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On software patents

By Lawrence B. Ebert, Esq.

See the discussion by Jonathan Corbet titled: An afternoon among the patent lawyers, [concerning a session at the Wolf Law Building, University of Colorado at Boulder March 19, 2009 ] which included text :

Beyond their basis in legislation, patents should, according to the US constitution, serve to encourage innovation in their field. Do software patents work this way? Here there was more debate, with even the stronger patent supporters being hard put to cite many examples. One example that did come up was the RSA patent, cited by Kevin Luo; without that patent, he says, RSA Security would not have been able to commercialize public key encryption. Whether this technique would not have been invented in the absence of patent protection was not discussed.

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For example, Michael Meurer, co-author of Patent Failure, has no real interest in abolishing software patents, but he argues that they do not work in their current form. Patents are supposed to be a property right, but they currently "perform poorly as property," with software patents being especially bad. That, he says, is why software developers tend to dislike patents, something which distinguishes them from practitioners of almost every other field. Patents are afflicted by vague language and "fuzzy boundaries" that make it impossible to know what has really been patented, so they don't really deliver any rewards to innovators.

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A related topic, one which came up several times, is "inadvertent infringement." This is what happens when somebody infringes on a patent without even knowing that it exists - independent invention, in other words. John Duffy said that the amount of inadvertent infringement going on serves as a good measure of the health of the patent system in general. In an environment where patents are not given for obvious ideas, inadvertent infringement should be relatively rare. And, in some fields (biotechnology and pharmaceuticals, for example), it tends not to be a problem.

In the software realm, though, inadvertent infringement is a big problem. Mark Lemley asserted a couple of times that actual copying of patented technology is only alleged in a tiny fraction of software patent suits. In other words, most litigation stems from inadvertent infringement. Michael Meurer added that there is a direct correlation between the amount of money a company spends on research and development and the likelihood that it will be sued for patent infringement. In most fields, he notes, piracy (his word) of patents is used as a substitute for research and development, so one would ordinarily see most suits leveled against companies which don't do their own R&D. In software, the companies which are innovating are the ones being sued.

Evil patent lawyers were mentioned-->

John Posthumus added that no company with less than about $50 million in annual revenue can afford to fight a patent suit; smaller companies will simply be destroyed by the attempt. Patent lawyers know this, so they employ every trick they know to stretch out patent cases, making them as expensive as possible.

Full post as published by IPBiz on April 11, 2009 (boomark / email).