Thursday, October 4, 2012

Software Patent Solutions

Readers who have been following our recent posts on Lemley's software patent solution might be interested in Santa Clara's upcoming conference, Solutions to the Software Patent Problem, on November 16, 2012. Want to know what the speakers have already said about software patents?

First, here is the description of the conference:
Normally, an academic-oriented conference would debate the merits of software patents. This conference is different. Rather than having another debate, this conference will use a premise—that software patents are a problem—as a springboard for discussing ways to address those problems. In rapid succession, patent experts at the conference will present innovative proposals (ranging from abolishing software patents to company/industry self-help), debate their relative merits, and discuss how they might be implemented. To extend the discussion, many of the speakers and other interested experts will publish short essays in describing their proposed solution and advocating for its adoption. We hope conference attendees and readers will embrace the best proposals and catalyze real action towards solving the software patent problem.
The conference website contains a detailed schedule with an impressive lineup. Here are some things the speakers have previously written about software patents:
  • John Allison – Increased patent protection helped independent inventors compete and was important to some industry incumbents. Also see my post on his study (with Lemley & Walker) of repeat patent litigants.
  • James Bessen – "[I]t is hard to conclude that software patents have provided a net social benefit in the software industry."
  • Brad Burnham – "We need an independent invention defense . . . ."
  • Colleen Chien – History (like the agrarian design patent crisis of the 19th century) suggests that "rather than seek broad-based legislative change, patent reformers would be well-advised to focus on incremental court and market-based reforms."
  • Andrew Chin – Prior arguments for software technology-specific patent law reform lack adequate factual support. We need more engagement between law, econ, & CS.
  • Brian Love – "Patentable subject matter matters not because it is the ideal solution to the ills of software patents—it isn't . . . . [It] matters because it is virtually the only defensive mechanism left for repeat victims of software patent holdup."
  • Mark Lemley – See my post on his new paper from last week.
  • Peter Menell – "[C]omputer software derives substantial protection from trade secrecy and copyright protection . . . [which] can obviate or substantially substitute for patent protection for computer software, which can have various undesirable effects."
  • Michael Meurer (with Bessen) – Software is different and particularly problematic because it is abstract, and software patents "play a central role in the failure of the patent system as a whole."
  • Christina Mulligan – The patent system doesn't scale for software; i.e., because of "[t]he sheer number of patents and firms, and the lack of an effective organizational scheme for patents," for software, "patent clearance would require the services of many more patent attorneys than exist in the United States."
  • Arti Rai (with Allison & Sampat) – "[P]atenting and exclusive licensing of software [by universities] may yield a higher proportion of situations where the exclusive licensee uses a patent to hold up an entity that has successfully commercialized without the need for an exclusive license." Also, with Benjamin: "[T]he patent system has embraced software patents of broad and often unclear scope without considering the patent thickets that such allowance would create for the highly cumulative process of software development."
  • Michael Risch – "[T]here are a lot of bad software patents out there, and we should get rid of those. However, I don’t think that the solution is to get rid of all software patents. I think that such patents can be inventive and productive like any other, and I also think that defining when a patent becomes software (as opposed to hardware) is too difficult an inquiry." 
  • Julie Samuels – Software patents are breaking the system (but I didn't watch the 48-min video so I don't know why).
  • Pamela Samuelson – Software patents are "difficult to enforce" which has "helped to allay worries . . . that patents for program innovations would have harmful effects on competition and ongoing innovation in the software industry."
  • Wendy Seltzer – "Patents do not provide a useful incentive to innovation in the software industry, I contend, because the patent promise ill-suits the engineering and development practices and business strategies of software production."
  • Christal Sheppard – Congress should clarify whether software is patentable.
  • Ted Sichelman (with Graham, Samuelson & Merges) – Berkeley Patent Survey shows patents are less useful for software.
  • Richard Stallman – Allowing software patents at all was a mistake.
  • Jennifer Urban – Until Congress fixes things, private solutions like the Innovator's Patent Agreement and Defensive Patent License can help.
  • Kent Walker – Google thinks "we should stop bad software patents from issuing," "we should weed out the bad software patents that have already issued," and "we should keep an eye on the growing anti-competitive abuse of dubious patents."
I'm not including people for whom I couldn't quickly find anything, and many of the people I did list may have written other more recent pieces, so feel free to suggest updates in the comments!