IS OSDL TRYING TO CREATE A "BOUNTYQUEST-LITE?" Open Source Development Labs (OSDL), a global consortium dedicated to accelerating the adoption of Linux, recently announced the OSDL patent commons project designed to provide a central location where software patents and patent pledges will be housed for the benefit of the open source development community and industry.
While these patent pledges will do little to deter claims of patent infringement on open-source, OSDL is apparently taking a step further by preparing an expansion of the project's scope to include information on the website that might be used to overturn questionable software patents. OSDL is combining forces with the Public Patent Foundation, the Electronic Frontier Foundation 's Patent Busting Project and other groups, to provide easier access to companies seeking invalidating prior art.
Although there are no specific details yet, this is a great idea in principle. By openly publishing prior art (especially the non-patent variety), this action will do exponentially more to deter aggressive patentees than the simple act of sharing patents. Nothing scares a patentee more than the knowledge that invalidating prior art is being distributed among potential defendants.
For those of you that remember, BountyQuest used to be a Web-based service that connected those who seek prior art to invalidate a patent, with those who might be able to find it (the service went kaput around 2002). Typically, "posters" (i.e., people or companies who want to invalidate a patent) posted a bounty on a problematic patent. Posters usually listed the patent number and a description of the art they want to invalidate. "Bounty Hunters" who registered with BountyQuest for free could submit anything in the public domain that they think describes the same technology. The first Hunter to submit prior art that meets the Poster’s criteria wins the bounty.
One of the problems with BountyQuest was that BountyQuest’s stated policy was to award bounties only when a single piece of prior art fulfills the Poster’s requirements. Members of the community objected to this policy, stating that the requirement was not realistic. A single piece of art can invalidate a patent for lack of novelty, but the policy completely ignores questions of obviousness. In fact, it is quite rare when a single piece of art invalidates all of a patent’s claims. Accordingly, Hunters quickly recognized that they would receive no payment for submitting art, even though the art would be of great use to the Poster while not meeting the exact criteria of the posting. Subsequently, the project fizzled out.
It will be interesting to see what kind of system the OSDL will come up with. Having companies like IBM, Novell, Red Hat, Philips Electronics and Sony in your corner could certainly open up a wealth of technical documents that the public could access.