Big Blue — one of the largest patent-holders in the United States — detailed its position at a media event in New York last week. Jim Stallings, vice-president, intellectual property and standards, launched an attack on the current patent process, arguing the methods adopted by the United States Patent office are flawed.
"There has been a dramatic increase in the number of filings of patents recently, around the world, but particularly in the United States," Stallings said.
"What's happened is it's challenged examiners' ability to inspect history, so the bias has been towards granting the patent," he said. "There is a process for after it is granted to challenge it. It's a very weak process. We are saying that process needs to be enhanced. It should not only be the job of the examiner, which is an individual, to grant that patent and to inspect prior art".
IBM was granted 3,248 patents in 2004 alone and made US$1.2 billion from associated royalties. According to the Stallings, IBM have over 10,000 applications for new patents in the United States awaiting processing and many thousands more around the world.
Stallings called on the industry to stop what he calls "bad behaviour" by companies who either seek patents for unoriginal work or collect and hoard patents.
"If you are a company and invent patents you should state your intent to use them and there should be a period of time in which you have to use them," he said. "There are companies that are in the business [of] simply collecting and want to sleep on it."
"We think software patents are important, but they should be granted for things that are new," he added. "We're open to sharing information about the patent itself to prove that it's new. And we think everyone should be held to that standard".
While Stallings said patents were a "global debate" for the developed and developing world, he did not see a need for a global body to administer patents.
"There are pan-geographic organisations that allow companies like IBM to file and later be granted a patent. This is not about fixing it at that level, we're talking about fixing it at a country level."
IBM's antidote to the problem is to increase the scope of the investigation into 'prior art' associated with software patents. Stallings believes that sort of undertaking is something the academic community, volunteers and others are willing to help in.
"Because of the Internet, you can have thousands if not millions of individuals around the world share information about whether that invention actually took place years and years ago. You'll find volunteers and others interested in a public inspection of patents. The technology [currently] exists for that."
"We are saying that the granting of it, inspection of it, challenge, and post grant should be enhanced to take full advantage of new technologies and also the brain power of people around the world to make sure it is truly new things that are coming out."
Mixing open source with proprietary
As IBM looks to market both proprietary and open source products to customers through its services operation, mixing the two is presenting a challenge to the company.
The ongoing SCO litigation, based on allegations that Big Blue misappropriated SCO's Unix technology and built it into Linux, has highlighted these problems .
Stallings claimed the case had not stopped the uptake of Linux, saying instead the proceedings increased awareness of the operating system and its popularity. However, organisations such as Centrelink in Australia have acknowledged the case has affected their deployment of the open source software.
IBM is looking to protect itself from litigation in future by laying down guidelines that cover open source development and downstream issues such as the mixing of proprietary with open source solutions.
"What you have happening is a set of new inventions happening by communities and the laws don't necessarily address how communities will come up with new things and [the fact] those new things get implemented in solutions vendors will use," Stallings said. "We're advocating a revisit to a lot of those. We're also advocating a set of guidelines on how to address collaborative innovation and proprietary [innovation]."
"There are others who believe that no software patents are valid," he added. We certainly don't believe in that, because we have many thousands of software patents and customers trust us to be the true owners of those, so we believe it is somewhere in the middle that is appropriate for laws to govern behaviour around patents."
Brendon Chase travelled to New York as a guest of IBM.