And the Software Patent Pirates will Plunder Away …

Recently on Procurement Central, Dave Stephens wrote an article about the Software Patent Pirates who plunder patents for storage in their corporate “holds” like hidden weapons. These firms troll the high seas of business in search of easy prey. But unlike real pirates, their actions are completely legal, even if they do leave a bad taste in everyone’s mouth.

And if a few senators have their way, it’s going to get a whole lot easier for the patent pirates to plunder corporate treasuries. As summarized in this CNet article, a new bill, sponsored by Orrin Hatch and Patrick Leahy, called the Patent Reform Act of 2006 has been introduced that proposes a number of changes to the way American patents are awarded and challenged.

Although it has some moderately good points, including a “post-grant opposition” system that would allow outsiders to dispute the validity of a patent before a board of administrative judges within the Patent Office, rather than in the traditional court system, potentially staving off excessive and needless time-consuming and costly litigation, it has some bad points. The worst part of the proposal is that it would shift to a “first to file” method of awarding patents. Whereas now you have to be the first to invent something to be eligible for a patent, if passed, this bill grants eligibility to anyone who is the first to file a patent. In other words, those who can afford to file quickly and often will reap the rewards while real inventors could get the shaft.

More importantly, it could allow patents even more absurd than the one referenced by the Technology Liberation Front in Yet Another Ridiculous Software Patent. For example, anyone could start submitting patent applications for minor variations on standard internet protocols that have been around for decades, and be eligible to receive the patent. If the minor variation was useful, it would then be unusable in the public domain, even if completely obvious to a high school computer science student.

As you might have guess, I am also against software patents. If you recall my post on TRIZ in the Purchasing Innovation Series over on eSourcing Forum , you’ll remember the statistics observed by the followers of Genrich Altshuller who found, like him, that only 4% of patents contained a new concept and only 1% a revolutionary discovery. Furthermore, when it comes to software, I would estimate that the situation is much, much worse. Not only have I never seen a software patent or application therefore that I believe is worth a patent, I have never heard of one either. I’m not saying that there might not be a valid software patent out there, or at least a valid basis for one, but the reality is that the basis of computing, and software, has not changed much in the last fifty years, being based on mathematical fundamentals that are abstract and unpatentable as laws-of-nature. Software patents have avoided this restriction by patenting implementations of “business processes” that are patentable, even if completely obvious.

I just wish politicians were as informed as their peers in the European Parliament in this regard who voted 648 to 14 to quash the Computer Implemented Inventions Directive when it was introduced, maintaining the status quo and preventing software from being patented in Europe.

After all, as Dave Stephens points out, software copyrights insure software isn’t copied, remain in effect for up to 90 years, and still allow you to sue for, and recover, damages in the event you are honest-to-goodness defrauded. It’s good enough for Europe and the publishing industries, why can’t it be good enough for us too?