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 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.
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.
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.
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.
Comments
Michael
2012-03-25 22:18:13
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.