04.17.12

More Pressure to Eliminate Software Patents in the US

Posted in America, Law, Patents at 4:33 pm by Dr. Roy Schestowitz

Pressure is mounting

Mechanics' room

Summary: A collection of items from the past month, all of which show the need and desire for a serious patent reform

THE USE of patents against software products is getting very widespread, especially in the lucrative mobile arena (lawsuits en masse with multiple defendants). Julie Samuels from the EFF urged SCOTUS to do something (we already covered the nonchalance of the SCOTUS) and so did CATO, which wrote:

In his famous essay “The Use of Knowledge in Society,” Friedrich Hayek argued that the socialists of his day falsely assumed that knowledge about economy could be taken as “given” to central planners. In reality, information about the economy—about what products are needed and where the necessary resources can be found—is dispersed among a society’s population. Economic policies that implicitly depend on omniscient decision-makers are doomed to failure, because the decision-makers won’t have the information they need to make good decisions.

In a new paper to be published by the NYU Annual Survey of American Law, Christina Mulligan (who drafted a recent amicus brief for Cato) and I argue that the contemporary patent debate suffers from a similar blind spot. A patent is a demand that the world refrain from using a particular machine or process. To comply with this demand, third parties need an efficient way to discover which patents they are in danger of infringing. Yet we show that for some industries, including software, the costs of discovering which patents one is in danger of infringing are astronomical. As a consequence, most software firms don’t even try to avoid infringing peoples’ patents.

There is more and more scholarly work pointing out the obvious (e.g. newest study from Bessen and his co-workers), but decisions to permit patenting of algorithms are not fact- or evidence-based, they are lobbying-based.

A month ago someone wrote this essay which says:

Impractical Software patents

[...]

Software patents are utterly impractical to promote innovation. Here are a few American articles that we recommend you to read to broaden your clear understanding of numerous and inextricable software patents issues. The multiplication of insane litiges is an additional proof that software patents are an inadequate tool. In reality the patent establishment is the main pushing force towards software patentability in Europe with the support of some major IT companies. Their main and sad aim is not to promote but to impede technology and distort markets.

Yahoo employees were furious at the time as “Aspiring Patent Troll Yahoo Shakes Down Facebook” with patents from engineers who never wanted software patents anyway. Yes, even many of those who earn software patents are fundamentally against it; their employers prod them for it. Why are those patents legal in the first place? Who are they really for? There is "institutional corruption" at play — a disparity between reality and practice, public opinion and existing law. █

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