Open source to power US patent review

Matt Whipp Read more October 7, 2009

The US Patent and Trademark Office (USPTO) is looking to the open source community to help improve the quality of patents issued in the US.

Quality issues have landed the USPTO with something of a reputation as an over-liberal system that one should try to avoid – particularly in relation to efforts in Europe to come up with a harmonised patent legislation for the EU.

The successful patenting of what some might consider trivial or obvious inventions, such as ‘one-click shopping’ has made software patents tricky terrain for the tech industry.

A new initiative has now been set up by the USPTO, along with major open source vendors, the OSDL and VA Software’s SourceForge.net, to give open source a role to play in improving patent quality.

One of the major elements is the acceptance of open source software as potential prior art. This will involve building a system that will index and make accessible the millions of lines of code within open source projects in a way that satisfies the legal demands necessary for it to be deemed prior art.

Other aspects involve the USPTO really taking on the ethos behind open source: the Patent Quality Index will enlist the community to build a system that indexes patents in terms of quality and gives public access.

The openness and community elements will also play a vital role in theOpen Patent Review. This allows interested parties to sign up to receive updates on patent applications in areas of special interest. Subscribers will then be able to help the USPTO in submitting prior art where appropriate.

‘For years now, we have been hearing concerns from the software community about the patent system,’ Under Secretary of Commerce for Intellectual Property Jon Dudas commented. ‘It is important that those in the open source community are joining USPTO to provide resources that are key to examining software-related applications.’

However, it remains to be seen in what way the open-source community is qualified to assess and submit code as prior art material – especially given that many in the community are strong opponents of softawre patents in the first place.

IBM, both a strong proponent of open source software and the largest recipient of patents grants from the USPTO for the thirteenth year in a row, is one of the leading companies calling for reform.

‘IBM believes that patents should be granted only for ideas that embody genuine scientific progress and technological innovation,’ said Dr. John E. Kelly III, IBM senior vice president of Technology and Intellectual Property. ‘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 prevent over-protection that works against innovation and the public interest.’

What will be interesting to see is how the USPTO’s welcoming advances to the open source community affects the next version of the GNU General Public License. This is the licence that underpins the Linux operating system, among many other open source projects, but explicitly outlaws code protected by patents unless it is free from royalty and other restrictions.

But now, for the first time in more than 15 years, it is at the first stages of being updated.