On software patents
Lodsys story is generating a lot of buzz on the net.
People argue that the whole software patent system is screwed up. Personally, I tend to agree that copyright is enough in software as, generally speaking, the implementation of the idea is much more complex than the idea. Think app store — it’s one thing to come up with an idea of it and quite another thing to create a viable platform, create libraries, attract developers, go through the approval process, etc.
The other part of the problem is that software patents are supposed to protect a small inventor against bigger players that can copy his or her work. Well, that doesn’t work too well because enforcing a perfectly valid patent against a larger corporation can cost millions of dollars in litigation costs. It’s quite cost prohibitive and there are just not so many cases of this. Also, most of the big players on the market have huge patent portfolios and can always counter-sue either increasing the cost of litigation or making it a wash. There are just not so many of the successful examples of where a small guy got protected by the patent system.
Having said that, I don’t believe for a second the government will have the audacity to abolish the software patent system. Even suspension of granting new software patents while the system is kept intact would be too big of a pull to swallow. However, there are certainly ways the government could deal with the issue.
A big part of the problem is granting crazy patents such as MacroSolve’s one. USPTO is swarmed with patent application and has a multi year backlog. It doesn’t have enough of the qualified personal to evaluate all the patents properly and compare them against the prior art. In this case, the solution could be crowd-sourcing. There are a lot of interested parties out there that would be happy to help USPTO with the research and try to invalidate rogue applications before they become full fledged patents.
There are plenty of concerned organizations and people and this process can be designed to make a financial sense for large companies and concerned groups to voluntarily participate in the process and provide USPTO with their research on prior art and validity of patents.
Another thing the government could do is to prohibit several areas of software from being patentable. User interfaces, file formats, protocols, things like that. Explicitly prohibit patenting different data types: if you communicate a piece of data over the network and store it on the server it doesn’t matter if it’s a geo-location or a credit card charge. Has anyone send information from a phone to the server and stored it there? Then it’s a prior art.
Overall, an open process with some adjustments to what’s patentable and what’s not could result in much better patent system. I have a feeling that guys like Lodsys will eventually generate enough will in the community to break the status quo and push for a reform.
