Now that the courts have begun respecting software patents, big software companies have rushed to patent everything they have. Some argue that this stampede, rather than protecting innovation, actually harms it, reducing choice and raising costs for the CIO. They say the software industry is so complex and ubiquitous that our patent system isn’t equipped to protect software developers and CIOs. Instead, it rewards big companies that acquire broad software patents, charge competitors hefty license fees, bleed the market dry of choice and use their deep pockets to defend their vast patent portfolios in court.
Defenders of the system say that while we have indeed hit a bad patch—with too many broad patents and too much litigation—we’re simply seeing history repeat itself. There is always a period of turmoil when a “new” technology is patented, with a flurry of patents and court fights until things settle down and we see that patents do what they have always done: reward innovators for their intellectual curiosity, and protect them from copycats.
One thing is clear: The U.S. Patent and Trade Office (USPTO) is overwhelmed, both by the volume and complexity of software patent applications. We asked two experienced patent attorneys to argue the two sides of the case so that you can decide: Is the patent system breaking down, or is patience a virtue?