According to a report by News.com's Declan McCullagh, if a new bill before Congress becomes law, it's proposer, Rep. Lamar Smith, says it will improve the overall quality of patents and target some of the legal practices that have irked high-tech companies. Among the changes that the law would institute is the creation of a process for challenging patents up to nine months after they're awarded or six months after a legal notice alleging infringement is sent out. McCullagh's report notes that "another major change would be to award a patent to the first person to submit their paperwork to the Patent Office. Currently, patents are awarded to the first person who concocted the invention, a timeframe that can be difficult to prove."
While it's about time that a patent reform bill appeared in front of Congress (see Rage against the patent machine, but is anybody listening), I'm curious as to what happened behind the scenes that facilitated the overnight birth of this bill. As I reported in that "rage" blog, the last time the issue surfaced in any federal discussion was in 2002. Here we are five months later, and we have a bill. Not only that, it's a bill that the tech industry apparently likes. McCullagh reported that the Business Software Alliance was quick to praise the bill. The BSA is backed by many of the industry's biggest vendors, many of which have also been the squeakiest wheels when it comes to the problems that exist with U.S. patent law today. On the patent front, 2005 has been a busy year for the technology industry, which has been lobbying hard for reform. At the end of April 2005, the Judiciary Committees of both the House of Representatives and the Senate held hearings on patent reform, and here we are barely seven weeks later with a bill. For Congress, this has to be a land-speed record of some sort and surely it, *cough*, was the bests interests of The People that motivated them to move so quickly.
OK, whatever it takes. But now the question comes: is this too little too late? For example, asks a ZDNet reader, what about grandfathered patents? In response to the aforementioned "paperwork" change, reader George Mitchell opined "this means he who pushes paper always triumphs over he that writes software." While the grandfather issue is an obvious problem that will hopefully be dealt with before this bill becomes a law, the paper pushing issue is a bit stickier. While I'll be the first one to admit that I don't have any easy answers, I'm troubled by the idea of issuing patents on the basis of paperwork alone. I personally would like to see some evidence of real research or implementation since, as Mitchell implies, anyone could push paper. But I'm also aware of the problems that presents. For example, why shouldn't some engineer be able to wake up in the middle of the night with the next better-than-sliced bread idea, map out all the details and patent it.
On the larger debate of whether there should be patents on software at all, this is turning out to be a more difficult situation to reconcile than many realize -- mostly because of the international complexities of patents. Assuming that we ditched patents here in the U.S., everything would be fine, right? No patents, no lawsuits. That is, until you head into international territory (and the world has not demonstrated a proclivity towards following America's lead). So, while the spirit of never using a patent offensively may eventually prevail in the U.S., what the open source world has taught us is that patents actually come in handy for defensive purposes where that spirit may not exist (for example, in the EU).