Clearly, the laws need revision. Feld says that software patents should be completely abolished—that in the modern era of computing, the best defense is speed to market, execution, and continuous innovation.
But Lemley says that things aren’t so clear cut. It’s true that most of the problems in the patent system can be traced to software patents, he says. But, in a world where electronics are integrated into most everything, it’s not clear we can simply eliminate them, in part because it’s hard to know what a “software patent” actually is. A better approach is to stop patentees from broadly claiming to own any program that performs a particular task, rather than patenting the actual program they developed.
Lemley explains that patent law was meant to promote innovation by giving inventors the exclusive right to their inventions. But lawyers, he says, have been broadening the claims inherent in the patent filings beyond what the law intended. But, according to Lemley, patent law has faced this problem before. Seventy-five years ago, in the wake of the law’s move away from a focus on what the patentee actually built towards what the lawyers defined as the boundaries of the invention, patent lawyers were increasingly writing patent claims in broad functional terms—they were claiming to own rights not to a particular machine, or even to a particular series of steps for achieving a goal, but to the goal itself. The Supreme Court ultimately rejected such broad functional claiming in the 1940s as inconsistent with the purposes of the patent statute. Congress solved the problem by saying that a patent was limited to the particular machine you built and ones like it, not merely what it did.
Software patentees have gotten around those rules by describing their machine as merely “a computer,” however programmed. It’s time to go back to the old idea that patentees have rights over things they build, not over solving problems by any means — before the patent trolls turn Silicon Valley into a rendition of 1930s Chicago.
Disclosure: Wadhwa is a fellow at the Rock Center for Corporate Governance at Stanford University and is affiliated with several other universities. Read more about Vivek Wadhwa’s affiliations.
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