Timothy Lee’s “Disruptive economics” blog on Forbes has a post, “The Supreme Court should invalidate Software Patents”, http://blogs.forbes.com/timothylee/2011/07/28/the-supreme-court-should-invalidate-software-patents/
It’s a good post and I recommend reading it. I agree with Tim’s reasoning and logic but I ultimately disagree with his conclusion.
The Supreme Court should not be in the position of invalidating software patents; judicial activism is a dangerous concept if for no other reason than how highly politically changed the topics is. However, whatever your position may be on judicial activism, the patent system is still sanctioned by the Constitution and its implementation should be guided by the legislature. Political Science notwithstanding, the simple fact of the matter is the Supreme Court is far too busy with more immediate concerns and issues of intellectual property law have always been relatively low on their priority docket. (Believe me, I would love to be wrong, but I don’t believe the Court will provided relief on this issue in any reasonable timeframe.)
[I actually do believe that the software patent abuses may raise Constitutional issues, especially in the respect of interpretation (original vs. modernist); I just don't think these issues are strong enough when compared with all the other issues facing the court.]
That leaves the issue at the mercy of the legislature. I already argued this is where the issue belongs, but I have even less faith in the legislatures ability to address this; between their stellar record at compromise (budgets) and their most recent triumph at forward thinking (national debt ceiling), forgive me if I don’t run out and bet all of my money in rational patent-reform. If that weren’t enough, remember this is America, the land of opportunity for special interest groups. I don’t for one minute imagine that entrepreneurs and innovators have enough concentrated lobbying power to match the special interests represented by Microsoft, Apple, Intellectual Venture, and their ilk. Unfortunately, I just don’t see relief coming from this avenue any time soon either.
These issues will only be exacerbated be the impending switch to a first-to-file patent system; making it necessary for everyone to file patents defensively.
The only relief I see in sight is through economics. I’ve said this before and I will say it again (as often as necessary): change the economics and you change the war! The other avenue to address this problem is economics. Change the economics of the system and you can defeat the abuse of software patents. I call on all entrepreneurs, innovators, developers, and even IP attorneys to join me in an effort to change the economics: the patent system was created to preserve innovation and we should ensure that that is what it does. (Call me an idealist, but I believe in the intent of the patent system and I want to see it fullfil that intent.)
I would like to put together a catalog of thought-leaders and activists who are willing to represent this issue, to educate their fellows, and to help teach this community what is necessary to achieve our goal of preserving innovation: for every inventor and entrepreneur!
Without reform, no innovation will be safe, no matter how obvious or how many times it has previously been invented. </irony>
Some notes from the original article:
… there are good reasons to think abolition of software patents is the right reform. Software is fundamentally different than other types of inventions. For starters, software is virtually alone in being eligible for both patent and copyright protection. This makes patent protection mostly superfluous. Second, writing software is an individual, expressive activity at least as much as it is an engineering discipline. We don’t expect novelists to hire patent lawyers, and computer programmers shouldn’t have to either. Finally, the “software industry” is radically more diffuse and diverse than the typical patent-eligible industry. Every business with more than a handful of employees has an IT department producing potentially patent-infringing software. No other category of patents has this characteristic.
From one comment (gyas):
99% of software patents are trivial, obvious, and should never have been granted. Once granted they should be easily reviewed without a $2M trial. The pull-down menus are the top of this web page? That’s patent #5,251,294 (licensing for $80k per website). Filling in the form to post this comment? That’s patent #7,822,816 (whose owner is now suing everyone and their dog) and #7,222,078 (licenses are a mere 0.56% of all your revenue).
Timothy Lee also wrote this Cato Institute article: The Case against Literary (and Software) Patents.