The Software Patent Mess
The Cutter Consortium Business Technology Council typically finds itself passionately debating today's hot technology trends. But all were in agreement on this month's Council Opinion: the way the US handles software patents will be disastrous to the industry.
Patents on software have been granted in the US since the early 1980s. Prior to that, such patents were technically possible but rare. In a recent decision, the European Union (EU) ruled that no EU patents would be granted on software. According to The Cutter Business Technology Council, "the divergence of the US and EU on this matter could have important consequences on the relative ability of the two great powers to compete."
Two recent events have made software patents suddenly relevant. First, there has been a flurry of injunctive relief requests to stop companies from making use of software to do nominally uncreative things like run their call centers. And second, Microsoft has announced its intention to file for more than 3,000 software patents this year alone, presenting the worrisome specter of one very large and combative wielder of the injunctive relief tool.
Below is a collection of quotes from the recent Cutter Consortium Business Technology Council Opinion on US software patent law. In this report, which included a spirited response by a spokesman for the Patent and Trademark Office, you'll find animated opinions on whether patents on software are more likely to foster sensible innovation or be abused, thus inhibiting innovation.
Tom DeMarco: "The US software patent scheme is badly broken. It is a manifestation of something that we've all seen before: a system that was reasonably designed but then botched in the implementation. Since any attempt to improve it is likely to be overturned by the courts..."
Lou Mazzucchelli: "The US system is moving to 'patent anything made by man under the sun.' Taken to its limit, this becomes everything made by man under the sun (subject to the 20-year patent clock -- but who is to say that the same people who have allowed effectively infinite copyright extension will not try to play the same games with patents?). If the patent system in the US does not change, future generations of innovators will be found only in large US corporations or outside the US. Is this the system we (non-lawyers) really want?"
Rob Austin: "The only real cure for this problem is to eliminate the ownership uncertainty, and in a way that balances the interests of innovators and customers. This will be hard work. Because of the level of specialized technical knowledge required to sort out the details that surround many claims on intangible assets, I'm not sure it's even possible. If it is, it will have to occur, in the US at least, in an environment where various interests are accustomed to buying political influence. Efforts to harmonize IP laws worldwide mean that if the balance turns out badly, the resulting malaise could spread across the globe. The next hundred years of business value creation lie in the balance. Let us hope that our policy makers can summon the courage to sort it out effectively."
Lynne Ellyn: "The potential havoc that will be visited on US business if this insanity is allowed to continue cannot be overestimated. The past 20 years of US prosperity has been fueled by software technology. America is losing this edge to Asia and Europe. The greedy and unscrupulous lawyers who have lobbied and applied for software and business process patents are driving up the cost of software and crippling innovation at a time when the US needs more innovation. Europe and Asia are laughing at our stupidity; they will not honor our ridiculous, pretentious, and arrogant software patents."
Ken Orr: "These are times when legal systems are greatly taxed: technological, business, and international changes are evolving at an enormous rate. Only the US, Japan, and Singapore are totally on board with the American software patent approach. Europeans have opted out based on strong opposition from countries like Poland. In the next decade, the IP regimes for the 21st century are apt to be set. We should not be bystanders to that process."
Tim Lister: "It's not a software patent mess; it is US software patent lunacy! Thankfully, it appears that the rest of the world, at least the civilized part, has decided not to play along with the US penchant for finding ways to spend valuable resources in de-motivating and costly litigation."
It is impossible to capture the entire scope of this Council Opinion in a press release. This report is replete with advice and commentary from Cutter Consortium Fellows Tom DeMarco, Lou Mazzucchelli, Rob Austin, Lynne Ellyn, Ken Orr, and Tim Lister. For a copy of the full report or to schedule an interview with any of the Council members, e-mail Ron Pulicari (+1 781 641 5114) or e-mail at press@cutter.com.
Learn more information about Cutter Business Technology Council members.