IT Observer - Patents in an open source world

Patents in an open source world
Tuesday, 27 July 2004, 09:14 GMT

Does the dramatic increase in the number of software patents portend a catastrophe for open source software?

Some argue that the threat of patents is vastly overstated. They point out that, while there are from time to time serious assertions of software patents, patent litigation is in practice very rare. This reflects both the high cost of such litigation and the difficulty of winning.

It is true that obtaining a patent is much easier than having to prove its validity in court. A patent is awarded by civil servant patent examiners in a government office based on limited information, whereas litigation involves skilled software experts and patent attorneys who leave no stones unturned to find prior art or other legal arguments for invalidity. The presumption of validity evidenced by a plaque from the Patent Office can be overcome by clear and convincing evidence that the patent is invalid. Companies recognize that they should assert patent infringement only of patents whose validity is clear.

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