In my previous posts, I have been talking about software patents. In this post, I would like to discuss the effect that bad patents and patent trolls have on innovation. When I use the term ‘bad patents’, I am referring to what I believe are two categories patents. First are the patents that meet the current criteria for patentability, but don’t meet the criteria that I believe should be the standard for patenting software. I will discuss this tomorrow when I post about how I believe the patent system should work with regards to software patents. The second category includes patents that do not meet the current criteria set forth by the patent office, but have been approved anyways. This is the type of bad patents I will be discussing now.

     In the early stages of software patentability, the patent office did not look at computer science majors as engineers (patent agents need to have an engineering or science background). This may or may not explain the vast quantity of bad software patents on the books today. One gleaming example occurred in 2006, when the patent office granted a patent on linked lists, one of the most basic building blocks of many software languages. These patents would most likely be overturned if taken to court because of prior art, but their effect on innovation is serious. Image an inventor who creates a software program. He spends his own money to finance the development. After development, he hires an attorney to do a patent search during which the attorney discovers bad patents that cover some of the processes in his application. The attorney assures the inventor that if the patent owners attempt to enforce these patents that they will not hold up in court, as there is prior art or some other technical reason that the patent would be found invalid. What should the inventor do? Should he take out a second mortgage on his house to fund marketing and distribution? Would you? Would you stake your financial future on a product that violates a patent, even if that patent shouldn’t have been granted in the first place? Would you risk an injunction forbidding you from selling your product while months or years of litigation play out? I wouldn’t and I imagine that many others wouldn’t either.

     Patent trolls are another hindrance to innovation. These companies acquire patents, sit on them, and then sue companies that infringe upon them. These companies do not produce any products, they just sue people that do. I have discussed how many large software companies have a patent “war-chest”. This common tactic keeps software companies safe from being sued for infringement as they pull a counter suit from this chest and in essence, cancel each other out. However, patent trolls aren’t deterred by these defensive patents. Since they don’t actually produce anything, there is no way they can be infringing on someone else’s patents. Worst of all, they don’t sue when the infringing product first comes out. They wait until the product gains popularity and then they strike. So inessence, these companies do nothing more than prevent innovation.

     So what can be done? Well, good reader, tomorrow I will give you the solution. I will explain to you how I believe the patent process should work with regards to software patents. I’m sure the folks at the USPTO are on the edge of their seats.

Stephen Burch

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