Patents in an open source world

Patents: Newsforge: Patents in an open source world, by Lawrence Rosen (founding partner of Rosenlaw and Einschlag).

Interesting article, but I’m not sure summary point number 2 (‘continue to document our own “prior art” to prevent others from patenting things they weren’t the first to invent’) really helps, when the patent examiners clearly haven’t performed the simplest Google check. I’ve found obvious prior art in 30 seconds, by plugging 3 words from patent claims into Google in the past (and yes, I have a reasonable idea how to read patent claims by now).

Point number 3 is interesting, since it contradicts most other advice I’ve read regarding patent searches: ‘Conduct a reasonably diligent search for patents we might infringe. At least search the portfolios of our major competitors. (This, by the way, is also a great way to make sure we’re aware of important technology advances by our competitors.) Maintain a commercially reasonable balance between doing nothing about patents and being obsessed with reviewing every one of them.’

However, this comment really is interesting and raises something major that I’d never heard of before — users of proprietary software can also face a significant risk from the patent threat. In particular, according to the linked comment, Microsoft licensed some patented technology from a company called Timeline Inc., but the license was not sublicenseable — in other words, it did not grant their customers the rights to fully use the technology! (in fairness to MS, this was established later in court.) Result: href=”″>MS SQL server OEMs and ISVs are now being sued.

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