Patent Progress

Patents are out of bounds when it comes to standard protocols.

Theres a reason for the U.S. Patent and Trademark Office. It was created to foster invention by rewarding inventors for their time and trouble by granting temporary monopoly protection for the fruits of their labor. The net result is a benefit to society: Rewarding inventors tends to bring about more invention and economic productivity.

Because patent applications mandate disclosure, the patent process has social advantages over trade-secret alternatives. However, if a given law or enforcement pattern of a law—including patent law—results in harm to society, then its time to change the laws. Patents on software carry the potential of harm to the software industry and thereby to the economy. Equally problematic are the so-called method patents, or patents on application behavior, such as Amazons famous—or infamous—one-click patent.

How dangerous are software patents? Information Builders President and CEO Gerald Cohen warned eWEEK editors that the presence of patents is a scourge to the industry. Cohen has seen much innovation in a patent-free climate. Now he and other software leaders are being threatened with lawsuits. Software companies need to create software, which, after all, often has a short shelf life. They do not need to spend precious resources hiring expensive attorneys. Copyright protection should be enough. A copyright protects original expression; its existence encourages software developers to seek new ways of presenting function to users and of streamlining integration behind the scenes.

If patents for software are generally not a good idea, patents are out of bounds when it comes to standard protocols, such as those that underpin the World Wide Web. Keeping the Web patent-free prevents it from becoming a hunting ground for those seeking royalties on some of the most widely used software.

There are encouraging developments, however. The World Wide Web Consortiums forthright stand on the issue sets an excellent example. The W3Cs intent has been known for a while, but only last month did the organization issue a formal policy statement banning patented technologies from its standards.

In addition, some unjustified patents have been thrown out. For example, British Telecom claimed every organization using Web hyperlinks would need to license a patent the U.S. PTO issued it in 1989. Last year, it lost its test lawsuit against Prodigy Communications when U.S. District Judge Colleen McMahon ruled that the patent didnt apply to hyperlinks. In addition, three patents covering client/server computing as a whole were ruled invalid by the courts in mid-2002 because the technology described was in public use before the patent application was filed.

Thus, there are signs that a rational approach to software patents is gaining momentum. Still, the PTO needs to do more to raise the bar for software patents. If they are to be granted , software patents ought to be extremely rare indeed.