Speak Up For SHIELD

If you’re a US citizen, your support for the bipartisan SHIELD Act could strike a decisive blow to patent trolls by making them pay costs if they lose patent actions and allowing judges to require a bond for costs from them before a case can proceed. Striking at their ability to build a fighting fund could well be the key to making the “business” they conduct unprofitable and dangerous.

While advocates of patent maximalism claim this also disadvantages small businesses legitimately prosecuting patents against larger foes, my take is small software businesses should be avoiding patents anyway. There are a few counter examples from the world of hardware (Dyson is frequently cited) but they are an expensive weapon; expensive to wield and likely to bring more value to the vultures who will pick over the wreckage of your business than to you yourself.

Read all about it over on InfoWorld.

Unitary Patent Over-simplified By IoS

The IoS may have uncritically picked up the messaging the UK’s “Intellectual Property Office” has been spreading, but the likely outcome of the unitary patent is likely to be much less savoury. Rather than helping small business, this new regulation introduces yet another threat against small business owners, especially those basing their business on open source software who have no corporate sugar-daddy to protect them. Read why on ComputerWorldUK.

US Hearing To Test Lemley Patents Proposal

A rare en banc hearing of the US federal circuit court today will re-hear the arguments over a fiercely-fought software patent case, CLS Bank vs Alice Corp (the aggressor here is actually Alice; CLS is named first as they sued pre-emptively). Among the amici briefs is one from the EFF proposing Mark Lemley‘s elegant re-examination of the patent statute as a solution. This involves treating “a computer which…”, the weasley phrase added in front of abstract patent claims to make them patentable, as unacceptable unless it refers to a specific implementation of a computer. In this case, the statute’s rules on functional claiming would then apply, severely restricting the scope of the patent.  I explain in more detail in InfoWorld today.


Beating A Dead FRAND

Of course FRAND terms are incompatible with software freedom, even if you can find a project that has devised a construct to allow it to attempt to accommodate that incompatibility. When a standard includes patents that are not automatically licensed to all implementers — on “Restriction Free” (RF) terms — that means a standard may require permission to be implemented. Requiring explicit permission to act is anathema to software freedom.

Read more on ComputerWorldUK.

Software Patent Solution Under Our Noses

I was blown away by a paper by legal scholar Mark Lemley when I read it in full this week. He plausibly claims there’s a very simple and elegant solution to software patents in the USA that simply needs a future defendent to use it in their defence. Read about it in this week’s InfoWorld article.

Apple v Samsung

Patents are now an anti-trust weapon rather than a reward for innovation. That’s my conclusion after a weekend trying to decided whether I has happy or sad Apple had beaten Samsung in the billion-dollar-suit in San Jose. It’s just a part of a deeper narrative around the fight by the winners of the 20th century to stop the upstarts of the 21st century from succeeding.

The case is an inevitable consequence of the fact the patent system has not kept pace with the realities of globalised business, the complex, fast-paced technology sector or the reality of open source software. Patents were supposed to protect the instantiation of ideas, not the ideas themselves. But the system has been thoroughly, impossibly gamed, to the point where only a Grand Master can play it.

Patent law is now being used as an anti-competitive weapon so much that I begin to wonder whether it’s the anti-trust/competition laws rather than patent law that should be updated first. Read more in InfoWorld.

Can the DPL Work?

What is patents could be de-weaponized? That’s the goal of the new Defensive Patent License, released this week by law professor (and former EFF lawyer) Jason Schultz. My article for InfoWorld this week looks at the background to the DPL and asks if it will actually work.

%d bloggers like this: