The "patent progress" editorial in the June 9 issue of eWeek made the case for better-quality software patents, but it certainly did not make a case for eliminating them. If a small company were to create an innovative software program and if copyright law were the only available protection, a large competitor could freely copy every bit of the functionality of the program, as long as it wrote its own code and did not copy the look and feel of the program. The larger company could then use its superior marketing resources to put the creative, smaller company out of business, perhaps even giving the program away by methods such as bundling it with other software. Where is the reward for the smaller companys innovation, hard work, and research and development? From where will future innovations come?
Software is no different from any other area of technology new to the U.S. Patent and Trademark Office, such as business methods. When applications for a new technology are first filed, they are typically rejected on the basis that the subject matter is not patentable. Once the courts determine a subject matter is patentable, the PTO finds itself ill- prepared for the flood of applications that follows. There is a shortage of qualified examiners in the field, a scarcity of good prior art resources upon which to examine applications and pressure to dispose of a huge backlog of cases. The result is poor-quality patents. The lawsuits mentioned in the editorial are one way of weeding out poor-quality patents. But, over time, more patent examiners will be hired, the library of prior art will increase and the quality of patents issued will improve.
The PTO has implemented procedures to improve the quality of business-method patents. For example, in any case in which the first patent examiner has preliminarily allowed a business-method application, a senior patent examiner reviews it. With this second set of eyes, the allowance rate for business-method patents has fallen to 17 percent, as compared with 67 percent elsewhere in the PTO.
Many suggestions have been made for improving the quality of patents issued by the PTO, including providing for an opposition period before the issue of a patent, during which the public could submit relevant prior art that a patent examiner might have overlooked. Even if the tab for implementing these suggestions amounts to several million dollars, that price is in line with what it now costs two parties to litigate a single, poor-quality patent to invalidate what never should have been issued in the first place.
Software patents are not the enemy, but poor-quality patents are. Copyright protection is not sufficient protection for software innovation.
Larry Roberts is a partner in the Intellectual Property-Patents Group of the Atlanta office of Kilpatrick Stockton LLP. He can be reached at firstname.lastname@example.org. Send your comments to email@example.com.