Be Patient With Patents (Lit Review)

February 16, 2015


Software Freedom Law Center


A Legal Issues Primer for Open Source and Free Software Projects (Ch. 4)


PDF Document



The Gist

Patents exist as a way to protect the rights of inventors and vary in implementation by the country’s legal regime
Many patents involve software and FOSS developers run some risk in infringing software patents, both because of how many patents there are, and because of the broadness of many patents
There are several efficacious ways to defend one’s software against patent infringement allegations

The Good

  • Covers parts of patents and which bits are the most important (tl;dr the claims are)
  • Covers defense strategies that would particularly aid a FOSS project fighting a patent battle
  • Covers why patents aren’t compatible with FOSS, technically or philosophically

The Bad

  • The chapter title should be “Hi, my name is Dense Legalese”
  • Only one case example which isn’t even summarized meaningfully
  • Needs more details about how the GPL relates to patents

The Questions

  • Are there specific cases or patents that would impact FOSS more than others? If so, what are they?
  • How can the USPTO adequately assess the validity of the patent if the prosecutor isn’t familiar with software development? Are they certified?
  • Why is the cost to file a request for claim review so expensive? How are fees legally justified by the government?

For the first few years of true competition between Android and iOS, it seemed like every day, there was another related lawsuit being filed. Just like the Cola Wars and Format Wars of the days of yore, America needed another metaphor for intense public competition between two giants. Luckily, Android and iOS were similar enough that a patent brawl went and continues to go down: The Smartphone Patent Wars!

Who's suing who? Smartphone lawsuit diagramThis image by George Kokkinidis at designlanguage.

Patents are an important part of the legal framework that enables the United States to maintain such a large economy. While it could be said that everything is a derivative work, it costs both individuals and businesses time and money to innovate and create. Patents were designed to protect those who invested resources into the creation of the product. Yet, like most other things which involve both the government and money, it is rife for abuse. As the text states, patents can be broad, vague, and defended by a large, competent legal team, even if they may be invalid in reality. Who would have the resources to challenge them in most cases?

There are many parts of the law in need of reform. Patent laws, like copyright laws, have not kept up with advances in technology and seem to stifle innovation. One notable and hilarious example of the Apple v. Samsung cases is the discussion of Apple’s patents on “rounded corners.” While that part of the ruling was (thankfully) in Samsung’s favor, it is a statement to the encumbrance of innovation by patent law. If we spend millions to debate how round the rectangles of a hunk of plastic can legally be without infringing on a patent, how will we ever make it to Mars? I’m honestly asking.

Rating: 3.5/5

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