The patent system is broken. The point of patents is to encourage innovation and inventiveness. Instead of promoting innovation, patent offices have awarded overly broad, vague, and unoriginal patents that draw unclear lines allowing bad actors to profit and threaten costly lawsuits. Patent examiners have a strong sense of the technology that is patented, but they’re missing an understanding of what has been and is currently being developed in the open source world. As shocking as it may seem, the result is the examiner formulating an inaccurate sense of what is innovative. As the final arbiter of a very significant monopoly grant, they are often grossly uninformed in terms of what lies beyond their narrowly scoped search. This is not wholly their fault as they have limited resources and time. However, it is a strong indication of a faulty system that is so entrenched in the archaic methods under which patent offices have been operating.
We have faced and continue to cope with the effects of bad patents on multiple fronts. The most widely known are being displayed on the large stage where huge companies battle in the courts, resulting in large money settlements or high stakes jury verdicts (i.e. Apple v. Samsung). This leads to higher costs to consumers and users, uncertainty amongst innovators about what is patented, a veritable arms race to secure patents to corner the market, and limited competition. These ‘wars’ cost companies money and that cost trickles down to the consumer.
On another stage, we also see the threat of trolls exponentially increase as more patents are acquired and used against small companies, nonprofits, and independent developers. The fear of costly litigation forces licensing agreements with the result of stifling innovation by suffocating independent inventors. On all fronts, more money is being spent on co-existing with undeserving patents rather than developing new ideas. We are losing out on breakthroughs and advancement in technology because of the environment of fear and uncertainty that has been created.
The answer has to be more than abolition of the patent system, as from a pragmatic point of view, it won’t happen. It does us little service to ignore patents and abandon the system. Rather, we need to address and combat the threats to innovation so that we can begin to bring an end to the age of fear and litigation. We can continue to deal with patents as they are issued, identify those that abuse the system, then spend the money and invest time to work to invalidate these. Taking this one step further, we can also proactively prevent these obstacles to innovation from even existing by directly communicating to the examiner what is being and has been developed. The tools to do so are available through the use of defensive publications.
A defensive publication essentially describes what is known or currently being developed. For those who are developing software, these documents are regularly created in the form of blog posts, community updates or releases. However, examiner constraints prevent these sources from being found. The last step is formalizing this and ensuring that the patent examiner has access to an open source database of these documents.
With increasing amounts of low quality patents being issued worldwide and a lack of clear boundaries, patent examiners are losing a sense of what is indeed inventive. Those who patent are getting a voice. Every free software release, solved issue or innovative development process can be turned into a defensive publication. References to current or older releases can also be demonstrated to help illustrate how the community of developers resolves obstacles. By writing these disclosures, free software can demonstrate how to be proactive. In turn, a patent application is rejected and a potential lawsuit is avoided.
Through the Linux Defenders program, Open Invention Network works with open source developer communities to create defensive publications. We will be working closely with Linux kernel and Qt developers, because we think that these represent major driving innovative forces in the Open Source spectrum. Important innovations in Linux and Qt should be documented in defensive publications following the releases of the software. We invite interested individuals and companies to contribute to this, and will support the authors in getting their publications out. If you are interested in writing Qt related defensive publications, or will be able to help identifying topics that should be documented, consider joining the mailing list to follow the discussion: http://lists.qt-project.org/mailman/listinfo/defpubs
[Image by Nick Kocharhook, thanks: http://www.flickr.com/photos/k9/35010906/%5D