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3 Initiatives to Improve the Patent Mess Announced - Updated
Tuesday, January 10 2006 @ 09:57 AM EST

As you can see in News Picks, there is big patent news today. For a long time, we've been complaining about the patent system, particularly as it affects FOSS. It turns out, someone listened. The New York Times' John Markoff has the story, as does Martin LaMonica. Here's Andy Updegrove's take and ComputerWorld.

Here's a USPTO headline I'll bet you never expected to see: USPTO PARTNERS WITH OPEN SOURCE COMMUNITY TO EXPAND PATENT EXAMINER ACCESS TO SOFTWARE CODE . They want to open up their system to the FOSS community, so it can improve. IBM helped them to feel that way. Here's the IBM press release.

IBM, OSDL, the USPTO, Red Hat, Novell, New York Law School, Sourceforge, among others, have decided to do something about the software patent mess, particularly as it impacts on Linux and the FOSS community. They are asking for your input. There is a role you can play in the three initiatives being announced, if you wish to.

I gather there are four goals:

1. make sure only high quality patents are granted
2. get the FOSS community to help the USPTO to find prior art
3. create a climate where Linux and other FOSS software can flourish
4. establish a quality indexing system

I know from your comments that some of you feel that the only solution is to get rid of software patents altogether, and if you can accomplish that, feel free. But others of you have expressed the thought that high quality patents are legitimate, for ideas that are truly innovative and represent real scientific progress.

Think what it means that the USPTO is participating and asking for your help. Think what it means for you and the FOSS community, if you have an innovative idea but can't afford to patent it that one of the projects is a system for storing source code in an electronically searchable format, satisfying legal requirements to qualify as prior art. Think about the difference it might have made to be able to speak and provide input in the recent Microsoft FAT patent reexamination procedure. PubPat's Dan Ravicher:

"Microsoft has won a debate where they were the only party allowed to speak, in that the patent re-examination process bars the public from rebutting arguments made by Microsoft," he told CNET "We still believe these patents are invalid and that a process that gave the public equal time to present its positions would result in them being found as such."

Read on for details on the three initiatives.

Here are some details from the IBM press release:

IBM also announced an initiative it is undertaking with the USPTO, Open Source Development Labs (OSDL), members of the open source software community and academia that is focused on improving U.S. patent quality. The unprecedented partnership between these parties to improve patent quality will help accelerate innovation in the United States.

The initiative has three elements:

-- Open Patent Review - a program that seeks to establish an open, collaborative community review within the patenting process to improve the quality of patent examination. This program will allow anyone who visits the USPTO web site to submit search criteria and subscribe to receive regularly scheduled emails with links to newly published patent applications in requested areas. Established in conjunction with the USPTO, this program will encourage communities to review pending patent applications and to provide feedback to the patent office on existing prior art that may not have been discovered by the applicant or examiner. Professor Beth Noveck of New York Law School will lead a series of workshops on the subject. For more information, visit Professor Noveck's project website at

-- Open Source Software as Prior Art - a project that will establish open source software - with its millions of lines of publicly available computer source code contributed by thousands of programmers - as potential prior art against patent applications. OSDL, IBM, Novell, Red Hat and VA Software's will develop a system that stores source code in an electronically searchable format, satisfying legal requirements to qualify as prior art. As a result, both patent examiners and the public will be able to use open source software to help ensure that patents are issued only for actual software inventions. Information for this project is available on the OSDL web site at: at:

-- Patent Quality Index - an initiative that will create a unified, numeric index to assess the quality of patents and patent applications. The effort will be directed by Professor R. Polk Wagner of the University of Pennsylvania with support from IBM and others and will be an open, public resource for the patent system. The index will be constructed with extensive community input, backed by statistical research and will become a dynamic, evolving tool with broad applicability for inventors, participants in the marketplace and the USPTO. Information about the Patent Quality Index is available at:

Here's what OSDL tells us about the Open Source Software as Prior Art initiative:

OSDL supports the USPTO's drive to improve the quality of software patents. The goal is to reduce the number of poor quality patents that issue by increasing accessibility to Open Source Software code and documentation that can be used as prior art during the patent examination process. For the Open Source community and many others, this means a reduction in the number of software patents that can be used to threaten software developers and users, and a resulting increase in innovation.

Three specific patent quality initiatives have been identified as a result of collaboration among the USPTO, IBM, OSDL and others in the Open Source community and software industry. Those patent quality initiatives are:

1. Open Source Software as Prior Art (the subject of this website)
2. Community patent review
3. Patent quality index

This website and related wiki and mailing lists provide a central location for information and exchanges of ideas on the Open Source Software as Prior Art Initiative. For more information, see the project overview. We encourage members of the Open Source Software community as well as proprietary software community to get involved.

The results of the Open Source Software as Prior Art Initiative will be made freely available to all.

Here's where you go to subscribe to priorart-discuss, OSS and USPTO prior art discussions. OSDL says, "The priorart discussion list is the primary place to discuss the ideas and future of the project." Or, more accurately, it will be.

The USPTO announcement says that there will be a public meeting at their headquarters in Virginia on February 16. Details will be provided later this month on their website. Here's more from their release:

Last month, USPTO representatives met with members of the open source software community, which provided an opportunity for members to discuss with the USPTO issues related to software patent quality. The meeting focused on getting the best prior art references to the examiner during the initial examination process.

The group agreed to improve prior art resources available to the USPTO; to develop a system to alert the public when USPTO publishes certain software-related applications so that interested parties can submit related prior art in accordance with relevant rules and law; and, to explore developing additional criteria for measuring the quality of software patents.

“For years now, we have been hearing concerns from the software community about the patent system,” Under Secretary of Commerce for Intellectual Property Jon Dudas commented. “It is important that those in the open source community are joining USPTO to provide resources that are key to examining software-related applications.”

If you have questions you wish to ask, leave them as a comment, and I'll try to get answers for you.

UPDATE: Here's some detail on the index initiative. It helped me to understand what they intend a little better, from Computer Business Review:

IBM is also working with Red Hat, Novell, and SourceForge to develop a searchable mark-up system.

According to Bob Sutor, an IBM vice president in charge of standards and intellectual property initiatives, it could leverage approaches similar to federated query, or information integration approaches, that blend the search of structured and unstructured data.

IBM is also looking to develop an index that would rate the technical quality of a patent application, using basic criteria such as how clearly it is written or how well it references prior art. Here, the systems would have to apply subjective criteria that could be open for multiple interpretations.

"The patent system already has technology classification scheme. They want to build an index that understands this technology area and uses normalized view as to the quality of patent," said Sutor.

Sutor explained that the system would not be meant to evaluate the economic potential of patent ideas, just whether the patent applications are intelligible enough to provide a clue as to whether the application merits serious review.

And Red Herring gets the overview:

The USPTO said it plans to examine and perhaps adopt a system of openness similar to that used by the open-source community to improve the standard of patent examination and approval. That’s a dramatic change from the relatively closed system that exists today. ...

The USPTO would like to have the best available prior art so it can make better decisions on patents based on more up-to-date resources.

The end result, if this works? Fewer stupid patent lawsuits, for one thing. CNN/Money:

The aim is to ensure that examiners don't inadvertently issue patents for software code that has already been developed, [IBM's Assistant General Counsel David] Kappos said in an interview. ...

"We obviously can't make all of the world's proprietary code publicly available," Kappos said. "What we can do is make that code that is already open-source format publicly searchable."

The process should lead to fewer copyright disputes and lawsuits, Kappos added.

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