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03.25.12

More Calls, Hopes to End Software Patents in the United States

Posted in Patents at 6:18 am by Dr. Roy Schestowitz

USPTO building

Summary: News about software patents in the US, with the real possibility of simply eliminating all of them

THE thing about software patents is, a lot of people are against them. The apathetic do not understand the subject and those who are informed are almost always against software patents.

The legal meta-industry does not care what the public wants. This fake ‘industry’ just monetises litigation, disputes, and paperwork. The SCOTUS is again asked to review a software patents ruling, but we don't hold our breath when it comes to the SCOTUS. As The H put it:

The Electronic Frontier Foundation (EFF) civil rights organisation, the Computer and Communications Industry Association (CCIA), and open source company Red Hat have urged the US Supreme Court to provide further guidelines on the patentability of software and computer-based inventions. They have asked the Supreme Court to clarify the point at which an idea becomes too abstract to be patented, saying that current legislation in this area is inconsistent, confusing and impedes progress in the internet and computer fields.

Rob Tiller from Red Hat sees the possibility of software patents losing their teeth in the US. In a new article he states:

The Supreme Court’s new opinion on patent eligibility is an important step in the right direction in addressing the problem of software patents. It shows that the Court is mindful of the risks that patents can hold for innovation, and will provide a useful precedent for the next big software patents case.

The case, Mayo Collaborative Services v. Prometheus Laboratories, Inc., concerned the validity of patents of Prometheus relating to diagnostic testing for autoimmune diseases such as Crohn’s disease and ulcerative colitis. The patents set forth levels of metabolites in the bloodstream that would indicate whether a particular drug dosage should be increased or decreased.

Meanwhile, the corporate press in the US joins the call to end software patents, citing CATO:

But what if we left morality out of it entirely? As a new paper by Cato’s Timothy B. Lee and Yale’s Christina Mulligan details, there are far more severe practical problems with our current approach to software patents. Say you’re developing some software, and you want to make sure you’re not infringing on anyone else’s work. How would you even go about doing this? There’s no easily searchable database for software ideas — it’s not like cross-checking chemical formulas, which are easily “indexable.” In fact, Lee and Mulligan argue that there’s no good way to create a convenient database for software patents. Which means that trying to check for infringement is all but impossible for developers.

To get a sense for the scale, Lee and Mulligan estimate that if every firm in America that uses software — from maintaining a Web site to using an Internet-based invoice system — wanted to check its code for infringement, it would take 2 million patent attorneys, working full time, to pore over the records. That would cost about $400 billion in lawyer’s fees. And, for reference, there are only around 40,000 software patent lawyers currently employed in America today. That’s why most developers don’t even bother checking for infringement. The costs are prohibitively high. Instead, they plow ahead with development and hope for the best.

This, of course, is excellent news for patent trolls. As a trio of Boston University researchers — James E. Bessen, Michael J. Meurer, and Jennifer Laurissa Ford — recently found, infringement lawsuits filed by companies that aren’t even using their patents (known as “non-practicing entities”) have skyrocketed since 1990, costing the economy $500 billion over that timeframe and depressing innovation.

Derrick Harris asks, “Can big data fix a broken system for software patents?”

The answer is no; the solution is to eliminate this whole category of patents, not search for prior art.

As long as companies buy software patents with intention of litigation (see “Savtira Expands Patent Portfolio, Looks to Protect Growing Proprietary Cloud IP”) or blocking competition, we are moving backwards. To quote:

Innovate/Protect is the owner of patent assets acquired from Lycos, one of the largest search engine websites of its kind in the mid-late 1990s, with technologies that remain critical to current search platforms.

All those patents become toxic waste, doing nothing but hold back progress. Those Lycos patents are not going to improve search or provide Lycos with an incentive to innovate, not at present anyway.

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A Single Comment

  1. Michael said,

    March 25, 2012 at 5:18 pm

    Gravatar

    I am neither for them nor against them – but I want the system fixed. Best yet would be to have it fixed at a global level, perhaps by *suggestions* from the UN on how to handle IP issues of this type so that there is greater global uniformity.

    But it is not an easy question to answer. Just tossing out protections is no better than the current situation – it is an “solution” being pushed by those who feel they would most benefit, the OSS crowd who wants to be able to use the ideas of others.

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