The victory of Eolas Technologies in its patent infringement lawsuit against Microsoft, as I noted yesterday (“Termination Dust for Web Apps?”) has a lot of people in the open source and standards commmunity as well. Ten years of standards development is about to be upended, it seems, by a one-person company with no product except a passle of patents licensed from the University of California.

It seems ironic that the University of California was on the other end of the stick some time back when it was sued by AT&T for patent infringement for its development of BSD Unix–a case which it won, and which put a substantial amount of Unix technology into the public domain. Now, it's putting the same open source community on the spot again–unless, of course, Eolas and UC act to allow open source development based on their patents to continue, or a higher court overturns the decision against Microsoft.

The patents that Eolas claims are disturbingly broad in scope, and would seem to be undermined by significant “prior art” elsewhere in the software world/.

Of course, the Patent and Trademark Office (PTO) is incapable of screening effectively for patents that infringe on unpatented (but copyrighted) work, because there's no link between the patent and copyright systems–patents are governed by the Department of Commerce, and copyrights by the Library of Congress (which isn't even in the executive branch, to my knowledge). And the PTO is woefully understaffed, underfunded (it operates solely on the funds it takes in in patent fees) and, based on the evidence, just plain full of idiots to begin with.

Copyrights are relatively easy to enforce than patents (especially when it comes to software), and not as damaging to innovation. It's easier for the poor downtrodden masses to file for a copyright (you don't need a lawyer to do it), and copyright is protected by common law in most cases. Patents, on the other hand, are generally available to anybody who can pay the lawyers to fill out the forms cryptically enough, and they not only prevent copying but can be used to prevent innovation by others.

The threat posed by software patents extends to Europe as well, where the EU has been considering a new law governing them. If passed there, it could be a spanner in the works for everybody. As Simon Phipps says: “Without a legal protection for standards against retrospective attack by software patents we will suffer death by a thousand gold-diggers as we try to navigate into the massively-connected future. ”

There are two ways to fix the disconnect between patents and coyrights. The first way is to unify the patent and copyright systems, either by some sort of shared knowledge base (or by patent inspectors using a search engine to look for prior art as part of the patent approval process, which they rarely do). But as Otter said in Animal house, “that could take years, and cost millions of lives.”

The other way is simpler: ban software patents. Period. And that's a move I can get behind.