Tuesday, August 16, 2005

LOOK AT 35 U.S.C. §103, AND NOT §101 (i.e., KNOWING WHERE TO DIRECT YOUR ANGER ON SOFTWARE PATENTS): In this recent post on Groklaw, an understandingly troubling situation was described, where J2 Global Communications (otherwise known as eFax), and Catchcurve (a patent holding company) have begun suing companies over patents relating to the transmission and retrieval of facsimile and other messages over a circuit or packet-switched network (the patents are detailed on Groklaw). One of the companies they hit was Mijanda, who offers a fax to email gateway hosting service on Asterisk, a GPL licensed general purpose IP-PBX available under GNU/Linux. You probably don't need me to tell you that when you mix patent rights and litigation with open-source, the combination is spectacularly explosive.

[Blogger note: for another discussion on patents, check out this thread on Patent Barristas]

Predictably, many of the comments called for the abolition of software patents. The part I found most interesting was that the comments would start out complaining how "obvious" and "ridiculous" the patents were, but would oddly conclude that, in light of this alleged obviousness, ALL software patents needed to be abolished. Personally, I don't know how obvious (if at all) the claims are in the asserted patents, but commingling anticipation and obviousness (35 U.S.C. §102-103) with nonstatutory subject matter (35 U.S.C. §101) won't get you very far in terms of understanding patent policy - the concepts are completely different.

Anticipation and obviousness means that someone else previously disclosed or invented the subject matter you are trying to claim (i.e., "thanks for showing up, but, unfortunately, this seat is taken"). However claiming nonstatutory subject matter means that you have no right to seek patent protection in the first place (i.e., "sorry, I won't let you in - we don't serve your kind here). While there are PLENTY of reasons to knock certain software patents over obviousness issues - which I will discuss in subsequent postings - I can't recall a single instance where a patent was brought to my attention that seriously warranted a 35 U.S.C. §101 analysis.

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