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The Top Court Should Invalidate Software Patents

Last weekend I had been thrilled to listen to among my personal favorite radio programs, This American Existence, occupy the problem of software patents. Computer developers happen to be sounding the alarm relating to this problem for 2 decades, and it is great to determine mainstream media shops finally begin to provide the problem the type of attention it warrants. TAL devoted a complete hour towards the subject, concentrating on Intellectual Endeavors (which I have discussed in more detail) and did a truly spectacular job.

This American Life's story-telling format causes it to be ideal for explaining an issue, however it did not spend whenever talking about potential solutions. So within this publish I really hope to complete the space by explaining things i believe to be the greatest solution and just how we have to make it happen.

In my opinion, the answer is easy: software should not be qualified for patent protection. That may seem simplistic, but you will find top reasons to think abolition of software patents may be the right reform. Software programs are essentially different kinds of inventions. To begin with, software programs are virtually alone in becoming qualified for both patent and copyright protection. This will make patent protection mostly unnecessary. Second, writing software programs are a person, significant activity a minimum of around it's an engineering discipline. We do not expect writers to employ patent lawyers, and computer developers should not need to either. Finally, the "software industry" is significantly more diffuse and diverse compared to typical patent-qualified industry. Watch using more than a number of employees comes with an IT department creating potentially patent-infringing software. Not one other group of patents has this characteristic.

Regrettably, as Matt Yglesias highlights, the patent reform legislation now working its way through Congress is woefully insufficient. I'd like to believe that a wave of negative publicity for software patents would produce better legislation, but that is not realistic. At this time, software patents simply benefit a lot of established interests to anticipate Congress to enact serious reforms.

This means that the very best expect reform lies using the courts. The Top Court stated three occasions that mathematical calculations (a.k.a. "software") aren't qualified for patent protection. Regrettably, all of the these choices was 30 years ago, also it was muddled enough to permit lower courts to progressively make software patents simpler to obtain.

However in principle, individuals old Top Court choices continue to be good law, even when lower courts have become within the practice of disregarding them. The Top Court just must say they meant it. Indeed, many software patent experts wished that last year's Bilski v. Kappos situation will be a initial step for the reason that direction. The situation centered on "business method" patents, that was legalized within the same 1998 decision that decisively legalized software patents. However the Bilski situation ended up as being a 5-4 nail-biter, having a conservative majority striking lower the specific business method patent within the situation but declining to eliminate business method patents generally.[gallery]

There's strong circumstantial evidence that Justice Scalia was (uncharacteristically) your swing election, which he's deeply ambivalent about business method and software patents. In the majority opinion, Justice Kennedy worried that invalidating business method patents would "create uncertainty regarding the patentability of software, advanced diagnostic medicine techniques, and inventions depending on linear programming, data compression, and also the manipulation of digital signals." That might be quite a depressing read for software patent competitors much like me with the exception that Scalia pointedly rejected to become listed on this area of the majority opinion. With only four votes, that area of the opinion is not binding precedent. Which is not the very first hint that Scalia has doubts about software's patentability.

Justice Stevens authored an impassioned dissent with business method patents to become invalidated. Stevens upon the market shortly later on (see my tribute), but his dissent was signed through the three other liberals still in the game. We do not understand what Justice Kagan thinks, however it appears likely that they might have on the sides together with her fellow liberals. Four liberals plus Justice Scalia will be a majority.

Obviously, invalidating software patents at this time could be intensely questionable, since it would invalidate 100s of 1000's of patents?aworth vast amounts of dollars?aat just one stroke. Courts always avoid upsetting apple buggies. However in this situation, invalidating individuals patents could be good policy additionally to get affordable law. The growing worth of software patents signifies not producing new wealth but an progressively lucrative type of rent-seeking. Because the number and worth of software patents develops, the situation for invalidating them will get more powerful, not less strong.

However the Top Court will not take this type of dramatic step unless of course there's an extensive consensus that patents are harmful to software innovation. And for this reason it is so valuable to possess mainstream programs such as this American Existence since the problem. Justice Kennedy was clearly not aware that many computer developers consider patents an impediment for their work. Only when this fact becomes common understanding, in the manner that everybody knows doctors hate malpractice legal cases, can we have hope from the Supreme Court?aand particularly Justice Scalia?adoing the best factor.

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