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USPTO Joins Patent Quality Cause

UPDATED: The United States Patent and Trademark Office (USPTO) is supporting projects to improve patent quality at a time when software patents are spurring controversy and dissent.

The USPTO, which has received flak for the way patents are scrutinized and approved, said it will work with IBM and Open Source Development Labs (OSDL) on three projects that use open source methodologies. The goal: attain the best prior art references to the examiner during the initial patent examination process.

The groups believe that high-quality patents increase certainty around intellectual property rights, reducing contention and freeing resources to focus on innovation.

The move, spearheaded by patent leader IBM after USPTO representatives met with members of the open source software community, is the latest protective measure taken at a time when so-called "patent trolls" snap up patents and use them to ambush innovators and demand money for using the patented technology.

"For years now, we have been hearing concerns from the software community about the patent system," Under Secretary of Commerce for Intellectual Property Jon Dudas commented. "It is important that those in the open source community are joining USPTO to provide resources that are key to examining software-related applications."

To wit, the Open Patent Review program will establish an open community review within the patenting process to improve the quality of patent examination.

Created with the USPTO, this program will encourage communities to review pending patent applications and to provide feedback to the patent office on existing prior art that may not have been discovered by the applicant or examiner.

Open Source Software as Prior Art will establish open source software, which boasts millions of lines of freely available computer source code, as potential prior art against patent applications.

OSDL, IBM, Novell, Red Hat and VA Software's SourceForge.net will develop a system that stores source code to meet legal requirements to qualify as prior art. This will let patent examiners and the public use open source software to help ensure that patents are issued only for actual software inventions.

The third endeavor is the Patent Quality Index, an initiative that will create a numeric index to assess the quality of patents and patent applications. The effort will be directed by Professor R. Polk Wagner of the University of Pennsylvania with support from IBM and others.

The USPTO has planned a public meeting to further the projects at its offices in Alexandria, Virginia on February 16, 2006.

Manny Schecter, associate general counsel for intellectual property law at IBM, said in an interview today the projects were sketched out in last month's open source community meeting with the USPTO to improve patent quality.

"The discussions between the patent office and the open source community was a natural outgrowth of some of the other discussions IBM has been having with the patent office," said Schecter. "We frequently tell the patent office our ideas on patent quality and these particular ones have gained some traction."

That IBM, the top patent earner in 2005 with 2,941, would shepherd such a movement is no surprise. As the patent leader for the last 13 years, Schecter said IBM feels it has an obligation to pay attention to matters like these and to address them.

IBM is also seeking to protect its millions of technology investments.

The company has been redoubling its patent protection efforts since its war with SCO over Linux.

Marc Ehrlich, patent portfolio manager at IBM, won't admit to a direct connection, between the SCO battle and IBM's patent-oriented maneuvers.

Instead, he compared the patent quality cause, to IBM's opening of 500 patents to developers of open source software so they can develop without fear of patent infringement.

"Here, what we're saying is that patent quality is very important to spur innovation and we're using those same type of collaborative innovation that we were trying to motivate with out pledge to motivate patent quality," Ehrlich said.

IBM and other companies also created the Open Invention Network to acquire patents and offer them royalty-free in order to extend open source operating systems worldwide.