Why I'm Rooting for Microsoft

It will not have escaped your notice that the patent system has been the subject of several posts on this blog, or that the general tenor is pretty simple: it's broken, and nowhere more evidently so than for software. Anyone can see that, but...

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It will not have escaped your notice that the patent system has been the subject of several posts on this blog, or that the general tenor is pretty simple: it's broken, and nowhere more evidently so than for software. Anyone can see that, but what is much harder is seeing how to fix it given the huge vested interests at work here.

Although I'd prefer the entire system to be swept away at a stroke, I think that is somewhat unlikely, so I may have to settle for progressive improvements. And given the general inability of politicians to free themselves from the well-paid lobbyists in this area, the most promising avenue for change is probably that the companies most affected by software patents should do something about it through the courts.

Here's what many now regard as one of the most hopeful moves in this area. What may surprise is that it's from Microsoft, a company that is not often regarded as a victim of the patent system. But what is perhaps even more surprising is the range of support its appeal against an earlier court ruling has garnered, include a joint amicus curiae brief [.pdf] from Google, Verizon, Dell, HP, HTC and Wal-Mart, and another joint one [.pdf] from the EFF, joined by Public Knowledge, the Computer & Communications Industry Association and the Apache Software Foundation. Others have been filed by most of the leading computer companies, including Apple, Intel, Facebook and Yahoo.

Here's the EFF's excellent explanation of what's at stake here:

In court, parties have to prove their case by some "standard of proof." In almost all civil cases, the standard is "preponderance of the evidence" - meaning it is more likely than not that the facts are true. When the question is invalidating a patent, however, the U.S. Court of Appeals for the Federal Circuit decided that a defendant trying to prove a patent invalid must do so by a higher standard than normal civil cases, that of "clear and convincing" evidence. "Clear and convincing" means that the facts are "highly probable," which is a much more difficult standard to meet than just a preponderance.

In a case three years ago, the Supreme Court had suggested that this high standard of proof should not apply where the prior art involved was not considered by the Patent Office before it issued the patent. Even still, the Federal Circuit has left the clear and convincing evidence standard untouched.

In today's case, i4i Ltd. had sued Microsoft for patent infringement. i4i claimed its patent covered editing documents that contain markup languages like XML (Microsoft Word had XML editing capabilities). Microsoft had argued that i4i's patent was invalid because the disclosed invention had been embodied in a software product sold in the United States more than a year before the patent application was filed – prior art that the patent examiner did not consider. The Federal Circuit applied its clear and convincing standard and rejected Microsoft's invalidity argument. Microsoft petitioned the Supreme Court for certiorari, and was supported by eleven amicus briefs, including EFF's. That Court has now granted Microsoft's request to decide whether the Federal Circuit's standard of proof rule is correct.

As can be seen from this, one of the key issues here is prior art – the fact that the claimed idea already existed before the patent was applied for, but the patent examiner didn't take this fact into consideration. This is one of the biggest gripes of the free software world – that software patents are routinely being granted for ideas that have been common currency for years. But as the brief from the EFF, Public Knowledge and Apache Software Foundation explains, there are particular problems faced by open sourcers coders in demonstrating their prior art:

the FOSS business model makes it nearly impossible to collect prior art in a format that makes it useful as potentially invalidating under current Federal Circuit guidelines. To fend off patent threats, FOSS projects often depend on the collective knowledge of their members and the documentation of the projects as prior art, to the extent that such documents exist.

Much of this collective knowledge, however, arguably could not be considered as evidence under the Federal Circuit's current standard requiring alleged infringers to provide invalidity by "clear and convincing" evidence. Indeed, the opinion below may be read to hold that, without obtaining a full set of source code, a party could not rely on evidence of the operation of the source code to invalidate a patent.

In the FOSS context, that full set may be extremely difficult to assemble. For example, consider various emails exchanged between developers all over the world, each with different snippets of code and comments. Some of those developers may archive their email; other will not, or will not do so in an easily searchable form.

Moreover, if the culture of software development tends to be informal, FOSS development is still more informal. Documentation is likely to take the form of emails or postings to internet message boards and newsgroups that are much more informal than traditional academic research or industry publications. Further, more often than not, no party is tasked with maintaining copies of the source code that makes up the FOSS and it often gets lost and becomes unobtainable at a later date when needed in litigation.

Thus, holders of patents that are unnecessarily virtually indestructible because of the inflated standard for proving invalidity pose a particular threat to FOSS. That, in turn, threatens the public interest in promoting the innovative activities that would take place but for these lawsuits and the mere threat of these suits.

Currently, the bar for overturning a patent once granted is set so high that it has only been in rare cases that such non-inventive inventions have had their patents rescinded. If Microsoft and its many friends prevail in this next court action in the Supreme Court, that could change dramatically, allowing poor software patents to be challenged much more easily, not least by the open source community.

That's not a perfect solution, but it's much better than what we have now. And it's why I for one shall be cheering Microsoft on when this case comes to court.

Follow me @glynmoody on Twitter or identi.ca.

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