Pending patent reform unlikely to untangle software litigation mess

Pending patent reform unlikely to untangle software litigation mess

Summary: Proposed new patent-reform law may merely speed up tangled system; one observer suggests doing away with software patents altogether.


A long-awaited patent-system reform bill is on its way to becoming the law of the land. The Leahy-Smith “America Invents Act” (H.R. 1249) was recently approved in a US Senate vote, and awaits the president's signature(UPDATE 9/16/2011: The bill has been signed into law.)

Patents have long been both the bedrock and bane of software innovation, ensuring that creators will be properly acknowledged and potentially compensated for their hard work. However, the US Patent and Trademark Office’s current mandate, as it exists, has been a mess, resulting in endless wars between companies (lately, between Google and Oracle or Google and Apple), as well as the rise of companies that seem to have no other reason for existence other than as “patent trolls.” Witness the long, torturous saga of the SCO Group, which went after major Linux providers and users for a cut of what it claimed was it just due of licensing revenue.

As Herb Wamsley, executive director of the Intellectual Property Owners Association, once so eloquently put it: The U.S. Patent and Trademark Office is underfunded, understaffed, and incapable of handling the growing wave of technologically complex patent applications flooding in. “In sum, the system is overwhelmed, underfunded and grinding to a halt.” When the system breaks down, in come the lawyers.

Will the proposed changes in the patent system help to stimulate greater software innovation, or put more shackles on the innovation process?

The most obvious change will be the awarding of patents to the “first to file” applicant for a new idea, versus the previous, more amorphous policy of “first to invent.”  This change, it is hoped, will being more clarity to who rightfully holds a patent, and make litigation less necessary. The bill also also give the US Patent and Trademark Office the option to hire more examiners, possibly by charging applicants a fast-track fee.

However, there are also fears that larger companies, with their armies of attorneys with the resources to make speedy patent filings in overwhelming numbers, will crowd out small startups and companies. Plus, companies will be able to challenge patents after they are approved.

To address small business concerns, the bill also includes a provision that establishes a “Patent Ombudsman Program” that will provide support and services relating to patent filings to small business concerns and independent inventors.

Still, there are reservations about the new law -- and a feeling it won't do much to quell the ongoing software patent wars. As Ed Black, president and chief executive of the Computer & Communications Industry Association (CCIA), put it to AFP: The reforms don't "effectively address the real serious problems of our patent system.... The bill tinkers in various ways -- some things are good, some things are bad -- but it's not a gamechanger... too many patents issued that are simply not high-quality patents."

Legal eagle Dennis Crouch, for one, warns that there will be plenty of new work for lawyers: “The law of patentability will be more complicated and unstable for the next decade as we go through the transition.”

The issues at stake, as Crouch says, include the need to “directly assist the US Patent and Trademark Office (USPTO) with issuing patents in (1) a timely manner; (2) for only deserving inventions; and (3) that concretely and understandably define the scope of the patent right.” While the bill doesn’t tackle these issues head-on, making more funding available may help alleviate some of the backlog that puts patent applications and disputes in limbo.

And, he adds, the reforms will help deliver more expediency and harmonization to the US patent system at a time when technology advances are coming in from all over the globe: “With harmonization, the USPTO has the potential of working more closely with worldwide patent agencies to improve the patent prosecution process.”

In the AFP report, Roger Kay of Endpoint Technologies Associates has even a better idea than simply tinkering with the system: Do away with software patents altogether. "People patent any old thing and they repatent things that are already patented. Really we should be going 180 degrees in the other direction and saying 'How about no patents for software?'"

(Photo credit: Wikipedia)

Topics: Software, Emerging Tech, Legal

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  • Skillz

    What the US Patent Office really needs is researchers / inspectors who actually understand the topics upon which they are approving patents.

    When I look at half the patents that come up for court cases in the USA, I think "hmm, I was doing that back in the mid 80s." Sometimes they were new algorithms or methods, which I thought up, but more often, they were "standard practice" in the industry.

    But moving it from a traditional computing platform to a mobile computing platform and sticking the words "on a mobile device," but leaving the rest of the method untouched, compared to what has historically been done in the industry seems to be enough to warrant a patent. Such deception on the side of those filing the patents, along with a lack of knowledge or lack of resources on the part of the Patent Office, means that the fracking obvious, with tonnes of prior art, gets patented and people who have based their products on common knowledge suddenly find themselves in court.

    The Patent System was designed to help protect the income of inventors, whilst promoting innovation, by letting others incorporate such technology in their products, without the fear of being sued.

    Now, it seems that the System has been turned 180? and is only used to stiffle competition and stiffle innovation.

    To be honest, having worked in the IT and consultancy business for over 25 years, I can't really say that I approve of the patenting of algorithms, methods and user interfaces anyway. Most are obvious and easy to reproduce in a "clean room" environment, when faced with the same problem.

    1-1 copying is wrong, but having the same or similar ideas, in isolation, isn't.

    In some industries, like electronics, heavy equipment manufacturing etc. there is a need to some for of protection, because it is expensive to come up with a new product and the production costs are high, so there is a need for some protection, in order to recoup the costs.

    I don't see this in the software and business process "industries". They are different, yes, there are ideas and complete systems should be covered by copyright. But patents? I don't see the case, sub components of a complete solution are often very common and very hard to define in terms of a patent, which would be specific. The patents being filed for software and processes are so wishy-washy, that they should be rejected at the first hurdle for being too general!

    A patent should be something "new", original and unique. Something vague about "letting two devices communicate wirelessly and synchronise their contents," shouldn't be patentable, because this is an idea nearly everybody has had over the last 3 or 4 decades, when thinking about the devices in their hand and a central database/repository. Heck, we started doing that in a wired method back in the 70s, why should "wirelessly" doing soemthing mankind has been doing on a daily basis with a wire be patentable? The definition of the wireless protocol, to get the two devices to communicate with each other (the modulation of the frequencies) also isn't new, but maybe they invent a new way of doing it, but the synchronisation and transfer of the information itself hasn't changes, just the medium!
    • RE: Pending patent reform unlikely to untangle software litigation mess

      @wright_is I agree. I hear of recent patents granted for things I was doing 20 years ago and it just makes me want to scream. Patenting anything is just a bizarre concept, considering virtually everything is based on prior work of some sort, but patenting software is the most retarded concept I've ever heard.

      Before patents, innovation was proceeding at a blinding pace because companies couldn't just sit on their butts and milk old work forever. There was real competition and a constant refresh of new design and innovation. Now, producing a new invention is prohibitively expensive due to legal expenses created by our patent system. You are forced to search for patents which might affect your product, forced to patent anything which isn't already patented for your own protection, and forced to defend yourself against the huge lawyer pools of patent trolls.

      The laws of our nation should benefit society, not corporations. Stagnation of innovation and lack of competition do not benefit society. They only benefit shareholders and lawyers. The problem is, our government is completely paid for by corporate interests. Lobbyist-generated income for lawmakers vastly exceeds their actual salary. The greed of public servants far exceeds any morality they may have had before entering public office. They do as little as possible for society and as much as they can for the people controlling their income.

      The best thing we could ever do for society would be to outlaw all lobbying activity and expel/prosecute any public servant who puts the interests of a private corporation above the interests of the voters.

      We should also do away with the patent system. Everything being created or invented is based on basic physics, chemistry, biology, etc. work which was all done long ago. Saying any of these things is a totally new invention is just wrong at its most basic level. Everyone stands on the shoulders of prior work.
      • RE: patent reform


        To put it succinctly:

        <b>We have the Best Government, <u>Money Can Buy</u>!!!</b>

        It used to be <i>of the people, for the people and by the people</i>; which has now been perverted to:

        <b>of the corporations, for the corporations and by the corporations</b>, and <u>screw</u> the people.
      • RE: Pending patent reform unlikely to untangle software litigation mess

        @BillDem I have an idea: how about everybody in the world partake of a class-action suit against the companies that now have patents on DNA? DNA is in each and every one of us. WE had it before THEY did. How can they patent something WE produce, not THEM? Make them pay everyone in the world royalties on every penny they make from using OUR DNA.

        Works for me.
  • RE: Pending patent reform unlikely to untangle software litigation mess

    The patent office is overwhelmed, and beseiged by lawyers with more money and experience than the patent office itself has.

    They've punted, and are approving anything which seems to use words in combinations which do not previously appear in their database.

    It's left to the court system to test "obvious to someone versed in the art" - and the courts are far LESS informed than the patent office.

    The answer is to completely rewrite patent law. It was intended to protect the small inventor from being exploited by the larger better funded corporation. In practice, that is just about never happening, and instead ONLY the large corporations with huge teams of lawyers and the financial stamina to wait out a half-decade long lawsuit can use the system successfully.

    So end it.

    Obliterate the existing patent law and start over.
    • RE: Pending patent reform unlikely to untangle software litigation mess

  • Patent = Monopoly

    Patents originated back in the mercantilist (pre-capitalist) era, back when it was thought that competition was fatal to a successful business. The only thing special about software patents is that the damage they do is a bit more obvious than in other areas, that?s all. Other sectors of industry have managed to survive in spite of patents, not because of them.
    • Nor evidence we're more inventive as a result

      What a surprise, changes put forward and designed by large companies favor large companies. The patent system is a joke, first to file (rather than invent) makes the system worthless. <br><br>Except as a tool to kill the competition.
      Richard Flude
      • RE: Pending patent reform unlikely to untangle software litigation mess

        @Richard Flude
        Technically, first to file *with a strong prior art rule* that states that if it's been done before at the date of filing, it shouldn't bee too bad.
        The difference would essentially be that if A or B does X in the open, neither can patent it later because of it already being open knowledge. If the part that's not seeking the patent already has done it in the open, that would be prior art.
        But if A and B does it behind closed doors then either could patent it, and that might be a problem for the other party unless the prior art rule would either give an exception for those who had done it before behind closed doors or if it would invalidate the patent (that could make life hard for those seeking a patent).
  • No Patents

    Patents are plain and simply a wrong headed idea,put together with good will they actually stifle innovation and area detriment to new ideas,like the communist system the idea sounded good at the time but has been shown to be a flop.Let's just own up to it get rid of the whole system and pretend it never was,the effect of this would be a n explosion of new products and new idea almost a new Renaissance.
  • RE: Pending patent reform unlikely to untangle software litigation mess

    I just skimmed through the entire 152 page "Act" -- holy guacamole, what a lawyer fest that's going to be. The only parts that weren't crap on a stick were way down near the end, starting on page 144 (Sec. 28) with the "Patent Ombudsman Program" and then on page 147 (Sec. 34) a provision for a 1 year "Study of Patent Litigation." The last bit would be a nice idea if it wasn't timed to kick in with enactment of the law -- never mind putting the cart before the horse: this is more like putting the horse sideways to the cart.<br><br>This is typical of what's become a very serious problem: the deliberate and systematic exploitation of weak, complex systems by well-financed, well-skilled individuals and organizations. This applies not just to patent law, but to things like cyber security and the financial industry. Hackers and virus writers have been more and more systematic in their ID'ing and analyses of weaknesses in the greater cyber realm, from OS's to apps, and on to the basic infrastructure of the Internet itself. The same goes with the large, big pocket investment banks, private equity firms and the like in regards to turning (if not deliberately creating) fluctuations and trends in prices and trades into a gargantuan, and highly complex Vegas sports book. <br><br>In terms of patents, you have basic grades of patents and copyrights, from the gold standard of a finished, wholly original breakthrough work, to laughable "look and feel" claims, but the final patent or copyright doesn't really differentiate between these two extremes: you get a patent, especially, and you are good to go with the dogs of law.<br><br>Real patent reform would differentiate between strong patents and weak patents, and would grant each a different level of protection (date of expiration would be one obvious differentiator), and too many application attempts by "non-practicing entities" (aka "Patent Trolls") for weak patents should result in rising penalties. Patterns of patent application by applicants, as well as their litigation history should be fair game by the Patent Office in determining patent merit and likely degree of strength or weakness, especially since well paid patent law firms are adept at using a barrage of inherently nonsensical characterizations to try to transform a sow's ear into a silk purse (despite the Arthur D. Little company having already accomplished this in 1921.)
  • RE: Pending patent reform unlikely to untangle software litigation mess

    If we are to allow patents at all (a proposition I question), we certainly have no need for software patents. We already have copyright, and industrial design rights. Look and feel (such as OS and application interfaces) could be covered as industrial designs. The actual line-for-line copying of software is covered by copyright. Nothing more is necessary. Patenting software actually allows a form of patenting mathematical equations, which is "patently" ridiculous, and was recognized as such by law.

    Apple does not need a patent on the "tablet" form (which was invented in ancient Rome (or earlier) to profit. It wants to enforce a patent to profit obscenely and indefinitely.

    Additionally, in the speed of business cycles in the computer age, a patent does not need any shred of validity to be very effective in the hands of a large corporation. Any patent can be used to hold up competition long enough to effectively eliminate them. Even if Samsung eventually win in the courts, they will have lost at least an entire year of sales, marketing and production to Apple, in a business where 6 months is old.

    Algorithms and "methods" should never be patentable. Amazon's "one click" purchase is an example of something that should never be patented. That is akin to saying that I can patent the notion of a car that can drive itself, rather than the details of an actual invention that could be built that would allow a car to drive itself. I should just patent artificial intelligence now, so I can reap millions off the poor suckers who eventually sweat blood to build one.
  • Agree With Roger Kay

    No patents given for software. The other thing would be for the patent office to demand a working copy of the software or the code to generate the software. To patent a piece of hardware takes a prototype and a document to explain what the prototype does and why it is unique enough to be given a patent.
  • RE: Pending patent reform unlikely to untangle software litigation mess

    I don't know if this will resolve the issue and I don't believe the patent law can be removed altogether. I think in principle, the solution to this mess is to limit patent law for software. I.e. make software patents only valid for 2 years after which they are open to market. The problem with the current patent system is people have patented ideas from years ago that are obvious so to allow them to patent something they think they invented which is obvious by modern day standards would be ridiculous. I.e. an upgrade button.

    The simple solution to this is to limit the defined period for software patents allowing the company who creates it to benefit for a short period of time and allow them to gain market share from their invention, after which the technology is then considered "obvious" and is moved into the public arena. This will forces companies to continue to innovate without stifling competition.
  • RE: Pending patent reform unlikely to untangle software litigation mess

    I'm slightly puzzled here: AFAIK there's no such thing as a software patent (although they might well exist in some other countries).
  • RE: Pending patent reform unlikely to untangle software litigation mess

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  • RE: Pending patent reform unlikely to untangle software litigation mess

    Same with movies, if it can be played on a computer, then it is nothing but software, don't care about the labor, acting, costumes, etc, etc, that went into making the movie. Besides even at 60 years of age, I still remember better dreams as a kid then I've seen come out of Hollywood in the last 15 years. So I guess we all should patent the dreams of our kids, grandkids, cousins, nieces and nephews, before someone else does. I'm afraid I've already given the idea away tho, to late now, lawyers have it.
  • RE: Pending patent reform unlikely to untangle software litigation mess

    First to file is to make it cheaper for Patent office to administrate
    at the expense of inventors. Say someone invents something and fails to file for a patent then anyone who see it and has the $ can then patent someone else's work.
    All legal does not make it ethical!

    Did we not learn anything from Cybersquatters?

    Patents are suppose to be for items that are non-obvious to professional
    people knowledgeable in the area for which patent is being applied. It has been
    an underfunded Patent office rubber stamping whatever comes across the desk
    and let the courts decide if its valid that has lead us to this disaster.