Prior aRt and Software Patents
April 21, 2008 10 Comments
We’ve just begun a new project at Mozilla to create a tool that can help defend against invalid software patents. The project is currently sponsored by Mozilla and Emily Berger of the EFF. The problem is that when patents are asserted or enforced, it’s difficult, expensive, and time consuming to find the references (documents or other software/systems) that contain the elements of the asserted patent claims, also known as prior art. Finding prior art is often one of the key defenses to claims of patent infringement; however, this part of the process is archaic, subjective, resource intensive, and inefficient. The result is that valuable resources are diverted from innovation and R&D to non-productive patent defense costs (when I practiced as a patent litigator, no doubt I didn’t think it was non-productive). The harm goes beyond hard costs, even the mere specter of an infringement claim can stall and delay the adoption of technology and products, or impose additional costs in the form of royalties and damages that has the same effect.
This is great for the legal industry, but not so good for those who are defending against such claims. A key assumption underlying the project is that non-patented commercial and non-commercial software developments present a huge, and untapped, reservoir of prior art which software patents should be – and currently are not– tested against. There are many other good efforts to improve the patent process, some like the P2P project focused on improving the patent examination process, and others focused on changing the legal framework, such as the Patent Reform Act. These are good efforts, but there are other opportunities for improvement.
Our goal is to spec out the project, build a beta and see if it works. If it does, we’ll extend and enhance, if not, we’ll try something else. The details of the project are at: http://wiki.mozilla.org/Legal:Prior_Art#Summary.