Top judge: ditching software patents a “bad solution” | Ars Technica

Top judge: ditching software patents a “bad solution” | Ars Technica.

Despite the misleading title (the article is based off an interview with a retired judge, not a sitting one), this article is both excellent fodder for thought and discussion, as well as an insight into the thought process of the federal judiciary on software patents.

While it is somewhat difficult to parse Judge Michel’s full position, as this article is more a commentary on an interview (without the benefit of including the interview itself), the article does make it appear that Judge Michel in particular (and perhaps the current federal judiciary in general) does not appear to fully grasp the impact of software patents on the IT industry. For instance, his dismissiveness towards the impact that litigation costs associated with patents fights ignores the ruinous effect that such litigation can have on businesses, particularly small and medium sized ones.

Judge Michel also appears that give little weight to the implications of the existing patent arms race in the IT realm. One one hand, the hunger to buy up and concentrate patents into portfolios, whether for defenseive or offensive purposes, can be of great benefit to small, agile, inventive companies. This market of patented (or at least patentable) can create a ready market for new technologies and can allow nimble companies to quickly capitalize on R&D investments.

On the flip side, the concentration of patents in the hands of fewer and fewer companies can create a significant barrier to future innovation and job creation. As the world of IT patents becomes mare and more Balkanized, it becomes increasingly more challenging for small and medium sized IT companies to effectively navigate around these existing patents or, in the alternative, increasingly expensive for them to pay the “tolls” association with licensing series of patents that are being used to protect whole areas of technology. This ultimately stifles not only competition, but also innovation.

The author of the article appears to advocate for the elimination of software patents altogether, while Judge Michel appears to sit firmly within the “We just need to tweak the system a little.” camp.

Unfortunately there are down sides to both ends of this ideological spectrum. The current patent system in general and software patents in specific have clearly failed to keep pace with the realities of IT and the world’s increasingly information driven economies. If these laws are to remain relevant and serve their original purpose (the incentivization of innovation), then clearly there must be significant and fundamental change to the system.

The needed changes must address the proliferation of patents granted which clearly run afoul of established prior art, uniqueness, and obviousness doctrines. Likewise the reforms must take steps to deal with growing tension between fair competition and anti-competitive behavior (patent law should not, at least in my view) be a tool which furthers monopolistic behavior). And finally, patent law must enable a system for dealing with patent suits which is not so ruinously expensive that the process of enforcing patents (or defending oneself from patent litigation) is so expensive that assassination by litigation is a viable business strategy for well capitalized companies to use against less well capitalized companies.

While it is tempting to argue that given the difficulty in reforming the existing patent system in a meaningful way, that it is best just to exempt patents altogether from the system. In this respect, I find myself in agreement with Judge Michel. I am not sure that simply exempting whole areas of innovation from patent protection is the best solution. There is real and tangible economic benefit (and consequently benefit to innovation) from permitting reasonable protection to inventors of transformative technology, whether it be software, medical, or otherwise. A reasoned, flexible, appropriate patent code serves to prevent a dog-eat-dog free-for-all in the marketplace, where companies do little more than feed on the inventions of others and try to grab benefit therefrom without investment or innovation of their own.

Ultimately it is very difficult to say from an objective standpoint whether the “right” answer is to reform patent law or the carve out software (and perhaps other fields as well) from the application of existing patent law. Economic studies of the implications of either option appear to be few and far between. Rigorous, academic research and analysis of subject appears to be almost non-existence. Heated, sound-bite styled argument on the subject seems to abound.

My personal conclusions (moderate that I am), tend to fall into the “major reform” camp. It is clear that patent law (and copyright law as well) is failing to keep up with the transformation of both our economy and the technologies that are increasingly driving it. While it is difficult to forecast what additional transformations will occur in both the economy and in IT over then coming decades, I believe that, as a society, we benefit more from updating our laws and building the flexibility to deal with new “realities” than by simply carving out areas and stating that not only do the old rules not apply but there are no (or few) new rules to take their place. Without consistent, understandable, and relevant rules there is little in the way of predictability. Uncertainty is anathema to well functioning market economies. As such, for developing technology to have a solid economic basis, it must have grounding and predictability to its place in the economy. This is what workable, relevant laws help provide.

In any event, this is an area that clearly calls for both serious analysis and robust (reasoned) debate. And as consensus arises from that debate, there must be change. Not change for change’s sake. We need change because doing nothing is the worst solution of all.

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