Software patents limit creativity, innovation

Credit: Rachel Inman/Art Staff Credit: Rachel Inman/Art Staff
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Recently, CEO Mark Zuckerberg and other people of software development importance at Facebook Inc. were awarded a patent for the News Feed feature. This patent, entirely based on software, is very potent and has significant implications for other social networks. It is not as general as many other patents, but it is a symptom of a larger problem in the U.S. patent system.

The system of intellectual property (IP) legislation was set in place, according to the U.S. Constitution, “to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” IP legislation covers patents, trademarks, trade secrets, and copyrights. However, the current system has major flaws in the application process for patents. These flaws allow corporations to abuse the patent system to leech resources from companies — resources that would be better spent improving products.

The patent system is lax, and intentionally so. Allowing laxity in a system of IP protection permits patents that need not have practical applications or represent significant innovation on the part of the patent holder, in case usages are found for their devices during the term of their patent. Alternately, a patent can be used as a defensive mechanism, creating a sort of standoff where two companies produce products that have mutual violations, but no suit is filed.

However, there exists a type of corporation referred to as a “patent troll.” These corporations apply for, and receive, patents that allow them to sue existing successful companies. These companies produce no products, so they are not afraid of countersuits by the established corporations that they threaten. The companies are granted patents that allow them to siphon money from established corporations by exploiting weaknesses in the patent application process. This exploitation allows them to gain patents for technologies that already exist or patents that are so general that they could apply to almost any product on the market.

The weaknesses these companies exploit target the patent application process. When a patent application is submitted, it is reviewed by employees of the Patent and Trademark Office. These individuals are highly skilled in their field of study, but since they are expected to review patents from a diverse range of specialties, errors are inevitable. There is a section of the patent application, called the prior art section, that exists to give the reviewer the background information necessary to understand the patent. However, abuse patents simply omit the section entirely or overwhelm the reviewer with hundreds or thousands of references, making it impossible to fully comprehend the context for the patent. This leads to the acceptance of applications that should not be granted patents.

In addition, there is a new type of patent that is particularly vulnerable to abuse. These are software patents. Software patents are open to abuse because they very closely resemble business processes. This allows patenting organizations to patent processes, claiming they are software innovations, rather than inventions, and thereby removing the need for a physical component.

In addition, the patenting of a software application removes specificity from the claimed invention, allowing any software application that performs the same function to violate the patent and create grounds for a lawsuit.

The outlook for an entity facing a suit for patent infringement is dire. All suits concerning patent infringement are heard in a trial before a jury. The defense has little hope of convincing a jury, consisting of persons not trained in the field, of the highly technical differences between the patent they are being sued for violating and the actual operating process of their product. To make matters worse, even if a qualified expert were to be drawn in the jury duty lottery, the prosecution could have the juror removed from the jury before the trial began. Because of this, defendants often settle out of court for large sums of money. This constant barrage of lawsuits drains the corporations of resources that could be used to create better products, and thus deprives the consumer of innovative technologies that could be highly beneficial.

The solution to this problem, however, is simple. By implementing a system of peer reviews, where subject matter experts are asked to weigh in on the suitability of a patent application, U.S. IP legislation can bring some sanity back into the process of patents.

There are members of both the industry and academic communities that would relish the opportunity to review patents for the Patent and Trademark Office. By allowing these persons to review patents and have a word in the final decision, the integrity of the patent system is preserved without undermining the protections guaranteed by the IP legislation. This proposed system creates a much better distinction between those developments that are and are not patent-worthy and protects both truly innovative entities and those organizations that want to use well-established systems and concepts in order to improve their products.