Falling through the cracks: The problem of granting software patents

There has been much discussion generated by the open source community with
respect to patents. Specifically, the granting of software patents in the US has
morphed into a strained and uncontrollable system due to the sheer volume of
software patent applications it receives. It has been suggested that software patents
are being granted without closer examination as to whether applications meet all of
the necessary criteria. This has caused a major rift between software patent owners
and the open source community, primarily as a result of software patent owners being
granted their patents for claims that technically should be open and free to use in the
open source community. The software patents that are being granted fall through the
cracks of a patent system that has impacted on the Internet and software space. There
have been numerous attempts to redress the imbalance of power that lies with the
patent owner by various organisations, one being the Electronic Frontier Foundation
(EFF). The EFF established ‘The Patent Busting Project’ in order to combat the
validity of software patents that ought to be invalid due to the existence (although
mostly undocumented) of prior art in the information and communications technology
(ICT) industry. Whether the project has been effective in challenging the validity of
software patents is presently uncertain. This paper will discuss and evaluate whether
the EFF Patent Busting Project is an effective tool in addressing the conflicts that
arise within the patent arena and open source licensing.