Patent reform bill 'useless' for open source

Open source developers and users will gain little or nothing from a patent reform law introduced to US Congress last week.  

The Patent Reform Act of 2007 (PDF) proposes a series of changes to current rules, allowing for a review period after a patent has been awarded.

The proposed legislation also bans 'forum shopping', where a patent owner files a legal claim in a region known for ruling in favour of patent owners.

Lastly, the legislation proposes to limit the damages that can be awarded for patent infringement.

Mark Webbink, general counsel for open source software vendor Red Hat, welcomed the changes. 

In a statement to VNU Webbink expressed hope that the effort would prove effective in changing patent rules, and that the legislation would benefit proprietary and open source software equally. 

Patents are considered a potential threat to open source users and developers, as the lack of a corporate owner of most open source software puts the liability with the end user and the developer who designed the original code.

Furthermore, the patent system has a much larger problem than the ones addressed in the reform.

Critics charge that many patents awarded today are overly broad or fail to take notice of 'prior art', a legal term indicating that somebody else invented a product before the patent applicant.

"We are sceptical about whether this [reform] represents any substantial change," Richard Fontana, counsel with the Software Freedom Law Center, told VNU.

The legal group provides legal assistance to open source groups, and has actively fought patents which it considered invalid.

"To our clients, the open source developers, this reform does not really go to the root of the problem. It is still too easy to get a patent on software out of the US Patent Office that is too broad," added Fontana.

Fontana also warned that the change in the review rules could actually backfire. Patents can be challenged in court or by asking the US Patent and Trademark Office (USPTO) to re-examine an existing patent. 

The legislation singles out the re-examination process as ineffective. But it is by far the most effective way for individual open source developers and the Software Freedom Law Center to challenge a patent because it is inexpensive and requires little paperwork, said Fontana.

The proposed legislation leaves it to the USPTO to define further rules. Fontana fears that the organisation will make it more costly to challenge patents.

The proposed legislation offers some minor improvements, the lawyer conceded, such as the ban on forum shopping.

The region of Eastern Texas, in particular, has made a coordinated effort to create a bias towards patent holders in its court system in recent years.

This was intended to boost economic activity in the region rather than serve justice, and Fontana referred to it as "one of the most corrupt features of the US patent litigation system".

The fact that the legislation has been introduced should be considered a victory for supporters of patent change, he argued.

Previously pharmaceutical and high-tech companies formed a single lobby against patent reform, which Fontana argued has created many of the problems facing the system today. But that alliance has now been broken.

Big pharmaceutical firms continue to resist any change to the patent system in order to prevent their heavy investments in new medications.

Several lobby groups for the sector have lashed out against the reduced damages provisions in the current draft of the law. But high-tech providers including IBM and Symantec have publicly stated their support for the reform.

"The big IT companies have just come to regard the patent system that they helped to set up as a colossal failure," Fontana said.

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