Comment: Who benefits from IBM and the USPTO's 'open' bid to up patent quality?

Posted on 12 Jan 2006 at 12:14

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 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.