Patent trolls, tread carefully in 2014

Last year, we saw tremendous moments in the story of software patents and patent trolls. It’s possible we’ll even see substantial change in the near future. Here are some of the key landmarks of 2013 and portents for 2014.

Patent trolls are on notice

From an already shady reputation, patent trolls sank to claim the dubious title of public enemy No. 1 for netizens in 2013 — even President Obama accused them of extortion. After months of campaigning from organizations like the Electronic Frontier Foundation, as well as from a growing number of non-IT businesses that had been attacked for their use of very ordinary software like scanners, the Innovation Bill was introduced to Congress and so far has cleared the House of Representatives.

[ Simon Phipps tells it like it is: Why software patents are evil. | Track the latest trends in open source with InfoWorld’s Technology: Open Source newsletter. ]

The purpose of this legislation is to get rid of abusive patent lawsuits, notably those that target end customers and harm their confidence in software producers. Provisions of the bill include transparency requirements and a “customer stay” option, which prevents attacks against end-users when manufacturers agree to handle the case themselves. The bill is a good starting point for reform, but some fear it deals with businesses whose only activity is patent trolling while giving a free pass to those who have other lines of business in addition to patents and those who hide behind consortia.

Patent wars in limbo

Meanwhile in New Zealand, the government showed what leadership actually means in this debate. To put a stop to never-ending lawsuits, the legislators announced that software would no longer be patentable. Amendments to the Patents Bill were voted accordingly.

In the absence of such wisdom here, the patent war between corporate giants reached a point of no return in the mobile industry. This led Google to acquire an unprecedented portfolio of trivial patents, though with the provision they wouldn’t be used in open source cases unless to strike back. The action highlights the absurdity of the patent war and its disconnection from any real innovation.

In 2014, we’ll see whether the Democrats have the guts to follow through and pass the Innovation Bill in the Senate, as well as for signs that legislators realize they have to do much more in the way of software patent reform if they are to prevent patent trolls of all sizes from stifling competition and innovation. If they drop the ball, the resulting escalation of the patent wars could seriously impact the technology industry in the United States, tipping an advantage to more progressive economies — even Europe.

Friends of the court weigh in

Software patents have been getting a free pass for years, riding the assumption that patents promote research and innovation. Finally, in 2013, these ideas were seriously questioned in court, both in the United States and in Europe. Notably, the Alice vs. CLS Bank suit reopened the case law concerning whether software shall be considered as an abstract idea (and thus not patentable) or as a valid topic for patents.

Given the current trend in the case, it seems more plausible than ever that software patents will be as severely restricted in the United States as they are in many parts of Europe. Of course, more reform is needed, but other cases coming to the Supreme Court could provide impetus. Just last week saw key cases granted a hearing by the Supreme Court, and on Monday, the same court denied further recourse against the crusading Newegg for a pernicious patent troll. In addition, the New York Attorney General struck a blow against the scanner patent troll. Fortunately for us all, there are plenty of champions of software freedom willing to become friends of the court in cases like these.

Overall, 2013 was a surprisingly positive year for open source and software freedom with regard to patents. Realizing the harm that can arise from applying industrial-era patents to a post-industrial Internet, both courts and legislators are finally rising to the challenge. 2014 could be a crucial year for the meshed society.

[Thanks to my colleague Alexandra Combes, who contributed valuable input to this story.]

This article, “Patent trolls, tread carefully in 2014,” was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.