Software Patent Trends

The Patent Prospector reports on IP Law 360’s 2006 survey [subscription required] of tech patent litigation. Increasingly, new product launches are met with lawsuits, and more often from non-practicing patent holders (“trolls”) or patent licensing companies working for them. As you might expect, Microsoft is the #1 target.

The patent system is a mess. The House of Representatives acknowledged as much this week, holding patent reform hearings. But in particular, software patents are a huge problem.

To get an idea of what’s at stake, let’s start with some background: Bitlaw’s history of software patents. Why are software patents problematic? Amazon’s “One Click” patent is a classic example. To many people, a patent for clicking the “Buy” button seems ridiculous. Richard Stallman has been particularly outspoken and lucid on this point.

In the past year, there have been new attempts to improve the patent process like IBM’s IP marketplace manifesto. Interestingly, large, established corporations like Microsoft and Oracle are leading the push in the tech sector for patent reform. This is largely due to the ease with which big tech companies exchange patent licenses — quickly resolving patent disputes is a way of life.

New York Law School’s Peer to Patent Project made headlines in May 2006 with the US Patent and Trademark Office agreeing to a pilot peer-review program. Unfortunately there has been no news out of USPTO since then. Check out the Peer to Patent proposal.

We only grant the limited monopoly of a patent in return for the benefit of the innovation entering the public sphere. With the Free Software movement gaining traction, we may eventually decide that software openness is so fundamental that we shouldn’t pay for it at all. But either way, opening the patent process to peer review is the first step to allowing that decision to be made by the public.