Why we need software patents, part 3 of 3

Summary:There are improvements that can be made to the patent system, but they are the same types of incremental improvements every large system needs. Scrapping the system is just a bad idea.

In last week’s ZDNet Great Debate, I argued in defense of software patents. This is not a popular position among heavy internet users, even though it is the current state of the law and industry practice, and in the popular vote I lost 89% to 11%. (I’m relieved to say that the moderator declared me the winner.) These past few days I've been doing three posts about the basic premises of the argument for software patents. The talkback comments on the first two installments have echoed the 9:1 ratio pretty closely.

In the first installment of this series, I argued that the distinction between software and hardware patents is nonsensical. In the second installment, I argued that the intellectual property laws are necessary to encourage innovation. The last part of this argument is simply that the patent system, as presently constituted, is a good starting point. It would be destructive and disruptive to scrap it. There are improvements that can be made to the patent system, but they are the same types of incremental improvements every large system needs. Scrapping the system is just a bad idea.

I'd be the first to say that the threshold for obtaining patents -- in all areas -- is too low right now. Patents should represent more than minor innovation. I don't think they need to be limited to historical, watershed breakthroughs, but the threshold should be higher than it is now. I would also push for streamlining the patent litigation system in several ways, for example through directing patent lawsuits to a specialized court system (the same way disputes over wills in several US states get funneled into probate or surrogate's court, and patent appeals go to the Federal Circuit) after first making an aggressive push to have those disputes settled by arbitration, mediation or negotiation.

These types of changes could improve the software patents system without causing the kind of massive economic disruption that abolition would (quite aside from the fact that abolition is an intellectually unsound position).

If time and space permit, I will try to circle back for part 4 of 3, to address some of the questions and fallacies that have come up in the talkback comments.

See also:

Topics: Patents

About

Steven Shaw used to be a litigation attorney at Cravath, Swaine &gMoore, a New York law firm, and is now the online community managergfor eGullet.org and the Director of New Media Studies at thegInternational Culinary Center.

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