Software Patents: Leeches and Cupping for What Ails Modern Invention

Patent law is as broken as the rest of intellectual property, but since patent deals with inventions, rather than ideas or expressions as with most other branches of IP law, its problems are unique to it and outside my general area of interest. That being the intersection of social media and intellectual property rights enforcement.

As a result, I rarely post on patents. That won’t change, but there is a growing drumbeat of discontent in patent law, especially as it relates to software patents, where social media was and continues to be birthed and where the patent system is seen as a way to stymie the competition rather than promote innovation. There is also a sense that the patent reform in congress will do little or nothing to fix the real problems.

Did Google spend 12.5 billion dollars that could have been used to innovate on Motorola just for the litigation advantage its patents might give it? And will Microsoft be the big winner? There are other examples of Google practicing defensive patent buying. See  Google is Packing Heat (With Sights on Apple)

Or from the Guardian, “Patents are now a multibillion-dollar industry in which companies find it more attractive to make money suing each other for infringement than actually making things.”

Mike Masnicjk, writing in Techdirt recently suggested several fixes that should be, but are not being, considered by congress as it drafts patent reform. My favorite suggestion regards obviousness. As most of you are aware, one of the requirements of patentability is non-obviousness, but the standard is so low as to be laughable. How obvious does something have to be before it stops being non-obvious?

Masnick points out that independent invention should be a defense against patent infringement in much the same way that it is in copyright. And he goes further and claims that independent invention should be evidence of non-patentability. Which makes perfect sense to me, give “non-obvious” some teeth.

Recognize that independent invention is a sign of lack of patentability: This one is a bit more controversial, but the point of the patent system is supposedly only to reward patents on inventions that are non-obvious to those skilled in the art. If multiple people, skilled in the art, are coming up with the same thing independently at the same time, it seems like pretty strong evidence that, in fact, the ideas were obvious to those skilled in the art.

This seems so obvious to me that if it is, as Masnick says, controversial, that’s just more evidence that the system is broken. Read the whole thing, it’s not long and doesn’t require a lot of patent knowledge.


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