Sometimes, even the best job can call for extraordinary sacrifices. Even
grumpy editorial jobs. Let it never be said that your editor is unwilling
to take one for his readers; why else would he choose to spend four hours
in the company of around 100 lawyers gathered to talk about software
patents? This event, entitled
, was held on March 19 at the local law school.
The conversation was sometimes dry and often painful to listen to, but it
did provide an interesting view into how patent attorneys see the software
patent regime in the U.S. The following is a summary of the high points
from the four panels held at this event.
Should software patents exist?
It should come as little surprise that a panel full of patent lawyers turns
out to be supportive of the idea of software patents. Of all the
panellists present, only Jason
Mendelson was truly hostile to patenting software, and even he stopped
short of saying that they should not exist at all. The first speaker,
though, was John Duffy,
who cited language in a 1952 update to the patent code stating that "a
patentable process includes a new use of an old machine." That language,
he says, "fits software like a glove." So there is, he says, no basis for
any claims that software patents are not allowed by current patent law.
Beyond that, he says, the attempts to prevent the patenting of software for
many years did a great deal of damage. Keeping the patent office away from
software prevented the accumulation of a proper set of prior art, leading
to the current situation where a lot of bad patents exist. Software is an
engineering field, according to Duffy, and no engineering field has ever
been excluded from patent protection. That said, software is unique in
that it also benefits from copyright protection. That might justify
raising the bar for software patents, but does not argue against their
Geradin made the claim that there's no reason for software patents to
be different from any other kind of patent. The only reason that there is any fuss about
them, he says, is a result of the existence of the open source community;
that's where all the opposition to patents comes from. But he showed no
sign of understanding why that opposition exists; there is, he says, no
real reason why software patents should be denied.
Kevin Luo, being a Microsoft attorney, could hardly come out against
software patents. He talked at length about the research and development
costs at Microsoft, and made a big issue of the prevalence of software in
many kinds of devices. According to Mr. Luo, trying to make a distinction between
hardware and software really does not make a whole lot of sense.
Beyond their basis in legislation, patents should, according to the US
constitution, serve to encourage innovation in their field. Do software
patents work this way? Here there was more debate, with even the stronger
patent supporters being hard put to cite many examples. One example that
did come up was the RSA patent, cited by Kevin Luo; without that patent, he
says, RSA Security would not have been able to commercialize public key
encryption. Whether this technique would not have been invented in
the absence of patent protection was not discussed.
Mr. Geradin noted that software patents are often used to put small
innovators out of business, which seems counter to their stated purpose.
But, he says, they can also be useful for those people, giving them a way
to monetize their ideas. Without patents, innovators may find themselves
with nothing to sell.
Haislmaier claimed, instead, that software patents don't really create
entrepreneurship; people invent because that is who they are. And he noted
that software patents are especially useless for startup companies. It can
currently take something like seven years to get a patent; by that time,
the company has probably been sold (or gone out of business) and the
inventors are long gone. Jason Mendelson, who does a lot of venture
capital work, had an even stronger view, using words like "worthless" and
"net negative." He claimed that startups are frequently sued for patent
infringement for the simple purpose of putting them out of business.
What's wrong with the patent system?
In general, even the panellists who were most supportive of the idea of
software patents had little good to say about how the patent system works
in the US currently.
Meurer, co-author of Patent
Failure, has no real interest in abolishing software patents, but
he argues that they do not work in their current form. Patents are
supposed to be a property right, but they currently "perform poorly as
property," with software patents being especially bad. That, he says, is
why software developers tend to dislike patents, something which
distinguishes them from practitioners of almost every other field. Patents
are afflicted by vague language and "fuzzy boundaries" that make it
impossible to know what has really been patented, so they don't really
deliver any rewards to innovators.
Mr. Meurer also noted that software currently features in about 25% of all
patent applications. That is a higher percentage than was reached by other
significant technologies - he cited steam engines and electric motors - at
talked a bit about the effect of software patents on open source software.
Patents are a sort of arms-race game, and releasing code as open source is,
in his words, "unilateral disarmament." He talked about defending open
source with the "white knight" model - meaning either groups like the Open
Invention Network and companies like IBM. He also noted that patents
provide great FUD value for those opposed to open source.
A related topic, one which came up several times, is "inadvertent
infringement." This is what happens when somebody infringes on a patent
without even knowing that it exists - independent invention, in other
words. John Duffy said that the amount of inadvertent infringement going
on serves as a good measure of the health of the patent system in general.
In an environment where patents are not given for obvious ideas,
inadvertent infringement should be relatively rare. And, in some fields
(biotechnology and pharmaceuticals, for example), it tends not to be a
Actual copying of patented
technology is only alleged in a tiny fraction of software patent suits. In
other words, most litigation stems from inadvertent
In the software realm, though, inadvertent infringement is a big problem.
Mark Lemley asserted a couple of times that actual copying of patented
technology is only alleged in a tiny fraction of software patent suits. In
other words, most litigation stems from inadvertent
infringement. Michael Meurer added that there is a direct correlation
between the amount of money a company spends on research and development
and the likelihood that it will be sued for patent infringement. In most
fields, he notes, piracy (his word) of patents is used as a
substitute for research and development, so one would ordinarily see
most suits leveled against companies which don't do their own R&D. In
software, the companies which are innovating are the ones being sued.
The other big problem with the patent system is its use as a way to put
competitors out of business. Rather than support innovation, the patent
system is actively suppressing it. Patent litigator Natalie Hanlon-Leh
noted that it typically costs at least $1 million to litigate a patent
Posthumus added that no company with less than about $50 million
in annual revenue can afford to fight a patent suit; smaller companies will
simply be destroyed by the attempt. Patent lawyers know this, so they
employ every trick they know to stretch out patent cases, making them as
expensive as possible.
Variation between the courts is another issue, leading to the well-known
problem of "forum shopping," wherein litigators file their cases in the
court which is most likely to give them the result they want. That is why
so many patent suits are fought in east Texas.
What is to be done about it?
Michael Muerer made the claim that almost every industry in the US would be
better off if the patent system were to be abolished; in other words,
patents serve as a net drain on the industry. But, being a patent
attorney, he does not want to abolish the patent system; instead he would like to see
reforms made. His preferred reforms consist mostly of tightening up claim
language to get rid of ambiguities and to reduce the scope of claims. He
would like to make the process of getting a patent quite a bit more
expensive, putting a much larger burden on applicants to prove that they
deserve their claims.
Mr. Muerer went further and singled out the independent inventor lobby as
being the biggest single impediment to patent reform in the US. In
particular, their efforts to block a switch from first-to-invent to
first-to-file priority (as things are already done in most of the rest of
the world) has held things up for years. What the lobby doesn't realize,
he says, is that if the patent system works better for "the big guys," they
will, in turn, be willing to pay more for patents obtained by the "little
guys." This sort of trickle-down patent theory was not echoed by any of
the other panelists, though.
Part of the problem is that the US patent and trademark office (PTO) is
overwhelmed, with a backlog of over 1 million patent applications. So
patent applications take forever, and the quality control leaves something to be
desired. Some panellists called for funding the PTO at a higher level, but
this is unlikely to happen: the number of patent applications has fallen in
recent times, and there is a possibility that some application fees will be
routed to the general fund to help cover banker bonuses and other equally
worthy causes. The PTO is likely to have less money in the near future.
And, in any case, does it make sense to put more money into the PTO? Mark
Lemley is against that idea, saying that the money would just be wasted.
Most patents are never heard from again after issuance; doing anything to
improve the quality of those patents is just a waste. Instead, he (along
with others) appears to be in favor of the "gold-plated patent" idea.
Gold-plated patents are associated with another issue: the fact that, in US
courts, patents have an automatic presumption of validity. This presumption
makes life much easier for plaintiffs, but, given the quality of many
outstanding patents, some people think that the presumption should be
revisited and, perhaps, removed. Applicants who think they have an
especially strong patent could then apply for the gold-plated variety.
These patents would cost a lot more, and they would be scrutinized much
more closely before being issued. The idea is that a gold-plated patent
really could have a presumption of validity.
Others disagree with this idea. Gold-plated patents would really only
benefit companies that had the money to pay for them; everybody else would
be a second-class citizen. Anybody who was serious about patents would
have to get them, though; they would really just be a price hike in
There was much talk of patent reform in Congress - but little optimism. It
was noted that this reform has been held up for several years now, with no
change in sight. There was disagreement over who to blame (Mark Lemley
blames the pharmaceuticals industry), but it doesn't seem to matter. John
Duffy noted that the legislative history around intellectual property is
"not charming"; he called the idea that patent law could be optimized a
"fantasy." Mark Lemley agreed, noting that copyright law now looks a lot
like the much-maligned US tax code, with lots of specific industry rules.
Trying to adapt slow-moving patent law to a fast-moving industry like
software just seems unlikely to work.
What Mark suggests, instead, is to reform patent law through the courts.
Indeed, he says, that is already happening. Recent rulings have made
preliminary injunctions much harder to get, they have raised the bar for
obviousness, restricted the scope of business-model patents, and more.
Most of the complaints people have had, he says, have already been fixed.
John Duffy, instead, would like to "end the patenting monopoly." By this
he means the monopoly the PTO has on the issuing of patents. Evidently
there are ways to get US-recognized patents from a few overseas patent
offices now, and those offices tend to be much faster. He also likes the
idea of having private companies doing patent examination; this work would
come with penalties for granting patents which are later invalidated.
Eventually, he says, we could have a wide range of industry-specific patent
offices doing a much better job than we have now.
There was a brief discussion of the practice of not researching patents at
all with the hope of avoiding triple damages for "willful infringement."
The participants agreed that this was a dangerous approach which could
backfire on its practitioners; convincing a judge of one's ignorance can be
a challenge. But it was also acknowledged that there is
no way to do a full search for patents which might be infringed by a given
program in any case.
All told, it was a more interesting afternoon than one might expect. The
discussion of software patents in the free software community tends to
follow familiar lines; the people at this event see the issue differently. For
better or worse, their view likely has a lot of relevance to how things
will go. There will be some tweaking of the system to try to avoid the
worst abuses - at least as seen by some parts of the industry - but
wholesale patent reform is not on the agenda. Software patents will be
with us (in the US) for the foreseeable future, and they will continue to
loom over the rest of the world. We would be well advised to have our
defenses in place.
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