April 07 has been ‘character forming’ for individuals and organizations filing software patents, for a number of reasons.

Now I know that readers of this blog are much more interested in DRM and IPR than patent, but it can be rather fun to watch what is happening in the wacky world of patents, and it can sometimes affect the otherwise rather more predictable world of Copyright.

Now the biggest reason followed litigation between Microsoft and AT&T.  Basically AT&T sued Microsoft for royalties over all the copies of their software pirated around the world.  The US judges finally agreed that AT&T could have payment for what happened in the USA, but not outside it. 

So for the very first time, a US court established that a US patent was only enforceable inside of the USA.  So by implication, if you wanted patents in other countries you had better file them in those countries and obtain relief in those countries. 

Now you might well say, “Why should I care?”  And that would be a good question, except that this is the first time that we have seen the US courts step back from acting as if US regulation applied throughout the world.  So you might want to care, because that is a sea change in attitude, and also in the protection that the courts are likely to provide across the board and the damages they are likely to award.

The second biggest reason is that the US Supreme Court has decided that the test of originality for patents was unhelpful, and that a different test should be used.

Now for IPR and Copyright holders this might sound more than just a bit abstract, but bear with me a moment.

The IT industry has relied substantially upon obtaining patents of software implementations of things, rather than going for Copyright.  In the rest of the world you can’t patent software, or even implementations of business processes, and the test for granting a patent is said to be higher because there must be originality – it must NOT be an obvious development that any expert would have foreseen at the time.  But patents are easier to litigate over because most of the cards are in the hands of the patent holder.

So there is a potential ‘double whammy’ against software patent holders, some of whom are said to be nothing more than businesses that have bought up patents and are waiting for companies to make enough money that they are worth suing in the USA.  It looks like they will in future have less to gain, and may have their patents more readily dismissed.

Maybe, when they are pushed back into using Copyright, there will be a lot more interest in providing solutions that benefit Copyright holders better in an age where digital copying and theft of IPR is increasingly rampant.