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Why software patents are not fixable

I’m not a patent lawyer. I’m not even a lawyer. I’m just a software developer, and like every software developer, I’ve probably unknowingly infringed upon hundreds of patents while routinely doing my job.

In my efforts to educate myself on the patent system, I’ve learned about the requirements for getting a patent, and what sorts of ideas are patentable. One of these requirements is novelty:

An invention is not patentable if the claimed subject matter was disclosed before the date of filing, or before the date of priority if a priority is claimed, of the patent application.

A patent must also not be obvious to a person of ordinary skill in the field that the patent pertains:

A patent may not be obtained though the invention … if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.

But as we’ve seen, time and time again, the U.S. Patent and Trademark Office enforces these (and other) rules extremely poorly, resulting in thousands of patents being issued that most people knowledgeable in their field would immediately recognize as invalid.

And that’s not new. Bogus patents have been issued for decades.

The USPTO has repeatedly shown that they cannot and will not do their job to prevent most invalid patents from being granted. In the field of software, their negligence seems especially egregious.

With the rise of patent litigation due in no small part to the “we don’t sue people” Intellectual Ventures and their shell companies (that only sue people), the number of patent applications is likely to increase dramatically over time. If the USPTO is granting bogus patents because they’re just slipping past overworked patent examiners, it’s only going to get worse.

Invalid patents aren’t just funny government slip-ups. (“Oh look, someone patented toast and linked lists! Stupid patent office!”)

Since the economics of civil lawsuits, especially patent lawsuits, prevent most cases against small defendants from ever getting near a court, the potential cost to society of issuing an invalid patent is massive.

If someone threatens your small business with a patent lawsuit, it doesn’t matter whether the patent is valid. Because for you to prove that it’s invalid would take far more time and money than you probably have. The only sensible course of action, the path taken by almost everyone threatened by patent litigation, is to settle with the patent-holder as quickly as possible for whatever amount of money they demand.

In practice, therefore, an issued patent is a valid patent as long as the patent-holder doesn’t try to sue anyone too large. (And even the largest corporations usually settle.)

That’s the problem.

The patent system is a good idea, in theory.

The patent rules are sensible and should prevent highly damaging patents from being issued, in theory.

The patent office should make every reasonable effort to ensure that they enforce the rules, in theory.

But in practice, this isn’t what happens. It’s not even close.

Good public policy isn’t based on what should be, but what is.

Patents are a good idea. The rules of the patent system were well-designed and have been refined for hundreds of years, mostly for the better. But if they’re not going to be properly enforced, it’s hard to argue that the system is anything but fundamentally broken. And if the rules can’t be properly and consistently enforced, I don’t see how it can be fixed.

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