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Why We Can’t Wait For Real Software Patent Reform

David Kappos runs the United States Patent and Trademark Office. On Tuesday he gave a speech at the Center for American Progress where he gave a full throated defense of software patents. Here is a link to a pretty good article on the speech: http://arstechnica.com/tech-policy/2012/11/us-patent-chief-to-software-patent-critics-give-it-a-rest-already/

What really got me going after reading the article was this quote: “Give it a rest already. Give the AIA [America Invents Act] a chance to work. Give it a chance to even get started.”

Mr. Kappos is dead wrong. Software patents are stifling innovation and the law must be changed now to allow developers to create software without fear of patent infringement lawsuits from patent trolls.

In today’s world, open source software projects fuel the most important innovations in technology. Software patents issued before cloud computing even existed are being used by patent trolls to attack legitimate and important open source development projects. When defending a patent lawsuit costs upwards of $4 million, very few companies can afford to defend these suits, so they settle or go out of business. It is shameful that our legal system allows this. No other country has this problem. We are putting ourselves at a competitive disadvantage.

As for the facts that Mr. Kappos wants us to look at before we criticize, a Boston University study by Bessen and Meurer estimated that the direct costs of patent assertions from non-practicing entities (NPEs), or patent trolls, totaled about $29 billion in 2011, up from $7 billion in 2005.

For David Kappos to tell us that we should shut up and wait for the America Invents Act to work is not acceptable. Let’s solve the problem. Developing, distributing or running a program on an ordinary computer should not constitute patent infringement. This article by Richard Stallman in Wired makes the case.

To help in the fight against patent trolls we recently launched a job on Elance (sign-in required) for the documentation of solutions developed in the OpenStack community. We hope to keep these fundamental cloud computing technologies open and publicly available for everyone to use, including our competitors. We also hope this will help keep these technologies out of the claws of patent trolls.

About the Author

This is a post written and contributed by Alan Schoenbaum.

Alan Schoenbaum is Special Counsel for Rackspace.

Prior to joining Rackspace in 2005, he was a partner at Akin Gump Strauss Hauer & Feld LLP in San Antonio, Texas. Alan has more than 25 years of experience in corporate and securities law and mergers and acquisitions. Throughout his legal career he has represented public and private growth companies, venture capital funds and their portfolio companies. Alan received his B.A. in English and his law degree from the University of Texas at Austin.


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