The patent system can work as a mechanism for promoting innovation in IT.  Unfortunately, many improvements still need to be made in the administration of the system, both as applied by the Patent Office and as the law is interpreted by the courts.  Although it can be tempting to impose a ban or moratorium on IT patents, this would cause as many, if not more, problems as the current system.  For example, many individuals and small companies use patents to protect themselves against larger competitors.  I see this every day in my practice as a patent attorney.  Eliminating IT patents would strip such individuals and small companies of one of their primary defenses against those who would seek to free ride on their innovative efforts.

Although many improvements should be made, even a few basic improvements could go a long way towards improving the quality of IT patents that are granted.  One is to ensure that the Patent Office keeps all of the revenue it generates so that it can hire, train, and retain competent examiners.  Another is to provide patent examiners with sufficient education and training in performing prior art searches in the IT field.

At the risk of engaging in shameless self-promotion, in my recent book The Genie in the Machine (Stanford 2009) I devote several chapters to describing how patent law has failed to grapple with computer-related inventions, and make concrete recommendations for ways in which patent law could be revised to reflect how innovation in software occurs today, with the goal of increasing the quality of granted patents.  I am encouraged to see that there is growing recognition of these problems within the legal profession, which I hope will lead to an increased determination to take the actions that are needed to set the patent system back on course.