Microsoft General Counsel Brad Smith talked yesterday of patent reform (covered here and here). Some of his ideas:
* remove the patent fee for small businesses, universities and others
* have third parties peer review patents
* don’t divert the patent fee revenue to the general fund
* improve patent law internationally
* single court system for more consistent review of patents
* better definition of “willful infringement”
First, I agree that the patent fee is a hurdle for small businesses. Especially if an individual has a potentially large number of patents that they can file–which is definitely the case in leading edge software development. But it’s not the patent fee that’s the big issue. You’ll still need legal assistance writing and filing the patent. And then there’s the cost of pursuing action. With more people filing patents it doesn’t take much to see that even more people will think their patent’s are infringed–even if technically they aren’t. It’ll cost both sides. It’ll cost you to be in court. It’ll cost you to get your money. It’ll cost you to defend your efforts. And I just don’t need money. Time is a big factor here. Pursuing or defending against a patent infringement case by a small, inexperienced company (even with a good lawyer), is unlikely to have a happy ending. Making it easier for more patents isn’t going to solve the fundamental problems.
Further, I’d tell Brad Smith that there’s a huge difference between a shareware vendor filing a patent and a university doing the same. Again, it’s the legal representation. Take the top 100 universities in the US. They are all multi-million dollar businesses. They’ll protect their IP portfolio. They’ll challenge. They’ll litigate.
In fact, as the power expressed by software patents continues to grow, large companies that work with both universities and large numbers of small businesses–quite common in the tech world–will find themselves funding research that ultimately blocks out their very customers later more and more. The net effect is to transfer IP that could have nourished their small businesses customers (and likely to have gone unpatented) to endowed universities that aggressively protect their IP.
The real fix to software patents is too late to do: Exclude software from being patented. An alternative is to mitigate their value. We need to refine the legal value of a software patent so that it’s no more than–guess what–a copyright. In other words, someone has to prove that they implemented a software invention just the way you did before you’re considered an infringer. In other words, the software is the machine and the machines must be “identical” for there to be infringement. The code itself would be part of the claim. Shortening the enforceable period of a software patent is another way to mitigate their value. I’m sure there are others.
Now there are some other “solutions” for small businesses and shareware developers. A pool of free, community legal advisors would help. Think open source, but in this case open patents. Initially volunteers could help small developers patent their work and pursue infringers. The money collected could feed back into the system. In addition, all the companies that participate in the patent community would be allowed to use other patents in the pool. With several wins the group could become quite a force Similarly, if you’re sued, the group would handle it. As a developer, you’d essentially be handing over the IP to someone else. You wouldn’t be able to profit from it directly, but you’d be better protected against others challenging you. It doesn’t solve the problem of small businesses getting sidetracked into IP issues, but at least it would work with the current system of patents–which I imagine are going to be here for a long time.
I applaud Microsoft for stepping forward and talking about patent reform. It’s an increasingly crucial topic.