The Software Patent Fix

I recently attended a conference in Boston that was titled "Software Patents: A Time For Change?"

I found it to be an extremely informative and engaging conference, full of diverse opinions representing some of the top minds in technology, academia, patent law and business.

Somewhat interesting, though, is that the entire conference could be broken down into essentially two themes. Software patents are bad for everybody, including businesses, innovators, the open-source community, government, researchers and regular people—pretty much everybody except for patent lawyers and patent trolls. But since its too late to get rid of software patents entirely, what can we do to limit the damage they cause?

The point about the damaging effect of software patents was made pretty thoroughly by all the attendees, including some of the lawyers who were the furthest on the pro-patent side. The best pro-patent argument was made by professor John Duffy, of the George Washington University Law School, who argued that not all software patents are bad, using a pretty solid Google patent as his example.

But even Duffy acknowledged that a very large number of software patents shouldnt have been granted, that they cause more harm than good and that the U.S. patent system is in serious need of reform when it comes to software.

However, while it was very easy for the presenters to make the case for the harm that software patents cause, they had a much harder time coming up with solutions.

The last panel of the conference was a roundtable on options for reform, and, unfortunately, I didnt walk away from this session with a warm, glowing feeling that the software patent mess would soon be cleaned up and that developers would once again be free to innovate without fear.

Most of the opinions on reform centered on small-step options to make it easier to challenge bad patents before they are granted and hopes for success in the legal arena. One of the only presenters who had any kind of right-now solution was Jerry Rosenthal, CEO of the Open Invention Network, a company that purchases and acquires patents as a defensive measure for Linux and other open-source applications. However, while this is a nice defensive maneuver, it doesnt do anything to change patents as they are today.

For me, some of the most interesting comments came from Ed Black, president and CEO of the Computer & Communications Industry Association. As a group that represents and lobbies for some of the largest software companies around today, some might be surprised that the CCIA is in favor of software patent reform, but it is. The group has even published a fairly comprehensive document on patent reform.

During the roundtable panel, Black talked about the need to get everyone—technology companies, open-source developers, legal experts, academia and industry groups—to work together to get the government serious about enacting effective software patent reform. I thought this was a good point, but I also thought Black left one very important group out of the equation. In fact, this group was very rarely mentioned during the entire conference.

Whats that group, you ask? The general public. The most effective way to get software patents fixed would be to get consumers up in arms about them.

In the fight to stop software patents in Europe, there were big demonstrations held near the European Parliament and effective campaigns to let Parliament members know that large numbers of people would be unhappy if software patents became law in the European Union. This level of public engagement in the United States would be very effective in making software patent reform a reality. But who am I kidding? I dont think Ill ever see hundreds of people, never mind thousands, protesting software patents on the National Mall.

So, like the rest of the conference members, Ill pin my hopes on legal victories and small-step reforms in the government. But I can still dream that a large number of the people will decide to finally speak out against a system that benefits very few while harming the vast majority of the public.

Labs Director Jim Rapoza can be reached at jim_rapoza@ziffdavis.com.

WWWeb Resources

A time for change?

Slides and program information from "Software Patents: A Time for Change?" www.researchoninnovation.org/swconf/program.htm

Linux promotion

Home of the Open Invention Network www.openinventionnetwork.com.

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