Software Patent Reform

What forces make software patents a problem? The Electronic Frontier Foundation, linked above, is a good example. There are some very key considerations when looking at how patents should work:

1. Many people come up with an obvious idea simultaneously. Only one can have a patent.
2. The patent office churns through patents, and many of them are obvious.
3. Many patents, particularly those falling into the first two categories, are relied upon until such time as it is a de facto standard. For example, the GIF and MP3 patents.
   

In an ideal world, where patent reform is a political option, a number of suggestions have been made. First: shortening the term of the patents, as software changes so rapidly. I will consider this at a later date.

Another possibility, I would suggest, is providing a right to estop software patent infringment claims. The law should presume that patents are enforceable, but I think it should be rebuttable on grounds that:

• it can be shown on a balance of probabilities that the infringment was developed in isolation of knowledge of the patent, or
• the patent holder waited until it was a de facto standard before claiming infringement, and the results of the patent are so fundamental to society that reliance upon it is inherent in future technology.
  

Much the same way that trademarks must be enforced, I believe software patents could be more eloquent if their enforcement were poised in such a way as to protect non-patent holders who innovate in isolation, and society is not detrimentally harmed by the enforcement of the patent. This would provide protection against the plethora of useless and overly broad innovation-harming patents, such as those listed on the EFF web page.

However, to be clear, we do not live in an ideal world and this suggestion for reform is merely academic. I will soon discuss more reasonable and likely forms of addressing the patent issue.