In a move to reform the U.S. patent system, IBM is partnering with Open Source Development Labs (OSDL) and the U.S. Patent and Trademark Office (USPTO) on an initiative to improve patent quality and accelerate innovation.
The initiative has three elements: the Open Patent Review, Open-Source Software as Prior Art, and a Patent Quality Index.
Dr. John E. Kelly III, IBM senior vice president of Technology and Intellectual Property, said IBM believes that patents should be granted only for ideas that embody genuine scientific progress and technological innovation.
“Raising the quality of patents will encourage continued investment in research and development by individual inventors, small businesses, corporations and academic institutions while helping to preventover-protection that works against innovation and the public interest,” he said.
Open Patent Review
To that end, Open Patent Review is a program that seeks to establish an open, collaborative community review within the patenting process to improve the quality of patent examination.
This program will allow anyone who visits the USPTO Web site to submit search criteria and subscribe to receive regularly scheduled e-mails with links to newly published patent applications in requested areas.
Established in conjunction with the USPTO, this program is designed to encourage communities to review pending patent applications and to provide feedback to the patent office on existing prior art that may not have been discovered by the applicant or examiner.
Open-Source Software as Prior Art
Next, the Open-Source Software as Prior Art project that will establish open-source software — with its millions of lines of publicly available computer source code contributed by thousands of programmers — as potential prior art against patent applications.
OSDL, IBM, Novell, Red Hat and VA Software’s SourceForge.net will develop a system that stores source code in an electronically searchable format, satisfying legal requirements to qualify as prior art.
As a result, IBM said both patent examiners and the public will be able to use open-source software to help ensure that patents are issued only for actual software inventions.
Will it Work?
It’s an interesting initiative. But will it accomplish its intended purpose?
Florian Mueller, founder of the NoSoftwarePatents.com campaign and voted among the “top 50 most influential people in intellectual property” by Managing Intellectual Property magazine, told LinuxInsider that the initiative may slightly reduce the number of patents that are granted.
“No one can say if the effect will ultimately be significant. Semi-automated prior art search will in the field of software never be nearly as efficient as in the field of chemicals and pharmaceuticals,” Mueller said.
Patent Quality Index
The third leg of the patent initiative stool is the Patent Quality Index. This is an initiative that will create a unified, numeric index to assess the quality of patents and patent applications.
Professor R. Polk Wagner of the University of Pennsylvania will direct the initiative with support from IBM and others. It will be an open, public resource for the patent system.
IBM said the index will be constructed with extensive community input, backed by statistical research. IBM hopes it will become a dynamic, evolving tool with broad applicability for inventors, participants in the marketplace and the USPTO.
IBM said high-quality patents increase certainty around intellectual property rights, reducing contention and freeing resources to focus on innovation.
The three initiatives are open to all who are interested, and broad participation is encouraged by the initiators. In fact, the USPTO has planned a public meeting to further the projects at its offices in Alexandria, Va., on Feb. 16.
OSDL General Counsel Diane Peters said these important efforts among open-source developers, vendors, end users and government to improve patent quality will reduce potential legal threats to open source developers and businesses.
“OSDL is eager to extend its work on open-source legal initiatives to collaborate with IBM, the U.S. Patent Office and the open-source community,” Peters said. “This work will further the adoption of, and confidence in, Linux and open-source technologies.”
The Legal Question
What about the legal landscape? Will this initiative reduce potential legal threats and stimulate the adoption of open-source technologies as described by OSDL’s Peters?
From the perspective of a software developer, Mueller said the risk will be essentially the same as before. Huge numbers of software patents have already been granted, and countless new ones will be granted on an ongoing basis.
“The potential threat of patent litigation doesn’t seem to adversely affect the adoption of Linux and other open-source technologies, despite all of the efforts that Microsoft makes,” Mueller said. ” But once there is the first successful patent suit against users of Linux or another key open-sourceprogram, the situation will change fundamentally.”
The 271blog points to an irony with the use of the "patent quality index." There is a US patent (6,556,992) which claims a computer-automated method for rating or ranking patents including constructing a computer regression model based on selected patent metrics. Some of the details are discussed at http://ipbiz.blogspot.com/2006/01/ibm-proposal-to-help-patent-examiners.html.
Separately, a law review article by Professor Wagner published in Nov. 2005 seems to set a baseline patent grant rate of 97%, based on earlier work by Quillen and Webster, since withdrawn by those authors and otherwise called into question. Not only is the baseline perception on patent quality incorrect but also statistics from court decisions show that invalidity determinations are down. A regression analysis based on a past not reflective of present conditions is not apt to be successful.