Software patent abuse would seem to be on the decline if the amount of ink being given to the subject in the open source press is used as a metric. But as the old TV commercial used to ask: Is it live, or is it Memorex?
Five or six years ago the major GNU/Linux and FOSS news aggregators were filled with stories about software patents. These days, not so much. Does this mean that the threat posed by patents is actually less now than in 2010, or have patents simply not been getting the coverage they once did?
There is no doubt that there have been many developments on the patent front that have been beneficial from a free tech standpoint. There was the 2014 Supreme Court ruling in Alice Corp. vs. CLS Bank, which immediately made a slew of patents unenforceable. This decision invalidated so-called “abstract” software patents, which basically sought patent protection for merely moving established but previously non-computer procedures to a computer (i.e., bookkeeping “on a computer”). Other developments include online retailer Newegg’s decision several years back to take all disputed patent infringement claims against it to court instead of settling. Although the results of this decision have led to a mixed bag of results, with notable wins and losses, it’s undoubtedly caused the trolls to think twice before threatening the company.
The patent landscape has changed in other ways as well, with many revolving around the America Invents Act which took effect in 2012 and 2013. One provision of this bill that has been successfully leveraged is the “inter partes review,” or IPR, in which the non-patent holder petitions the Patent Trial and Appeal Board to rule on the validity of a patent.
Since instituted in 2012, the IPR provision has been used to have more than a few patents invalidated by PTAB. In March, for example, the board invalidated a “product activation” patent held by troll Uniloc on the grounds that all claims within the patent were either anticipated or made obvious by earlier patents. This was a big win for our side, as over the years the patent holder had sued around 75 companies — a list which includes our old buddy Microsoft — with a third of those settling out of court.
The IPR provision may or may not be weakened soon, however, when Cuozzo Speed Tech vs. Lee goes before the Supreme Court later this year.
Although there have been many improvements on the patent front, some things remain the same. For example, while Microsoft no longer makes use in FUD campaigns of its infamous 235 patents that are — according to Redmond — violated by Linux, neither has it repudiated their existence nor shown proof that they exist. In the meantime, the company continues to threaten Android mobile device makers with legal action unless they sign licensing agreements, which has reputedly made Google’s mobile operating system a billion dollar business for Microsoft.
This illustrates our concerns that just because the bar has been raised for trolls to successfully monetize dubious patents, this doesn’t necessarily mean that the threat posed to Linux and FOSS has been eliminated or reduced. Indeed, according to an article by Joe Mullin that appeared on Ars Technica in January, last year was a watershed year for patent lawsuits, with more patent related suits filed than in any year except 2013.
What do you think?
Here at FOSS Force we’re running a poll to better understand the perceptions held by FOSS advocates on the subject. By your reckoning, are patents still a threat? The four answers we offer in our poll run the gamut from “yup, a lot” to “nope, not at all.”
We quietly put the poll up on our front page on Thursday morning. Ninety-one percent of the votes cast so far indicate our readers think software patents remain a serious issue, even if the situation has somewhat improved over the last several years.
Give us your input. Take a few seconds to take our poll — and if you have anything to add feel free to write a comment to this article. We’ll give you our analysis of the poll results on Friday.
Editor’s note: The results of this 2016 poll were lost during an upgrade to our polling software.