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| Authored by: Anonymous on Friday, January 04 2013 @ 05:16 PM EST |
Just discovering Groklaw today...and my first impression is ... Wow! what a
stunning collection of misinformation about patents and software patents. The
section on software = math is perhaps unmatched in its irrelevancy to the topic
of patentable subject matter. That line of reasoning is like saying any machine
is made of atoms, and atoms are a natural phenomena that should not be
patented.
To be clear, I am no longer a software developer but a senior patent
practitioner, so my perspective will be pro-patents. However, some of the
postings I have seen on this site disputing the meaning of intellectual property
and property really surprise me for how far out they go from any sound reasoning
or legal concepts.
Let me respectfully submit the following points:
- A developer who comes up with a novel software that provides some utility has
invented something of potential commercial value. Protecting these types of
inventions, particularly by small entity inventors, is the fundamental purpose
of our patent laws and fully reflects Congress' intent. IMHO, it is an
absurdity to assert that these inventions do not deserve patent protection, when
no one would dispute that a commensurate mechanical invention is patentable.
- There is an issue about the tangible nature of software that our patent system
and courts have been unable or unwilling to properly accommodate. The way it
was accommodated by the USPTO during the 1990s was to bend the meaning of
'ordinary skill in the art' to allow software patents with very thin and general
disclosures (basically an outline of an algorithm) to widely issue. Many of
these patents are worthless on their face, though they enjoy a presumption of
validity. Due to the widespread growth of the software industry, a large number
of such software patents have issued, which justifiably frustrates many software
developers today. Even worse, the very low bar (read: enablement standard) to
software disclosures has promulgated itself to become standard practice today.
- Since the USPTO essentially created the problem, they will likely be the only
ones to fix it. But it will cost them more resources and skill, which they are
desperately lacking. And they will not upset the apple cart in doing so.
- Note that most software developers are neither owners or inventors of patents,
so why should software developers even have a voice in determining what is
patent eligible subject matter (other than their rights as ordinary citizens to
democratically change laws and government policy)? Being affected as a
potential infringer does not give you the right to skew the rules that bother
you, per se -- that is my point here.
- You can only enjoy the advantages that the patent system gives you by playing
the game and filing your own patents. However, the vast majority of the
software market is under the radar of patents in a business sense. There is
just not enough commercial value (read: cash flow) in most instances to justify
a patent or an infringement. In fact, many will know when they finally 'made
it' when patent issues arise for real, probably after about $1mm in annual
revenue. If you are below that, you don't have much to protect and are not a
threat to anyone. Above that, you have the resources to play the patent game.
- Patents are a reality and have provided enormous benefit to the US economy
relative to other systems that did not secure commercial rights for inventors.
The alternative would be having your code stolen by competitors with impunity.
Does that sound preferable?
My advice: get a more realistic understanding of patent law and the patent
business. You will find that you have enormous room to operate as a small
business. You will find an enormous number of junk patents that are worthless
and abandoned (you have to pay and pay to get the full 20 year term).
If you really want to improve the patent system, you should realize that
software patents have not been properly accommodated in the law, but that they
must be. I recommend focusing on the enablement standard and nail down ordinary
skill in the art for software. That will make software patents much more
expensive, but better quality, which will reduce their numbers over time.
Finally, groklaw.net is a relatively difficult site to use. I was not able to
start a new thread, so I just replied to one. The textual nature of this site
is stunningly archaic for 2013, but that probably does not bother coders, I
guess.[ Reply to This | Parent | # ]
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