Thoughts on Software IP and Patents

A journalist contacted me the other day to ask what I thought about the story that broke earlier in the week about IP Innovation suing Red Hat and Novell over alleged patent infringements associated with Linux operating system.

My comments on this were along the following lines:

This kind of action was an inevitable development, even though it goes against the grain for many. While most would regard the existence of legal intermediaries who profit from such actions as distasteful, especially when it appears to undermine the positive efforts of the open source community, that community cannot resource the world’s software development requirements. The basic right for commercial organisations to protect the fruits of their investment in research and development therefore remains important to ensure continued innovation across the industry.

That said, while I cannot comment on the specific case at hand, a general problem exists in that there is a continuum of ‘originality’ when it comes to inventions. Some patents are clearly ‘right and proper’, but issues arise in greyer areas, particularly when someone is the first to invent and patent something that others would, or indeed have, subsequently come up with independently because it is an obvious or natural way of solving a problem. The patent review process does not always capture these.

There are also undoubtedly some patents endorsed many years ago that would probably not be approved today as the world has moved on, and by modern standards, they just don’t seem that special. Such patents are actually counter-productive in that they act as a constraint on innovation in a way that common sense says is unjustified.

Against this background, the cat and mouse games around patents that are being played at the moment are an unwelcome distraction. If vendors are blatantly using or encouraging patent related actions simply as a competitive spoiling tactic, or using the threat of action, whether implicit or explicit, to perpetuate fear, uncertainty and doubt, their customers should speak out against them. That is not the way a good software partner should behave.

It is such a complex area though, and taking an extreme stance either one way or the other doesn’t really help. We need a balanced approach and an appropriate review process to ensure that patents reflecting genuine investment in innovation are respected, but scatter-gun or speculative registrations do not stand in the way of progress.