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Changing the Software Patent Landscape in the U.S. - What won't work (and what might)
Thursday, November 03 2011 @ 09:05 AM EDT

The White House has launched a new citizen input process that allows citizens to propose and post petitions to the White House suggesting government action on issues of interest. One such petition calls for the Administration to direct the U.S. Patent and Trademark Office to cease issuing software patents. The White House has issued a response to the petition, and you will note that it barely responds to what the petitioners are requesting. Why? Because the White House has no direct power to do what the petition asks.

So what has the public reaction to that response been? Why, another petition screaming even louder for the White House to do something. Right idea; wrong forum.

We have software patents in the U.S. because Congress has essentially said that "anything under the sun made by man" is patentable. This well worn quote was provided during testimony in the consideration and adoption of the Patent Reform Act of 1952, and since then the U.S. court system has done its best to embrace that concept, giving us patents on software, business method, and the human genome. The administrative branch of our federal government had no hand in either legislating or interpreting legislation. Those activities are the purview of Congress and the Courts. The Administration can only enforce the law of the land (and on occasion, influence legislation or file an amicus brief in a court case), so our right-headed petitioners who want to rid the U.S. of software patents need to shift targets. They need to focus on Congress and the Courts.

So what are the odds that Congress will actually ever act to revoke software patents? Democrats, Republicans, Libertarians, Greens, etc., would all probably peg those odds at less than one in a googol, since Congress appears to only answer to those who fund their campaigns with massive contributions beyond the reach of average voters. It is no secret that the largest players in the information technology sector all hold large patent portfolios, and it's a bit hard to imagine them walking away from the investment in patents willingly.

But that doesn't mean folks shouldn't try. Why not start a petition aimed at Congress, rather than the White House (although Congress doesn't give you a nifty little app to generate that petition), and why not aim for enough signatures to really get their attention. Say, a million. That would be a critical mass they would ignore at their peril. Apart from Congress, the single best hope for narrowing the scope of or eliminating software patents in the U.S. will have to come through the court system, ala Bilski. But it will take just the right case at just the right time, and it will require a tremendous amount of fortitude on the part of the Supreme Court justices who could face wiping away billions of dollars of book value from corporate balance sheets in one fell swoop. If you want to understand a bit more about the arguments that can be made along these lines, read the amicus brief filed by Red Hat in the case.

And let's not let the Administration off the hook altogether. The Justice Department is responsible for enforcing U.S. antitrust (competition) law, and it has previously taken some steps to protect free and open source software where patents are concerned. (See, DOJ and German Antitrust Body Order Changes to CPTN Patent Purchase) If you want to petition the White House, petition them to look at every large software patent sale to assess its impact on FOSS. Or petition the White House to study the impact of software patents on the information technology industry. You can make a strong case that software patents were of no utility in the development of the information technology industry in the U.S.

So that's the software patent landscape in the U.S. in a nutshell, and as a result, my first take on the petition was that it served no particular purpose since, in my opinion, what it requested couldn't be done. That's the glass half empty.

As for the glass half full, we need look no further than the White House response provided by Quentin Palfrey. Now, not surprisingly, the White House didn't come out and call the petitioners a bunch of dunderheads unfamiliar with how the U.S. government works. The response was pleasant and upbeat and avoided directly answering the petition. Palfrey's response also contains the normal level of political hyperbole when it goes on about all the great things the America Invents Act is going to do for patent quality and saving our economy. Skip that part. In fact, skip all the way down to the last paragraph of Palfrey's response because that is where the really important stuff is.

In that last paragraph Palfrey talks about the extensive use of open source software throughout the U.S. government and how open source is spurring innovation.:

We understand that the concern about software patents stems, in part, from concerns that overly broad patents on software-based inventions may stifle the very innovative and creative open source software development community. As an Administration, we recognize the tremendous value of open source innovation and rely on it to accomplish key missions. For example, the U.S. Open Government National Action Plan recently announced that the source code for We the People and Data.gov would be open sourced for the entire world. Federal agencies are likewise spurring innovation through open source energy. For example, the Department of Defense issued clarifying guidance on the use of open software at the Department. And, the Department of Health and Human Services has become a leader in standards-based, open sourced policy to power innovations in health care quality and enable research into efficient care delivery. The tremendous growth of the open source and open data communities over the years, for delivery of both commercial and non-commercial services, shows that innovation can flourish in both the proprietary and open source software environments.
Imagine that! And why is this acknowledgment of open source so important? Because it is the first time I can recall this White House (or any predecessor White House) publicly embracing open source. That's huge!

So while our anti-software patent petitioners may have been a bit off the mark (not in their goal, but only in how to achieve it), the petition has certainly served one useful purpose - to demonstrate that open works, whether in software or standards, and that patents are not the be all and end all in innovation.

*****************

The Petition Against Software Patents


The White House Response

Official White House Response to
Direct the Patent Office to Cease Issuing Software Patents

Promoting Innovation and Competitive Markets through Quality Patents

By Quentin Palfrey

Thank you for your petition asking the Obama Administration to direct the U.S. Patent and Trademark Office (USPTO) to stop issuing software patents and to void existing software patents. We are committed to reforming the patent system in a way that puts patent quality first and promotes innovation and competitive markets.

On September 16, 2011, President Obama signed the America Invents Act, which will help American entrepreneurs and businesses get their inventions to the marketplace sooner so that they can turn their ideas into new products and new jobs. The America Invents Act was passed with President Obama's strong leadership after nearly a decade of effort to reform the Nation's outdated patent laws. It will help companies and inventors avoid costly delays and unnecessary litigation, and let them focus instead on innovation and job creation. Congress recognized that more needs to be done to review and weed out overly-broad patents that have been issued in the past, and the recently enacted legislation provides important tools to invalidate certain overly-broad patents that might inhibit innovation, including those involving software. For example, the new transitional post-grant review program will help the USPTO take a closer look at certain business method patents, including a number of software patents. Other tools for cost-effective and speedy in-house review of granted patents will also become available in less than a year under the new law.

The America Invents Act directly addresses certain categories of patents, like patents involving tax strategies, but it did not change the law regarding the patentability of software-related inventions. There's a lot we can do through the new law to improve patent quality and to ensure that only true inventions are given patent protection. But it's important to note that the executive branch doesn't set the boundaries of what is patentable all by itself. Congress has set forth broad categories of inventions that are eligible for patent protection. The courts, including the U.S. Supreme Court, have interpreted the statute to include some software-related inventions. Even before the legislation passed, the Administration took other important steps to ensure that only high-quality patents are issued, and that we curb or invalidate overly-broad software patents. For example, the USPTO recently issued guidance to its examiners that tighten up the requirements that inventors fully describe, specify, and distinctly claim their inventions so that vague patents are not issued. We've also issued new guidance to examiners to help ensure that patents cover only "new" and "non-obvious" inventions.

As we begin to implement the new law, patent quality will be at the top of our minds. As Director Kappos recently explained, "[w]hile speed is essential to a well-functioning USPTO, patent quality is the sine qua non of our success, and we are all deeply committed to ensuring patent quality." We will tackle a number of important questions in the coming months, and we invite you to work with us to implement the new law in the most effective way possible. To help facilitate that dialogue, we have set up a public implementation website at http://www.uspto.gov/aia_implementation, and we'd love to hear your comments by email, postal mail or in person at a number of public events that are listed on the implementation site. Through that process, you can help us work through important questions on how to implement provisions of the new law, like inter partes review, post grant review, and covered business method patents. We understand that the concern about software patents stems, in part, from concerns that overly broad patents on software-based inventions may stifle the very innovative and creative open source software development community. As an Administration, we recognize the tremendous value of open source innovation and rely on it to accomplish key missions. For example, the U.S. Open Government National Action Plan recently announced that the source code for We the People and Data.gov would be open sourced for the entire world. Federal agencies are likewise spurring innovation through open source energy. For example, the Department of Defense issued clarifying guidance on the use of open software at the Department. And, the Department of Health and Human Services has become a leader in standards-based, open sourced policy to power innovations in health care quality and enable research into efficient care delivery. The tremendous growth of the open source and open data communities over the years, for delivery of both commercial and non-commercial services, shows that innovation can flourish in both the proprietary and open source software environments.

Quentin Palfrey is Senior Advisor to CTO for Jobs and Competitiveness at the White House Office of Science amp; Technology Policy



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