Correcting the Tech Patent Problem

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Not long ago, InformationWeek VP and editor-in-chief Rob Preston wrote a column about the brokenness of the U.S. patent system. Preston bemoaned patent trolls and noted that patent litigation often affects those far beyond the software and technology industries.


He explained:

Case in point is a suit filed last week by University of California spin-off Eolas Technologies related to its patent for technology, developed 15 years ago, that lets Web browsers "act as platforms for fully interactive embedded applications." ... As my colleague Paul McDougall reported, an Eolas victory "could give the company a claim on virtually every Web site that hosts interactive applications."

That, he said, is not what the patent system is supposed to be about. It's supposed to foster innovation and "stimulate job creation."


Preston isn't alone in his thinking, but apparently his readers were none too happy with his column because last week, he tried again. This time, he offered solutions to the patent system's problems. Many of his solutions started as suggestions from readers, and he wasn't afraid to admit it.


For example:

Adhere to copyright protection, which presents a higher bar for plaintiffs than does patent protection. To succeed with a software copyright action, a plaintiff must establish that the defendant copied the work in question... One online commenter on my column thinks this higher standard makes good sense: "I have spent a few decades in software development and always thought software patents are wrong... If the first person to write a program to update an account balance for a deposit or withdrawal had a patent on it, where would banking be today?"


When I talked to technology attorneys early this year regarding the patent system, most agreed that the system as it exists now is broken, but they all differed regarding how it should be fixed. Matthew Schantz, a partner in the Indianapolis-based law firm of Bingham McHale, told me in March that the U.S. Patent and Trademark Office is underfunded and understaffed. That's why the patent process takes so long and is often prohibitively expensive. On the other hand, Bruce Abramson sugggests neither copyright nor patent laws should apply to software, but that Congress should come up with a completely separate set of rights for intellectual property.


Preston also suggested a "middle ground". But the middle ground he has in mind addresses patent enforcement, not a completely separate set of rights. He cites Alan Heimlich, a patent attorney with Peloquin PLLC, for the proposition that patent holders should only be able to enforce patents on inventions they are actively using.


Eventually, I think we do need some kind of substantive patent reform from Congress, but in the meantime, Heimlich's suggestion seems like a good one.