The Software Patent Debate

Lately, Internet Media Streaming Company – Netflix sued Rovi of non-infringement and invalidity of a few of Rovi’s patents. Rovi lost the battle as the patents were declared invalid.

The Netflix and Rovi battle over patents reflects the state of patent litigation in the software industry. As top companies compete for supremacy in the smart phones and computer tablets market, software patents have become crucial weapons, initiating dozens of lawsuits and millions of dollars in legal bills. The question is when to grant patent protection to a software; or if it’s even wise to grant a patent for the same, do software patents stifle innovation?

There is a good number of people out there who believe software patenting is as important as hardware patenting. Software instils life in the hardware and makes it work. It would barely make any sense to allow patents for one and not for the other. The real problem, they say is that patent examiners issue numerous patents based on broadly defined claims which makes it difficult to distinguish between a real invention and the obvious.

Whereas some say that software is just a collection of abstract ideas and mental processes which shouldn’t be patentable. However, the USPTO grants umpteen number software patents every year. They believe that software patents curb innovation and should be banned for good. They believe that the money spent in acquiring software patents and defending them should otherwise be spent on R&D for developing new products.

The consequences of banning software patents would be many. While it’s very difficult to define software patents, but any patent that talks about a computer program in whole in the invention disclosure should fall in the category of software patents. But if we go by this notion, software patents are omnipresent – they exist in almost every industry.

Consider the patent for Google glasses which has a CPU(hardware) which allows the user to perform various functions through a timeline like interface (software); or perhaps the patent for Google’s driverless car or 3-d printers – all of them have software integration along with the hardware. So, if software patenting is banned, such inventions would never come into existence.

There are too many software patents with ridiculous broad claims leading to unnecessary litigation. Some companies don’t make products and just own a lot of software patents with a purpose of suing others. It’s easy for any aspiring developer to infringe on software patents unintentionally, just because there are so many that exist. Such issues aren’t unique to the software industry and the way to resolve them isn’t by eliminating software patents.

Bob Zeidman, the author of The Software IP Detective’s Handbook shares his experience about one of his patents that had to do “tasks” for an operating system and the examiners searched for the word “tasks” and anything that had the word “task” in it and apparently, their searches retrieved relevant prior art.  The problem, it seems is with the patent examination as it’s often very difficult for patent examiners to distinguish the obvious from true invention in terms of software. Though it’s not an easy task to wipe out all the inefficiencies of the patent system so quickly, there’s definitely a lot of scope for improvement. Perhaps, the patent system requires a change in addition to the existing criteria to have clear borders in defining claims for software patents to be acceptable because enormous resources get wasted if the boundaries are unclear over needless disputes.

The patenting system could borrow something from the academic community and begin peer-reviewing patents, requesting several independent evaluations from outside experts. One of the problems with the patent office is that their expertise and time is limited compared with the number of applications they receive. Peer-reviewers would be paid for their time, make their names known on the application and their roles be limited to providing advice to the examiner rather than making the final decision (to avoid conflicts of interest). After turning their comments in, they would also be able to see and comment on all the other reviewers. This way, if there are any particularly good or bad reviews, then this helps highlight them by further peer-reviewing the peer-reviewers. Finally, perhaps journals should enforce a difficult choice for most academics—to publish OR patent, but not both. A patent is a publication, after all, even if not peer-reviewed.

Conclusion

We live in the digital age, and plenty of new innovations coming out are computer related. The call to end software patents is growing, but doing so may be a Faustian bargain. How will we protect and incentivize the next great idea to become a reality—to move from paper to practice? Clearly though, the list of problems associated with software patents is growing and the list of solutions needs to catch up.

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