Lessons From Software For Patents, vs. Solving the Software Patent Problem

Software patents may be going the way of network neutrality: an arcane policy problem once the preserve of a small circle of wonks is becoming a politicized slanging match. In both cases an esoteric but important research question has become a point of leverage for certain interest groups. In both cases the subject (“network neutrality”, “software patents”) is at best poorly defined, typically has multiple possible meanings, and at worst is so vague as to be useless. And in both cases, the poster child is the small-time innovator, while the sugar daddy is a big money player minimizing costs (e.g. content providers who love net neutrality, and VCs who hate software patents).

I was fortunate to attend the Silicon Flatirons conference on Evaluating Software Patents last week. The legal scholars there agreed that there were many, incompatible ways to define software patents, and the practitioners agreed that even if a definition were stipulated, they’d find a way around any additional burdens imposed by its use.

However, good arguments were made that software has added something new to the intellectual property mix. None of the following attributes of software are decisive, but together they point to changed dynamics:

There is a very high likelihood of infringement when producing a software-based product since so many patents are implicated in any application

There is a large group opposing software patents (whatever they are) because it undermines their business model, notably the open source / free software movement

Unlike many other inventions, software can also be protected via copyright

A very large proportion of current patent applications involve software

Software-related products are more intangible than traditional mechanical inventions

Programmers as a community are more hostile to the use of patents than other inventors

As I understood the observations of the legal scholars (John Duffy, Mark Lemley, and Michael Meurer – apologies for lumping their views together) it didn’t matter if “software” patents weren’t a definable category; new legal doctrines were required to address the new problems raised by software. For example, a rapidly moving industry like software has a more pressing need for a high standard of obviousness than earlier technologies of more placid times; and the problem of inadvertent infringement needs to be addressed on its own terms, and not just for “software” patents.

Prof. Lemley also pointed out that over the last three years, the courts have fixed most of the problems that have been grist for the debate. Legislation and reform of the patent office will be a long time coming, and we shouldn’t – and don’t need to – wait for them.

The lesson generalizes: rather than tie new methods of governance to the particular technologies or industries that give rise to new problems, one should abstract the problems and solve them generically. Now if only that had happened with network neutrality…