Judge Richard Posner, who recently dismissed the Apple-Motorola patent case, is again speaking out on the issue of software patents.
In a recent interview with Reuters, Judge Posner questions the utility of applying patent law to computer software. Citing the relatively lower cost of R&D for software (vs. other industries, like pharmaceuticals) and the growing complexity of electronic devices, such as smart phones, which may incorporate thousands of components, each of which may be the subject of multiple patents, raises the specter of courts clogged with endless patent litigation .
While there are strong arguments available both for and agasint applying patents to software, the increasing discourse, even among jurists, of the implications of the current course of patent law and patent enforcement makes it clear that there is clear need for reform in the system. Rationalizing the competing interests of incentivizing innovation by protecting intellectual property and preventing the creation of technological roadblocks to further innovation is an acute need. Nor can we move towards a balancing of these interests too quickly, as the other thing that rational markets need are predictable rules by which to play. Currently, the rules are anything but predictable, and this retards investment in technology.
In a still-sputting economy, disincentives for new investment and new innovation are the last things that we need.