Comments to USPTO on How to Improve Patent Applications: Red Hat's and Morrison and Foerster's ~pj

The USPTO has been asking the public to respond to a series of questions with suggestions on improving patents. It is aware that the technical community isn't happy with the way patents are being issued, particularly software patents. You are familiar with some of the USPTO's questions, because we at Groklaw responded to two of them, topic 1 on how to improve software patents, regarding functional language, and topic 2, suggestions for future topics for discussion.

There are now comments publicly available on the USPTO's website responding to a third question also, this one about improving patent applications. It has some suggestions for consideration regarding clarifying the scope of claims and the meanings of claim terms in specifications. I thought you'd like to see what Red Hat and Morrison & Foerster [PDFs] had to say. These days Morrison & Foerster seems to find its firm representing the old guard in the smartphone patent wars, and of course Red Hat reliably upholds the interests of the new guys on the block, Open Source. Red Hat points out to the PTO, quoting Tim O'Reilly, that were it not for Open Source, there'd be no Google, Twitter, Facebook, or Amazon:

As one seasoned observer has noted, many best-known brands (like Twitter, Facebook, Amazon, and Google) "were built on a foundation of open source software, and wouldn't exist without the ... [open standards and protocols of the] Internet and the world wide web, Linux, and the cornucopia of open source tools and languages that made the fertile soup from which today's tech innovation sprang."

That hopefully will help the PTO to realize that catering only to the old guard would be damaging. Open Source is now mainstream, and that means the USPTO's old way of doing things with respect to patents -- particularly software patents -- needs to be adjusted to accommodate the new. Happily, the USPTO seems to realize this, and so while Red Hat thinks some changes require changes in law, it commends them for this effort, the Software Partnership:

Nonetheless, we see a clear nexus between the growing thicket of software patents and abusive patent litigation, so we support and encourage the PTO's Partnership, its systematic examination of the issues identified in the Federal Register Notice, and its efforts at improving quality. Indeed, we believe the agency should accelerate and expand these important initiatives.

Tactfully, it indicates that there are more problems to be addressed that the PTO has yet to identify.