Cautiously Optimistic

(via tbray) Here’s something you don’t see every day. A lawyer… from a large enterprise company (SUNW)… talking publicly about pending litigation… and sounding both reasonable and human in the process ;) It’s a brave new word. The topic? Patent troll cases. Two of them, both ludicrous from the looks of it. There is hope though:

You may believe that these are isolated examples. However, during the same time Sun was sued in these two cases, eight mobile phone companies, four major internet retailers and three computer companies were all sued for infringement by patent holding companies.

If this sounds like a waste of time, money and resources – it is. But, there have been some recent changes, both legislative and judicial, that make me feel at least a slight bit optimistic for a change.

On April 18th of this year, a bipartisan and bicameral bill was introduced in Congress entitled the “Patent Reform Act of 2007”.

Recently, the U.S. Supreme Court also announced two important decisions that provide more immediate relief. In Microsoft v. AT&T Corp. the court ruled 7-1 that “golden masters” shipped by Microsoft for installation on computers made and sold abroad are not “components” pursuant to 35 U.S.C. Sec. 271(f). Under U.S. patent law, no infringement occurs when a product that is the subject of a U.S. patent is made or sold in another country. It may be an infringement of a foreign patent, but U.S. patent laws do not apply. The exception is Section 271(f) which was enacted in 1984 in response to a case involving (of all things) shrimp deveining equipment. The defendant in that case conceded that it was prohibited from making or selling the infringing equipment in the U.S., but successfully argued that there was nothing in the law that prevented it from making the components for the equipment in the US and then having the assembled abroad.

and

In the current case, Microsoft conceded that it infringed AT&T patents related to digital speech compression. But, they objected to AT&T’s claim that a golden master should be considered a component under 271(f) and Microsoft, accordingly, liable for foreign damages.

In siding with Microsoft’s position, the court has brought some rationality into the world of software patents. Indeed, many in the software industry have been watching this case closely and considering whether (assuming the original decision was unchanged) it would be a reason for moving development efforts offshore.

How ironic that it was a Microsoft assertion that “brought some rationality into the world of software patents”, but there you have it. Hope that the pendulum may be swinging back to a more reasonable landscape where real innovation is protected and encouraged while litigious bastards, patents trolls and asininely obvious “innovations” are seen as such. At this point, I’ll take slight optimism. It’s a start.

–jeremy