Reading13: A Patent Is a Terrible Thing to Waste
A patent is “an exclusive right granted for an invention”. Essentially, it is a way to guarantee ownership of an invention, so that it can only be used by the patent holder, or by other parties at the patent holder’s discretion. This allows the patent holder to disclose or release more detailed information about the invention (ostensibly to further human knowledge) while still retaining the benefit from being its inventor.
I think patents, on principle, are necessary and proper – it makes sense to afford protections to those who invented something so that they can reap the benefits. Doing so encourages innovation: people or groups are willing to expend significant resources to develop or create something new, because they can stand reasonably assured that they can benefit from it, should it be a success.
With traditional physical artifacts or inventions, patent litigation is relatively straightforward. Another artifact infringes on the patent if it is clearly very similar or even the same, or uses designs, etc from an existing patent. But, as we’ve seen so many times before, things that seem to be clear or have worked so far get considerably muddier when applied to the world of software and computer science.
The reason that it’s somewhat controversial is that “software” umbrella covers a staggeringly wide array of things. Software can be simply implementations of mathematical formulas or algorithms – as was the case in Gottschalk v. Benson, where the software in question was used to convert numbers from one format to another. I think the court was correct to rule that it was an abstract mathematical idea and therefore could not be patented.
It seems clear to me that software that close to theory and mathematics should not be patentable. On the other end of the spectrum lies large software suites or products. It makes sense to me that these should be patentable – considerable work was spent to engineer and create them, and their use should be protected, just as physical products.
In the middle, along the spectrum, it gets muddier. I don’t know if there’s a good way to draw clear lines in the sand defining what should and should not be patentable. Software and how it is used changes quickly; it would be almost impossible to codify an exhaustive set of rules that define software patent rules. At least in the judgments that were presented in the readings, I honestly think the courts have done a decent job of ruling on a case-by-case basis, and explaining why things were the case as they too try to explore how traditional patent and IP rules apply to software.
The area of the IP system that is in most need of overhaul is the litigation of patents, specifically in regards to the existence of patent trolls. It is a clear symptom of a broken system that there are “companies” with no sources of income aside from patent litigation. Such companies are contributing nothing, only benefitting at the expense of others using rules that were meant to protect inventors, not endanger them.
Something that may help combat the issue is the introduction of another requirement for patent litigation: proof of “stake” – show that they are using the patent, or at least doing work that closely relates to it. This would prevent patent trolls from buying patents simply for the purpose of litigation – unless they were also doing work in that area and began using the patent, they couldn’t litigate frivolously.
The argument against such a rule would be that it would negatively impact individuals, rather than companies. For example, if one person invented something but does not plan to move forward with it commercially, he or she could be at risk of effectively losing the patent (by not having proof of “stake”). The proper thing would be for this person to be able to continue to hold it and earn royalties off its use.
Maybe the solution is for this requirement of “stake” to not kick in for the first few years of a patent – long enough for a private citizen to, if not planning on using it, to determine its worth and sell it to someone who will. It would prevent someone from inventing something and then keeping the patent long-term if they are not using it… but is that a bad thing? Shouldn’t our IP system bias towards those who are using the patents to create things and contribute to society? If doing so prevents patent trolls from extorting onerous sums of money from fledgling businesses (and large, if less burdensome, amounts from big ones), I’m all for making patents “use or lose”.