The software patent system is broken. You know it, I know it, most software engineers know it, and even the government is vaguely aware that something is wrong. But someone will fix it, right?
Not likely. While I sincerely hope that with enough reform, the patent office can fix this mess of a system, I believe that the software patent system will always be broken. Let me explain.
Reforming the System Is Hard
Changing such a huge system to be efficient and coherent would be hard. The software patent system is at the intersection of law and software engineering, an area few people understand well. As such, it can be difficult to solve its problems or even describe what the problems are.
There's a lot of stakeholders in the current system that need to be considered. For example, can software patents be reformed while leaving hardware patents alone? How do you convince hundreds or thousands of lawyers, judges and programmers to change what they've been doing for decades? Is it possible to banish patent trolls without screwing over regular inventors, especially those that don't know how to sell their invention?
Changing the system will require a lot of precise, sweeping changes. It's possible, but incredibly difficult. So who's going to do it?
The Government Won't Fix the System
Firstly, the United States Patent and Trademark Office is unlikely to fix the software patent system. For one, they are overburdened with work already. In 2011, Chief Judge Paul R. Michel (retired) noted that, "Inventors must now wait three years, on average, and often longer. Thomas Edison had to wait less than three months. In my view, eighteen months should by the longest time anyone must wait." He blamed the problem on lack of funding, which is needed for "thousands" of more patent examiners and better IT systems.
Whatever the root cause, the USPTO has too many patents to process and too little time to process them. I suspect that this extra amount of work has lead patent examiners to approve lower-quality patents. Patents that would not have been approved in less-busy times are now being approved. A recent study also suggests that the patent office has lowered standards to cope with the huge backlog of pending patent applications. The USPTO cannot fix the problem with duplicate and obvious patents being approved because they are too busy to examine applications carefully.
Perhaps the USPTO doesn't care about reforming the software patent system. Surely, it would lessen their workload if the system was more efficient because there would be less patents to approve and less patent lawsuits to handle. However, it could make their jobs harder by requiring patent officers to go through lots of existing invalid patents in the system. But even if the USPTO doesn't look back at already approved patents, patent officers will have a harder job if patent applications require higher scrutiny instead of the rubber stamping the patent office does now. "Rubber stamp" may seem like a bit of hyperbole, but the acceptance rate of patent applications is around 90%, when you don't count refiled applications as separate applications (see graph below). If you try and try again, your application will be accepted, it seems.
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| The patent allowance rate has skyrocketed in recent years. Source: Ars Technica |
Like many inefficient government agencies, the problem may be with bureaucrats. A political reason is needed to enact any major reform. Until software patent reform becomes an election issue, we shouldn't expect much change from the USPTO.
Congress or the President could fix the system but, as I said above, patent reform is not a sexy issue and is unlikely to get the attention it deserves. Furthermore, I doubt the President or Congress understand this thoroughly complex problem. (Note that the House surprisingly passed the Innovation Act, which was a start, but the Senate shut it down earlier this year for some reason.)
The Industry Won't Fix the System
I doubt that software companies will fix the system. Large software companies already have purchased hundreds or thousands of patents and are immune to patent trolls. They can even troll smaller companies with their large portfolios of patents. Small software companies are feel the most pain from this broken system, but they don't have the lobbyists to effect change in Washington.
Patent lawyers, whether they work for the government as examiners and judges or for companies as patent attorneys, have even less incentive to change the patent system. They have become a hot commodity in recent times. The broken patent system is their livelihood, and a lucrative one at that.
The System is Intrinsically Unfixable
Another reason I believe the software patent system will always be broken is because the idea of software patents is (pardon the pun) patently absurd. Software is unique and is inherently unpatentable. That's just one more reason software patents will never be "fixed."
I know this is a bold claim, but I'm serious. Let's break it down.
Firstly, software is a fast-paced industry. The next big thing is often deprecated in a short amount of time. Let's look at smartphones for an example. Although 3G wasn't new, 3G data was a huge selling point for the iPhone 3G in July 2008. Two years later, HTC released the EVO 4G, the first 4G smartphone in the US. However, that phone used WiMAX networking for its 4G capability, and WiMAX was declared dead as of 2013 or 2014. All major US networks now use LTE for 4G data. In less than 6 years, the way smartphones sent data over mobile networks changed multiple times. Yet software patents last 20 years.
Think about how long 20 years is in terms of software. It's 2014 (as of press time here at Omari's Tech Blog). In 1994, Windows 3.1 was the most popular desktop operating system. Nobody you knew had a cell phone, though I knew a few lucky families with a car phone. You got on the Internet by dialing into one of AOL's servers. My, how things have changed.
Twenty years is several lifetimes in software years. This means that software companies must license any important patented technology if they are to survive, and that license may not priced reasonably or even available to license at all. Twenty years is just way too long to give exclusive rights to a software invention when you consider how fast the industry moves.
A second issue is that patents aren't as necessary for software as they are for hardware. I understand the need for protecting hardware. Inventing new mouse traps or lawnmowers or killer robots requires not just time, but materials. That first mouse trap may not work correctly, so you need to create lots of physical prototypes until you get it right. That requires real materials, like wood and metal. And probably more than a few mice.
"Inventing" software requires none of that. All you need is one basic computer to program on and you can create endless prototypes without worrying about materials or trial runs in harsh conditions, unless you're trying to program for some specific device. Even then, there are emulators that allow you to program apps for smartphones and vending machines, etc. without actually purchasing the device the software will end up on. Technically, you don't even need the computer.
Lastly, the complexity of software causes difficulty in deciding their patent eligibility. In Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk by Bessen and Meurer, they describe how software's complexity hinders its patentability: "It is possible, however, that features of software technology make it particularly susceptible to the patenting of obvious ideas, especially given the legal doctrines of non-obviousness developed by the Federal Circuit." Because software patents are quite susceptible to obvious patents, patent officers and patent judges have a much harder job.
Software is different. Software is special. Software might even be unpatentable. But even if it isn't, the software patent system will always be broken because no one can fix it.
That's why we must abolish software patents.
Continued in We Must Abolish (or Reform) the Software Patent System.
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