I may be a legal layperson, but I thought patents were supposed to be new, useful and nonobvious. A growing problem in our industry is not patents themselves, but how they are issued. Patents are submitted to the Patent Office (PTO), reviewed and then issued. If you have an issue with the legitimacy of the patent, you hire a lawyer and go to court.
When applying for a patent, you are supposed list other work that preceded your idea. The people using the identified items are considered to have prior art and the PTO determines whether the new idea is novel using these submissions.
The weakness in the system is determining whether a submission is obvious or not. Examining the issue in the context of software is difficult and many believe the PTO does not have the capabilitiy to make these judgements. The issue has been kicking around for a while, and had made its way to Congress again.
This week a hearing was held on the topic of patent reform. In his opening remarks, Rep. Howard Berman (D-CA) said:
If the patent system allows questionable patents to issue and does not provide adequate safeguards against patent abuses, the system will stifle innovation and interfere with competitive market forces.
This hearing is exploring the idea of providing a period, after review, for the community to comment on the submission before the patent is issued. This approach would allow for more information to be collected that in turn would be used to determine whether a submission was obvious. The community would be used to help the PTO make the determination before the patent is granted.
This should be an important issue to the industry because we rely on Internet technologies to reach out to consumers. Patents (and challenging them) increase our costs of operations. Further, innovation is at the heart of differentiation and nonobvious patents can slow down the entire industry
I’m all for rewarding those who come up with patents, but I question whether some of them are really nonobvious. What is nonobvious to a business person can be blatently obvious to a software engineer.
Excellent post, Mark. As a recovering lawyer trying my best to make an impact in the MLS software business, I’m continually astounded at the patents the PTO is granting. They are understaffed and, with the flurry of applications and prior art, determining the state of the art in the software world is nearly impossible even with appropriate staffing. The PTO needs to engage the larger community to help with the review process. Better yet, Congress could simply remove software from patent protection, leaving protection to trade secret and copyright. The rapid innovation of the last few decades in the open source world shows that Congress does not need to incentivize or protect investments in software with a sledge hammer like patents, particularly now that the term of patent protection has been extended to twenty years. Seriously, what investment in software needs monopoly patent protection for twenty years?