Patent Troll Reform

104px-Troll_becoming_a_mountain_ill_jnlAs someone who wrote about the problems posed by patent trolls (or opportunistic licensing) years ago, I was heartened by the Obama Administration’s recent set of proposals on that issue.  I’m not sure when we decided to start calling patent trolls “patent asserting entities” (Were cave trolls offended?), as any firm that brings an infringement action could be so classified.  Nevertheless, administrative remedies and the possibility of further legislation are welcome.

To a large extent, the Administration and Congress are dancing around the real problem–software patents.  In my 2007 article, I said that the abolition of software patents would be the best way to deal with trolls.  At the time, I thought that was a pipe dream.  Maybe it still is, but my sense is that people are more leery of software patents now and are more open to considering a reform in that area.  It’s worth waiting and seeing if the new proposals work, but I’m skeptical that they will succeed  any more than the America Invents Act of 2011 did.

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1 Response

  1. There’s more precedent for software patents than we had believed. By chance, I stumbled on a couple of 1920 patents that are written like software patent. I describe one of them here. I obtained the file history from the National Archives; the examiner didn’t demur at all.

    I’m not convinced that all software patents should be banned. (Disclaimer: I have about 20 of them.) However, there are far too many that are bad patents, ones that do not demonstrate any novelty that is non-obvious to one of “ordinary skill in the art”. All programming is creative, just as all writing is, but writing is protected by copyright rather than patent; this of course means that the concept isn’t protected, as opposed to the expression of the ideas. That said, there are some genuinely innovative software patents, ones where the concept is at least as creative as some mechanical gadgets. The best example I can give is the RSA patent on a particular form of public key cryptography (4,405,829). That patent seriously stood in the way of several Internet security developments, but it’s hard to argue that the underlying idea was obvious or non-novel.

    The problem, of course, is how to define the criteria in a legally acceptable way without falling into Potter Stewart territory.