2005-01-07 US BSA Concerned about Patent Litigation Costs
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In a new paper, the Business Software Alliance (BSA), a copyright enforcement initiative financed mainly by Microsoft, raises concerns about "spiraling litigation costs over patenting rights" which "threaten to stifle innovation". BSA is particularly worried about small patent licensing companies that specialise on attacking large companies.
- BSA recommends only minor reforms of the US patent system. In principle, BSA wants software to be patentable in the US, in Europe and everywhere.
- The paper is part of a "CEO Initiative", with other documents to follow.
Quotes from the BSA paper
In recent years, the number of patent lawsuits filed against software companies has increased substantially. In some instances, these suits are based on poor-quality patents, and companies have had to defend themselves in situations where the legal merits of the suit have been questionable.
Reduce the Disruptions Caused by Litigation
Today, injunction can be obtained on a mere showing of likelihood of success, with enormous potential for disruptive effects. For example, as few as 1,000 lines of code, in a program consisting of over 5,000,000 lines, may be the subject of an alleged infringement action. Under current rules, an injunction may well make it impossible to continue selling the product as a whole while the litigation is pending. This is clearly an unfair and disruptive threat.
Comment
Hartmut Pilch remarks:
It is more realistic to assume that a patent is normally infringed on by 10 or fewer lines of code. A normal patent claim contains only the information that is normally written in 1 line.
It is interesting that BSA uses the word "unfair". This could relate to the copyright part of TRIPs article 13 that says:
- "Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder."
Indeed the rights of copyright holders are being unfairly compromised by patent holders. We already have an international treaty that forbids us to legislate in a manner that unreasonably prejudices the legitimate interests of the copyright holder.
Report in Washington Post 2005-01-05
The BSA also proposed changes to U.S. patent law. The technology industry is facing spiraling litigation costs over patent rights, which the BSA said threatens to stifle innovation.
One problem is that as patents have proliferated, a new kind of business has emerged in which companies seek to enforce patents solely to make money, not to use the technology. Even when the patents are not likely to stand up in court, companies often settle with the patent owners rather than go through costly legal battles.