Patents and customers
June 18th, 2007 by Jeff Jaffe
Last month, Novell announced that we would partner with the Electronic Frontier Foundation (EFF). The focus is in working with the World Intellectual Property Organization (WIPO) to lobby for improvements in law, and Novell will help fund the EFF’s patent-busting efforts against bad software patents. The patent-busting effort has four objectives: to identify the worst offending patents, to document the prior art which shows their invalidity, to use this prior art to reexamine and invalidate the patents, and to chronicle the negative impact on innovators. Here I will describe why we selected this set of actions and their timing, and how they relate to Novell’s long-standing history to protect customers from bad patents.
The issue
Why are bad software patents an issue for Novell? Because they are an issue for all software vendors.
As a matter of law issued patents are presumed to be valid. The owner of a patent has powerful rights, including the right to exclude others from making, using, or selling the patented invention. The owner may enforce those rights through legal action for damages and injunctive relief. Even with a “bad” patent that should have never been issued, an allegation of infringement may put a vendor at great risk, and the allegation may be overcome only after great effort and expense.
Novell’s approach to date
These patent rights lead to an issue of customer assurance. Customers need confidence that they are protected. So, our approach has been to take immediate- term action that directly addresses this issue. The approaches we have taken include:
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Indemnification. We have indemnification agreements with customers.
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OIN. Novell is a founding member of the Open Invention Network, formed as a common defense organization against patent claims. We also facilitated OIN’s acquisition of a considerable number of patents – useful for countersuit against patent aggressors.
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Avoidance. If we become aware of an infringement we can look for a workaround.
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Defense. We have announced a patent policy which among other things accentuates the use of our patents for defensive purposes.
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Interoperability and mutual covenants not to sue customers with Microsoft.
Short-term and long-term actions
Our agreement with Microsoft stimulated a discussion within the community about the appropriate responses to remove patent assertion as a threat to Free and Open Source Software. GPLv3 is one approach which addresses the issue from the perspective of the license.
Our actions to date have addressed customer needs and been effective in dealing with the immediate issue of patent assertions. However, during this discussion, it became clear that the time is right for efforts to achieve the more fundamental change we have long believed would be necessary. After all, the above actions don’t address the structure of the patent system. And the patent system today has several challenges.
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Software patent quality today is low.
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Patents are routinely issued for trivial combinations of existing technologies – things already known to the public, or design variations that are obvious to someone with technical skill in the field of the patent.
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Software patents can cause harm to open standards by effectively making them proprietary.
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Damage that can be done by companies that use patents as a means of extracting licensing revenue or pursuing IP litigation, but who do no software business of their own and so cannot be deterred by the threat of patent countersuit – so-called “patent trolls.”
The EFF partnership
So we concluded that our next logical step is to complement the short term customer-oriented actions with longer term actions to challenge and change the legal and patent framework. Our work with the EFF on influencing WIPO is targeted at this objective.
Realistically, fundamental change will take a long time. Changing laws involves influencing legislatures in numerous countries – something which will move slowly. Over time, we will place more emphasis in geographies such as Europe where change seems more promising. Changing interpretation of laws involves advocacy before courts in numerous countries. This too will move slowly, although we were encouraged by a recent US Supreme Court decision against obvious patents.
As an intermediate step, we are also providing funding to the EFF for patent-busting. Within the current legal framework, there are abuses that should not be permitted. These abuses are the granting of patents on ideas that are not worthy of patenting. As mentioned above, the EFF patent busting work involves identifying these patents, the prior art, and the impact, and going after these patents in the U.S. Patent Office and other patent offices around the world. We are hopeful that our partnership will add momentum to patent busting activities, and discourage filers of bad patents.