(Hint: he’s against them … and I am too)
No link here, this come through the inbox with this title, “The Case against Literary (and Software) Patents” and this descriptor, “Issue #125, August 28, 2009; by Timothy B. Lee.”
If you really feel the need to do some clicking here’s the footer, “Timothy B. Lee is an adjunct scholar at the Cato Institute in Washington, DC. To subscribe or see a list of all previous TechKnowledge articles, visit www.cato.org/tech/tk-index.html.”
I’m going to pull from this excellent piece by Lee, but I’m betting you can find the whole thing following that last link up there. It’s worth the read.
Software patents have been a drain on the IT world for a while and things have become simply out of hand. If you’ve never looked too deeply into the topic, or even never have heard of it, it’s shocking in how the US Patent and Trademark Office has been willingly misused by IT firms. Usually very big IT firms.
From the essay:
Patent protection was first extended to software in the 1980s, and the practice accelerated in the 1990s. As a result, it is now difficult to create any significant software without infringing a patent. With tens of thousands of software patents granted every year, and no effective indexing method for software patents, there is no cost-effective way to determine which patents cover any piece of software.
Stanford law professor Mark Lemley has documented the unsurprising result: most firms in the IT industry have simply given up trying to avoid patent infringement. Instead, larger firms stockpile patents to use as ammunition when they are inevitably sued for infringement. They also sign broad cross-licensing agreements with other large firms promising not to sue one another. This has prevented patents from bringing the software industry to a standstill, but it’s hard to see how the practice promotes innovation.
Even worse, software patents tilt the playing field against smaller and more innovative software firms. Most small firms develop their technology independently of their larger competitors, but this isn’t enough to prevent liability; incumbents have so many broad software patents that it’s impossible to enter many software markets without infringing some of them. Small firms don�t have the large patent arsenals they need to negotiate for cross-licensing agreements with their rivals. As a consequence, incumbents can use their patent portfolios to drive smaller competitors out of business. Other small firms are forced to pay stiff licensing fees as a cost of entering the software industry. The result is to limit competition rather than promote innovation.
The Supreme Court has been taking steps to rein in the patent bar in recent decisions such as KSR v. Teleflex. But the Court hasn’t directly addressed the patentability of software since 1981, when it ruled (as it had on two previous occasions) that software is ineligible for patent protection. In the intervening years, the United States Court of Appeals for the Federal Circuit, which hears all patent appeals, has seemed to stray far from that principle. But the Supremes have not reviewed any of its key decisions.
The patent at issue in Bilski is not a software patent; it is a “business method” patent that claims a strategy for hedging against financial risk. But the case is being closely watched for its effects on the software patent issue. Patented business methods are often implemented in software; for example, a key decision on the patentability of software, State Street Bank v. Signature Financial Group, involved a software-implemented business method. And the standard articulated by the Federal Circuit in Bilski, known as the �machine-or-transformation test� has been used by the Patent Office in recent months to invalidate several software patents. The Supreme Court could ratify the Federal Circuit’s mildly restrictive standard, or it could articulate its own standard that is either more or less restrictive of patents on software.