Could 'quality patents' end software wrangles?

The world might be a better place if there were fewer but better-quality software patents. The concept of 'quality patents' has attracted much praise, but little meaningful support. Perhaps it is time that changed, says Jeremy Phillips.

Regardless of whether you like patents, they exist and businesses make use of them; and that state of affairs annoys many software developers greatly.

They claim patents cramp their style and limit their freedom to express themselves through their skill; that patents block their way to market; that they prevent the software industries from developing naturally and that they spawn a cancerous carbuncle, a parasitic profession of patent attorneys that grows rich on the back of their efforts and achievements.

If every penny spent on software patent drafting, filing and infringement litigation were spent in product development, how much better the world would be, the developers say.

Others praise patents, even for software applications. The patent protects investment that would not be directed at software development if that protection did not exist. The patent specification opens up inventions for everyone to read, thus enriching the state of the art and saving developers the need to reinvent the programmer's equivalent of the wheel.

And even if 20 years seems a tad long for a legal monopoly in an area where technological change is in danger of outstripping the ability of consumers to absorb it, well, most patents have lapsed or died by the time they've reached only half that age.

Protecting an idea
Critics refuse to accept the validity of these alleged virtues. Copyright exists to stop direct lifting of code, and why should patents be allowed to protect what is often seen as a mere idea, when every IP expert says there's no such thing as a monopoly on an idea?

Also, the idea of published patents providing useful information for software writers is risible. Have you ever seen a software creator patiently reading through hundreds of patent applications before setting out to attain his immediate objective?

No, the only people who read the patents are patent lawyers and the expert witnesses they coach, when litigation is contemplated or feigned, a sort of legal foreplay before an expensive licence deal is consummated.

While there is no compromise between the two extremes, some have argued that what is needed is a sort of halfway house that recognises the needs of both sides. Developers with their big proprietary portfolios will never willingly concede their need for patents, while open-sourcers, freelancers and smaller businesses will never cease to worry about the threat patents pose.

So, how about a world in which there are fewer patents, but better ones — in the sense that they are more carefully examined, forced to comply more strictly both with legal criteria and market reality? That stricter compliance would make them more likely to be valid, in a world in which software inventions are under constant threat of being deemed retrospectively obvious, and useful to read.

And if there are fewer of them, what you have is a route to market that is cratered with fewer, but larger, patent potholes that are easier to spot from a distance and avoid when you get close up.

Lack of support
The concept of 'quality patents' has attracted much praise, but little meaningful support. Big patent-enforcing enterprises are best served by a system that provides for quality patents and the regular non-quality sort, rather than as a replacement for them — since even a palpably rotten patent can provide market muscle and will deter litigation-averse competitors until it is successfully contested or re-examined.

Another question is: who will foot the bill? Patent examining is a labour-intensive process that requires substantial skill. Better examining means more ping-pong between examiner and patent attorney at the application stage, as the two tussle over issues of novelty, inventive step, statutorily excluded subject matter and the like.

If the applicant pays more, the system may disappear beyond the grasp of smaller businesses, that quasi-protected species the European Commission is particularly eager to assist.

So what does this issue boil down to? In theory the quality patent solves no-one's problems, yet in practice it just might — not as the best of all possible worlds, but as the best of all worst possible worlds in which the software protagonists confront one another.

Whether the quality patent is a worthy quest or an expedition in search of fool's gold probably depends on where you are standing when the question is asked.

Jeremy Phillips, intellectual property consultant to law firm Olswang and professorial fellow at the Queen Mary Intellectual Property Research Institute, is a research director at the Intellectual Property Institute. He is a member of the IPKat and Datonomy blog teams.