion of patented code which places restrictions on it use - financial or otherwise.

When a draft EU Directive that would harmonise patent law across Europe came up for debate, the FOSS community was at the vanguard of opinion that the directive should formally outlaw the patenting of software.

But with these announcements from the USPTO, this same community, with its passionate hatred of software patents, will be in a privileged position to submit code to the USPTO and review patents under some brand new schemes.

Too much information

For example, the USPTO's Open Patent Review is an alert service that tells subscribers of patent applications within a specified field, and will enable subscribers 'to provide feedback to the patent office on existing prior art that may not have been discovered by the applicant or examiner', according to IBM's press release.

Greg Aharonian, who runs the patnews service, reacted angrily to the announcement. 'The alert service, is already offered by others. Anyone really caring about new issued patents can do much of this themselves,' he told us. 'Many in the open source community hate patents to the extent that they never bothered to learn much about the mechanics of patent examination. How they hell are they going to be able to provide pertinent information? Heck, most of them still don't know what a priority date is for prior art. Second, unless this is well managed, it will create more problems than it solves, in that it will create more questionable information [that] someone at the PTO has to sift through to see if there is anything of value.'

A USPTO spokesperson, however, responded: 'Developers and innovators of any technology (inventors generally) tend to know best what is known about their art. To that extent, they can point to where they looked to deal with the problems they have tried to solve. But inventors per se are generally not well versed in how to apply prior art per 35 USC 102 and 103, or other statutes.'

But there's evidence that making any more information available will be at best futile, or even detrimental to patent quality if more of the USPTO's resources are spent in assessing a flood of material submitted as prior art. In spite of an existing database with more than 4m computing abstracts, in the 10 years between 1994 and 2004, the average number of non-patent prior art examples cited per patent never rose above two in many of the software patent classifications. And in 2004, 57 per cent cited none at all.

Given the open-source community's anti-software patent stance, this is particularly relevant, as much of the open-source technology submitted as prior art may not be patented in the first place. Yet it doesn't look likely that there will be much interest in it anyway from the patent examiners, given their track record.

The USPTO responded: 'We are partnering with the open-source community to develop smarter search tools and methods to help facilitate and improve prior art searching in this area so the examiner can be helped and not simply swamped.

'Levels of prior art material are not the issue... The issue is more one of teaching examiners smarter ways of how and where to find the most relevant prior art to do their job right the first time... Further, any prior art resources developed with the open-source community would be searchable electronically.'

Prior art artifice

Which brings us to second initiative. The Open Source Software as Prior Art project is to be a system by which open-source code can be submitted as prior art to the USPTO. Yet historically, there's little to suggest that this will contain much in the way of either patents or prior art.

As we've already said, the FOSS community is not a great fan of software patents in the first place. But in addition to that, one of the key motives behind open-source is to give developers access to and freedom with code that they would not have under a proprietary licence. The Linux kernel, for example, was developed as a Unix-like platform that anyone could tinker with and see how it worked. But in terms of inventions, that technology rested back in Unix.

So, many open-source projects were started out of a desire to have a version of a proprietary software product that offered free access to the code. But in terms of inventions, there is little reason to suppose a version of something else contains much additional technology that might be patentable.

In fairness, that situation is changing, and with big vendors such as Sun and IBM pushing open-source development, open-source development is now as innovative as proprietary software, but it doesn't have a history of being so.

So perhaps that's why we're seeing these initiatives now. We were told: 'The USPTO is willing to learn from any source if what is offered has some benefit for the USPTO, especially

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for emerging areas of technology where expertise in the science and the law are evolving. The USPTO has a history of partnering with the scientific community in emerging areas, such as the biotech and nanotech community, to help deal with evolving issues as these technologies mature. We are now doing the same in the software area.'

IBM's interest in open-source is pushing innovation, but it also has rooms full of patents, and its interest in all things open-source doesn't go so far as to sympathise with the anti-software patent lobby. It's dragging the open-source community kicking and screaming into a 'patent prolific' world - a world where many in the community might just not want to be.

And quite why IBM needs to do this with the open-source community remains unclear. It is already sponsoring the Software Patent Institute (SPI), whose current president is IBM's own Steve Keohane.

Set up more than a decade ago, the SPI claims a mission of 'providing information to the public and assisting the United States Patent and Trademark Office and others by providing technical support in the form of educational and training programs and providing access to information and retrieval resources concerning software prior art.'

Sounds oddly familiar to the announcements by the USPTO and IBM? In fact, the SPI's Executive Director Roland J. Cole, was quite comfortable with the arrangements.

'The Software Patent Institute has always focussed on making pre-Internet materials (other than patents themselves) available for search in electronic form. Most of our materials are from prior to 1990 and did not exist in electronic form until we processed them,' he told us.

'It is our impression that the bulk of the open source material will in fact be material created after about 1990 and material that we have not and are not planning to process ourselves. We welcome increased attention to the material we are not processing by anyone willing to make it available to the general public worldwide, as we have done with our material.'

Indexing Quality

The final piece of the IBM and USPTO jigsaw is the Patent Quality Index.

The index determines the quality of a patent or application based on how well it adheres to patent law but makes no mention of prior art. However the USPTO responded: 'Any internal measure we adopt related to assessing the quality of our actions is b ased on adherence to patent laws, obviously. Some of these laws, 35 USC 102 and 35 USC 103, for example, directly relate to the patentability of claims relative to prior art. Thus, "adherence to patent laws" and "use of prior art" are not mutually exclusive. The latter is included as a part of the former.'

This sounds like something that should have been done years ago, and one has wonder why it wasn't. After all, a successful tool of this nature would weed out many of the dubious patents already issued.

The Course for the Source?

These initiatives are nice, but right now only in the way a biscuit is nice with a cup of tea. It seems that the real reforms have to come from within the USPTO before these new mouthpieces for the open-source community grow any teeth.

The open source community will probably jump on this opportunity as a way to do something about the patent problem. After all, look what a powerful tool the Groklaw site has become. When Unix company SCO threatened the future of Linux with its suit against IBM, Groklaw harnessed the community to scour, analyse and make public all the evidence it could find. It successfully undermined many of the SCO's claims and was equally invaluable a resource to IBM's lawyers.

But that didn't make the community legal experts. The community needed the site's indefatiguable Pamela Jones with her paralegal background for guidance and then it was IBM's lawyers which assessed exactly what they would use in the court room.

Similarly, these new initiatives won't make patent examiners of the open source community either. But then the USPTO says it isn't asking that. 'We are not partnering with them to help us assess prior art per se, but rather to share with us their experience in using prior art,' we were told.

But it still needs the USPTO to put in place the resources so that it can act on the information the community subsequently supplies. SPI's Cole told us, 'the last time we ran the numbers (number of examiners, number of applications, average time between filing and grant), the average patent application could receive no more than about seven hours of search time... So simply making more material available, even in a single, electronically searchable database is not enough.'

The USPTO already has access to databases of millions of prior art abstracts. Soon it will have many millions more. But it doesn't mean that it will effectively use any.

If there is one positive thing to draw from this; if the free and open-source software community is to have a system for submitting code as prior art direct to the USPTO, then it has a means to stay true to its ideals.

IBM and others may be driving innovation in open-source software, but that's no reason to capitulate to the acceptance of patents in exchange. What the FOSS community and those benefiting from its work submitted new innovations in software were as non-patent prior art using the system, rather than applying for patents on it? Perhaps building a database of such technology, to which the USPTO has direct access, would mean it could be used as a powerful means to invalidate future patent attempts.

So the challenge for IBM and others benefiting from FOSS with the Open Source Software as Prior Art project is to see how much non-patent code they are prepared to submit as prior art under this new system.

IBM hadn't replied to requests for comment by the time of publishing.