Out-Law News 2 min. read
29 Apr 2009, 6:20 pm
OIN has asked the public to find and submit material that might indicate that technology covered by the patent had been invented before by other people, thus rendering Microsoft's patents invalid.
Microsoft has long claimed that the open source operating system Linux infringes patents that it owns. It said in 2007 that the system infringed 235 of its patents.
Three of those patents were part of a dispute earlier this year between Microsoft and in-car navigation device maker TomTom, which uses Linux in its devices.
The device maker defended its use of the technology at first and joined OIN, a network of Linux-supporting companies that pool patents and in return agree not to assert any patent rights against Linux. TomTom later changed its approach, though, and agreed to pay Microsoft patent licence fees for five years.
OIN has now asked people to find and submit earlier examples of the technology covered by the patents. Such examples are known as 'prior art' and can invalidate a patent.
"OIN's mission includes encouraging the Linux community to review patents-of-interest that may be of suspect quality or riddled by questions regarding prior art. Accordingly, the patents used in the recent TomTom patent action have been posted by OIN for review and submission of prior art by the Linux community," said an OIN statement.
"The patent vetting activity offered by the [OIN-run] Linux Defenders portal offers a unique opportunity to bring to bear the collective knowledge, passion and ingenuity of the Linux community to better explore the validity of the patents that were the subject of the recent action against TomTom," said OIN chief executive Keith Bergelt. "I encourage active participation from the entire Linux community so that other companies seeking to advance Linux strategies can be better informed about the quality of these patents."
Opponents of software patents have long argued that an overloaded patent system cannot keep track of technology developments and that poor patents are issued, either covering too-broad or already-covered ground. This allows the companies granted these payments to charge other, unrelated companies for use of either a wide variety of technologies or technologies invented by someone else entirely.
Bergelt recently spoke to technology law podcast OUT-LAW Radio, and explained the problem.
"You can’t simply do a Google search and pull up prior art. The level of complexity of data that exists in the world, the sorting and sifting process is still one that is extremely difficult and we're trying to make it efficient for relevant prior art to make its way through this defensive publications programme to patents examiners so in the future poor quality patents don't get issued," he said.
"From my view what I do is make the world safe for Linux and the democratisation of innovation," said Bergelt. "We all can appreciate there are a lot of patents that should have never been granted but instead of just railing against the system now there's the capacity for the community to actually become involved in remaking the future and affecting the past if we can get contribution to help invalidate some of these poor quality patents that are out there with the post issue peer to patent programme."
