Seven Patent Reforms While We Wait For Nirvana

Snow Plant in Yosemite

eWeek has published a Q & A with me today around patents, and I'd like to clarify my stance on the subject. The subject of software patents is a clear one to me. Personally I'd go further than Greg and say that I oppose software patents. They represent a profound imbalance in the social contract that justifies the granting of temporary monopolies, because they convey almost no know-how to programmers. It's unfortunate that case-law in the US allowed this to happen; it is a disaster that trade missions have then forced other countries around the world (such as Australia) to enshrine them in law.

I spent a considerable amount of time (along with Mark Webbink of Red Hat) effectively lobbying against the "CII Directive" in Europe, and I regard the absence of software patents in most of Europe as a key factor in the growth of innovation through open source over here. The software industry flourished for years without them, and they promote greedy behaviour that chills innovation and retards the evolution of the 21st century's participative software industry.

Having said that, I am also a realist. All the time software patents are allowed to exist, companies risk shareholder actions if they don't pursue them. Consequently, most companies of any size are accumulating patent portfolios that probably include software patents. As I wrote on Monday, what matters is what you do with them, and a great first step to controlling the risk they introduce is patent non-assert covenants.

While the sort of idealism that Mark exhibits is laudable, the truth is that we are far more likely to see modest reform of the patent system than a radical revision, and the elimination of software patents seems very unlikely. So what ought to happen? What regrettable-but-pragmatic reforms are needed while we wait for the root-and-branch revision that sweeps away software patents for good?

Sun is supportive of the Patent Reform Act of 2007, which Mike discusses in some detail in his blog. In particular he summarises its scope as:

Included in this proposed legislation is:
  • A limitation on patent venue (commonly referred to as “forum shopping”).
  • The creation of a post-grant proceeding to cancel a patent after issuance. This is in recognition that the current methods for challenge - PTO reexamination or litigation - are not effective nor efficient.
  • Changes that will make it more difficult to demonstrate willful infringement, a finding of which is subject to treble damages. It also limits damages to a reasonable royalty for the invention itself instead of the value of the product into which an invention may be incorporated. (This one would go a long way toward making these litigations less attractive.)
  • Creation of a first to file system. Interestingly, the U.S. is currently one of the only countries that grants patents to the first to invent instead of the first to invent and file.

But I personally also believe we need to address some other issues too. If I were king (or at least an autocratic president), I'd do some or all of these:

  1. Since most use of patents is to force licensing in an out of court settlement to avoid injunctive relief:
    • Limit the availability of injunctive relief to cases of prima facie willful infringement.
      It's way too easy to get an injunction that forces your victim to stop shipping their product. Many royalty agreements come about as people settle to avoid the inevitable injunction that appears in infringement suits; it's rare for a case to go all the way to appeals or patent invalidation. Andy has more on this. I'd also prohibit injunctive relief if patent licensing is unreasonably withheld.
    • Make it easy for patent licensees to recover their license fees if a patent is invalidated.
      The settlements people make in such cases aren't usually affected by the invalidation of a patent later. If licensing fees had to be refunded when patents were invalidated, I believe we'd see trolls wither and die since even if their "blackmail" worked, they'd have to pay the loot back later.
  2. If we have to have software patents, their term and applicability needs control:
    • Make them last no more than five years, renewable once (maybe, and only if used in products).
      Timescales in the software industry are so short that anything more is effectively a lifetime patent.
    • Make them unenforceable against ISO standards (and possibly other bodies).
      There could be an exception that allows enforcement of patents declared to the standards committee during the standardisation process. That way, the mobile phone industry (which depends on such things) would be protected, standards participation would be encouraged and we would all know which "standards" to avoid.
    • Give immunity to implementations created in clean-room conditions for interoperability.
      European copyright law allows reverse engineering for purposes of interoperability. Patent law ought to allow the same sort of freedom. It makes no sense to encourage a free technology market with copyright law and allow its monopolistic taxation with patent law.
  3. Since software patents require far less investment than other kinds, they should have a higher standard:
    • Consider treating a failure to identify prior art as perjury.
      I got slapped about last time I suggested this, so it would need some strong safeguards, but it seems to me that since the main use of patents is to extract royalties without legal review on the basis of their existence, creating a patent which is subsequently invalidated by prior art ought to be penalised.
    • Require sample code to be filed with the patent.
      Software patents currently provide nothing that a programmer finds useful. They are effectively a description of how to prove that a program is infringing, not a description of the know-how so that the knowledge of society is enhanced. Since that is actually the foundation of the social contract that justifies patents, it seems obvious to me that software patents should include a viable implementation with a free copyright license (BSD perhaps) so that after the expiration of the patent the know-how is readily available.

I'm not a lawyer so I don't know how workable all these are, but it's clear Something Must Be Done. So, what would you do?

Comments:

Many countries require the payment of annual fees ("annuities") to keep a patent in force. Implementing this in the US would help move inactive patents into the public domain, which would prevent patent trolls from buying them up cheaply from estates, bankrupt companies and so forth.

Posted by davidleetodd on May 23, 2007 at 12:13 PM PDT #

Well, there might be another solution for patent reform in the US, since most of the Congressmen are captured by lobbyists from the BSA and others. Getting a case on software as subject matter exclusion going to the Supreme Court would be very interesting, not only in the light of the comments made by several judges on the Microsoft Vs ATT case, but also to correct the CAFC and USPTO practice. FFII needs a US branch.

Posted by zoobab on May 23, 2007 at 05:37 PM PDT #

If you penalize people that file patents where there is prior art, it means only large companies that can afford to check for priori art will be able to fill patents safely and it will be too risky for individuals.

Posted by Marc on May 23, 2007 at 07:47 PM PDT #

Looking for prior art in software is admitting that software is a patentable object. Software is not patentable, that's so simple. Why spending time fighting a system where you play the game of the patent industry?

Posted by zoobab on May 23, 2007 at 10:21 PM PDT #

My personal patent wishlist: - Strengthen the prior art definition and tie it to the scope of the patent so proving that something that existed or was described before the patent issued could be interpreted to be infringing on the patent would make it invalid. - Tie the description of someone competent in the field in the obviousness test with the required level of detail of the patent, so that the patent could only be granted if it would not be obvious to someone skilled but it could be used by such a person to reconstruct the invention without any significant design decision (i.e., anything that could significantly alter the performance of the invention).

Posted by Fabio Capela on May 25, 2007 at 08:11 AM PDT #

Require sample code to be filed with the patent. Yes! End the nightmare of having an vacuous specification filed as a "patent". I wholeheartedly agree.

Posted by Wesley Parish on May 25, 2007 at 09:43 PM PDT #

I've looked at hundreds of software patents - the vast majority of which have since been invalidated, as I've only looked at software patents that were currently in litigation or patent office review - and I've never seen anything that would help me as a programmer in the slightest fashion.

I personally think that the sample code would need to be either public domain, or some form of public license, which grants a minimum of free to copy from the patent document, modify, and redistribute resulting binaries. Conditional grants could be allowed, so long as they were not onerous.

As an example of a non-onerous grant: the BSD license allows copying only if you include in the copy the license and copyright notice, and you include them in a manner the end-user can find them. (That is, if you distribute binary, you can't bury the BSD license and copyright information inside the binary; it must be in the product docs.)

Also, the LGPL would work as non-onerous: you have to distribute the modified source code if you distribute the binary, but you don't have to distribute everything which links to the code.

While I'm a fan of the GPL, I can see a great many companies claiming that its requirements would be onerous. I personally believe that most of them would actually benefit more from complying with the GPL - but that doesn't mean that they wouldn't win in court, and I'd rather have this reform survive in court than have GPLed software patent example code.

Posted by Ed on May 31, 2007 at 03:29 AM PDT #

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