Experts mull changes to software patent process
April 27, 2009 —
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In response to the controversy surrounding software patents, the United States Patent and Trademark Office (USPTO) has tightened up considerably on granting them, and they are now harder to get than any other type of patent (except for business methods). That’s the view of Mark A. Lemley, a professor of law at Stanford Law School and director of Stanford's program in law, science and technology.
Lemley, who testified about patent reform and patent litigations in front of the U.S Senate in February, said that while patent reform in Congress has proven a long and difficult process, the USPTO has taken steps itself to tighten up the patent process.
Some patents issued by the USPTO over the years should not have been granted, said Lemley. Those questionable patents can negatively impact innovation, particularly when they are enforced against innovative companies, he added.
While a robust protection scheme is important to the economy, an excess reliance on patents is unnecessary and could be a drag on the economy in the future, said Richard Field, a past chair of the American Bar Association's section of science and technology law.
"There is confusion in terms of who owns what and who can do what," he explained. Claims and counterclaims have been the name of the game in the past, and companies need to have a portfolio [of patents] in place to even sit at the table with someone else, he said.
"These so-called patents grant ownership rights over ideas that have no reflection in the physical world other than 'I own the math,' " said Eben Moglen, founder of the Software Freedom Law Center and a professor of law at Columbia Law School. "If everyone goes looking for more in a game of phony real estate, hell will follow."
However, bad eggs have managed to slip past patent examiners largely due to a loophole in the patent process that says while a programming algorithm may preexist as a statement of math, part of it can be patented if it is tied to a process or machine, Field explained.