The tiresome debate over the subject of patents is really massive these days. Many articles are written about it everywhere. A lawyers' site continues to advance the view that software should be patentable by giving the platform to a notable lobbyist/booster for this 'cause'; Martin Goetz is said to be at the genesis of software patents in the US [1, 2, 3, 4, 5, 6] and he continues to be used by law-practicing software patents proponents such as Dennis Crouch. This is a problem because unless software developers make their views heard, the lawyers will simply get their way.
Texan hosting firm Rackspace is going on the offensive with a legal challenge to non-producing entity (or patent troll, as they are more commonly known) Parallel Iron – a firm Rackspace describes as "the most notorious patent troll in America."
Rackspace is still feeling cocky after its victory last week in the Eastern District of Texas, when a judge ruled that fellow NPE Uniloc couldn't try to enforce a patent on a mathematical formula – a rare case of logic from the notoriously patent plaintiff-friendly court. Flushed with success, Rackspace is now taking the fight to a new target.
Late last year, I wrote about the EFF’s project to leverage the Patent Office’s new Preissuance Submissions procedure to promote open 3D printing technology. Here we are, several months later, and the fight for open 3D printing continues. Now, the EFF has partnered with Ask Patents to facilitate crowdsourcing of prior art searches for various 3D printing-related patent applications.
At first, I didn’t see anything remarkable about this partnership. However, as I delved a little deeper, things got a little more interesting. First off, Ask Patents is part of a group of open-content websites called Stack Exchange which includes over 100 "question and answer sites on diverse topics from software programming to cooking to photography and gaming." But, the more interesting tidbit—at least to me—came from the Stack Exchange blog, where they claim that former Patent Office Director, David Kappos, came to their office to encourage them to open a Stack Exchange site dedicated to generating prior art to help patent examiners do their jobs.
Last week a court in the Eastern District of Texas dismissed patent litigation brought by NPE Uniloc against internet hosting provider Rackspace. Uniloc sued the Texan company in June 2012, alleging that its use of Red Hat Enterprise Linux infringed one of the NPE’s software patents relating to “the processing of floating-point numbers”.
In response, Rackspace and Red Hat (which was providing assistance to its customer in accordance with its Open Source Assurance programme) jointly filed for an early motion to dismiss the case. The motion was granted, with the court finding the claim asserted by Uniloc invalid as it covered a mathematical algorithm.
According to a press release from Red Hat, this decision represents the first time that a court in ‘NPE’s paradise’ the Eastern District of Texas has granted an early motion to dismiss after finding that an asserted patent claimed unpatentable subject matter.
Even for organisations that have a fundamental opposition to software patents, IP can be a major part of their business model. Red Hat and other companies have shown that patenting and open source development can coexist and can complement each other; while other intangibles such as brands – and the trademarks and other rights that protect them – can be vital to competitiveness in the highly commoditised software market. For those in the open source community that are sceptical about the IP system, that is surely something worth considering.