Charles Duhigg and Steve Lohr, reporters for The New York Times, have published an insightful commentary on the current state of the patent system and, in particular, the state of software patents.
The New York Times article identifies some of the unexpected ways that high tech firms, specifically Apple and the firms that they have worked with to implement speech recognition within their products, have used intellectual property protections as a commercial tool. The article provides a succinct description of some of the current challenges facing the patent system and highlights topics of discussion that are especially relevant to computer software patents.
Although written from the perspective of the United States experience, the article offers insight to Canadian companies who are either in the course of, or about to start, pursuing a software patent. Duhigg and Lohr raise numerous issues with the process and hint at a system under incredible stress. Two areas of concern are raised by their article: how high technology companies are using the patent system; and the fact that engineers and entrepreneurs have conflicting views on the patent regime.
The Distorted Purpose of Some Software Patents
The first area of discussion concerns the reason that some larger information technology firms are pursuing patents. A modern view of the purpose of the patent system, which differs from the historical view that places importance on disclosing the invention to the public, is that the system provides incentive for the commercialization of inventions. As Professor David Vaver puts it, the rights conferred to the owner of an invention through the patent include a monopoly that provides “a lengthy breathing-space to enable the invention to be developed and marketed” thereby allowing the inventor to recoup any cost incurred in the development of the invention and to gain any further money collected as profit on their invention. Both of these views recognize an “innovative bargain”; in exchange for a monopoly, society experiences a net gain in innovation by either learning about an invention through disclosure within the patent or the dissemination of skills of the people who helped develop it, or by purchasing a product or service that includes the patented invention.
The actions and motives of Apple described in Duhigg and Lohr’s article, however, do not fit either of these views. Recent patent dispute cases involving mobile phone giants Google, Motorola, Nokia, and Samsung, and Apple’s actions discussed within The New York Times article, point to another purpose of the patent system: market control. Apple’s overly-aggressive stance on patenting described in the article is more akin to military tactics than securing investment to refine an idea. Terms such as “ceasefire”, “warfare”, and “arms race” no longer strictly refer to the latest international dispute but also to the research and development of the next generation of smart phones. Using the patent system to achieve market control does not respect the innovation bargain, offers questionable benefit for the public, and could actually be decreasing the amount of innovation experienced by society.
Conflicting Views of the System of Engineers and Entrepreneurs
The second area of discussion suggested in The New York Times article underscores different approaches of technical and business actors behind software patents, namely engineers and entrepreneurs. Business actors are interested in attaining commercial gain from a patent, such as using the patent’s monopoly period to achieve commercialization and blocking other actors entering into the commercial space of the invention. By contrast, technical actors are interested in gaining a period of time offering freedom to develop the invention without fear of interference. Independent inventors – inventors that both create and own their inventions – play both roles. Corporate inventors, however, will usually separate the positions representing the separate roles within their corporate hierarchy. This delineation between the two groups allows us to contrast their priorities.
Duhigg and Lohr’s article, in their description of Apple’s “innovation meetings”, highlights the growing disagreement between these two parties. In sum, most computer scientists and engineers in corporate atmospheres think that software patents are “evil” because they capture common concepts and do not offer any positive benefit to society. In many cases commercialization has already been achieved, and, in any event, technical actors do not usually concern themselves with that aspect of the process. Entrepreneurs see patents as incredible business tools that raise capital and block competitors. Evidence of the technical view can be seen in the Free Software Foundation’s End Software Patent Project, the Electronic Frontier Foundation’s Patent Busing Project, and various other initiatives. The technical view, while usually popular amongst scientists and engineers, can also be seen at the corporate level in technology-friendly companies who only use patents in a defensive manner (such as Twitter, and IBM on some of their patents). Unfortunately this sentiment may only last as long as the current corporate management is in control, and might not survive acquisition from a larger and more aggressive company.
The individual technical actors do not have any recourse available to them resulting in a smaller role in the process and an increasing amount of software patents granted per year. The New York Times article shows a technology company placing more priority on the process than on the value of the invention. As stated by Nancy R. Heinen within the article, “When patent lawyers become rock stars, it is a bad sign for where an industry is heading.”
A System under Stress
These topics may represent the evolution of the patent system or the internal checks and balances that allow the system to operate efficiently. They also represent signs of stress as the system tries to maintain its underlying purpose, a benefit to both society and the inventor. As patent applicants try to use the system to their advantage, whether repeatedly submitting the same patent application until they can find an examiner willing to approve it or submitting claims so vague that any protection granted confers far too much power to the owner of the patent, the stress generated is threatening this underlying purpose.
This discussion inevitably leads to the question of whether the patent system should be modified to deal with these stresses. Should the patent system organically handle new subjects of technology as they are developed, or should we carve out certain subjects in legislation to prevent possible strains? Is it possible, ignoring or avoiding current international agreements, to separate different subject matter into different levels or periods of protection? The patent system appears to work well for specific industries, such as the pharmaceutical industry; do we want to risk this success to improve other areas? Regardless of the answer, public policy needs to account for the growing discord within the software industry on how the patent system is being used and whether or not software patents should even exist.
Mark Bowman is a JD Candidate at Osgoode Hall Law School.
Thanks Mark, I thought your article provided some good points about the evolving purpose of the patent regime.
As you pointed out, I’m also curious to see how much change the system can handle organically before reform is required.
Good article Mark. Though it is increasingly difficult to define “software patent”, in my opinion. When one drafts a patent application for an invention that consists of at least one software component, some level of hardware (e.g.: a processor, a computer- readable storage device, etc.) is always necessary. That is, you will never have a “pure” software patent without some hardware involved. Amazon is a classic example. So where do you draw the line, if you were to exclude “software” out of patentable subject matters? Herein lies in devil, I think.
I think the question is no longer whether the patent system should be modified but how it should be modified. Defensive patent efforts like Twitter’s IPA are good, but as you say, not necessarily sustainable over a long period nor are they optimally effective. If software remains patentable subject matter, there must be changes made to how we deal with them.
On a statutory level, we can shorten the term of software patents to reduce the power of patent trolls, who were found to begin asserting their patent rights late in the term. The problem with trolls and the technology industry is evident (lawsuits filed by patent trolls have almost doubled (from 22% to 40%) in the past five years and are particularly harmful to start-ups), so much so that US congress has introduced a bill that will force trolls to pay for litigation costs in cases where the court finds that they had no reasonable likelihood of succeeding.
Another possible solution is to introduce an independent innovation defence, which is discussed beautifully by Samson Vermont and later by Lemley. This proposition has also been suggested by EFF (along with a number of other valid ideas).
Finally, we can instruct courts to tailor patent law to suit the needs of various types of businesses. If parliament continues to be deadlocked on the issue, this may be the most viable path to take – at least while we’re waiting.
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