"How this can be? How can the US Patent Office issue such a broad and obviously absurd patent?" A number of people have asked me this question during the past several days.
Brad Feld (Feld Thoughts) has the best blog postings I have seen on the subject of software patents:
1. Abolish Software Patents: "After wrestling with software patents for the past 15 years, I’ve concluded that there simply is no middle ground. If we continue on the path we are on, patents will continue to increase in their overall expense to the system, everyone will feel compelled to continue to apply for as many (and as broad) patents as possible, if only for defensive reasons (one of Fred’s VC Cliche’s of the Week was “Patents are like nuclear bombs, you just got to have some.”) Let’s take a page from geopolitical warfare and focus on global disarmament, rather than mutually assured destruction."
2. More on Abolishing Software Patents: "After reading the transcript, I came away feeling more strongly than ever that software patents should be abolished. All the counter arguments - especially about creating a liquid market – sail right past the key point of the difficulty with software patents – a requirement that the patent be non-obviousness or that there be no prior art. I’ll restate the central point of my original argument – I’ve carefully read hundreds of patents (yes, parts of my life are extremely tedious and boring) and most – if not all – of the software patents that I’ve read fail either the non-obvious or the no prior art requirement.
However, once a patent is granted, it’s now a property right and the only way to deal with it is to pay for the right to use it or to litigate against its validity. For a young, cash strapped, entrepreneurial company working on new innovations, paying for the right to use something that you believe shouldn’t have been patented in the first place is effectively the equivalent of a regulatory burden which is well known to stifle innovation. Your alternative to litigate in advance of creating your innovation is impractical – it’s almost certain that you won’t have the financial resources to do this. For a large, cash rich company that employs lots of lawyers, creating more property rights (e.g. patents), even if they are bogus, is now part of their business process.
All of the current argument in favor of software patents presume
that software patents are legitimate. If 99% of them were, my argument
wouldn’t be valid. However, my guess is that – if subjected to a deep,
open, and all inclusive review approach like the one that John Funk recently proposed -
less than 1% of software patents would stand. Even if I’m wrong and
it’s 80/20 or even 50/50, I believe my point holds. If your property
is illegally or inappropriately gotten, you should not stand to profit
from it. If you think you should because of “the system” or the lack
of expertise / ability / time / whatever of the current patent system,
just go read Atlas Shrugged
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