2012 was a year plagued with a litany of lawsuits over software development that became dubbed the “Patent Wars.” Companies like Apple, Samsung, Microsoft and Motorola were caught up arguing to see if finders were going to be keepers and if the losers would be weepers. Lines between copyrights and patents aren’t always a clear line when it comes to software. This cloudy area has created a cacophony of confusion causing companies to make a beeline for the courthouse to try to lay claim to what is theirs.
For the New Year, the U.S. Patent and Trademark Office (USPTO) has resolved to establish the process in plain-speak and is asking developers to join the debate in round table discussions scheduled for February--one in Silicon Valley and New York City. The concept of the dialogue is to inform the public and simplify the process, not to change the laws. However the USPTO expects the quality of software patents will improve as changes are implemented under the America Invents Act.
David Kappos, the Director of the USPTO who recently announced his intention to step down, stated, “Because many breathtaking software-implemented innovations power our modern world, at levels of efficiency and performance unthinkable even just a few years ago, patent protection is every bit as well-deserved for software-implemented innovation as for the innovations that enabled man to fly, and before that for the innovations that enabled man to light the dark with electricity, and before that for the innovations that enabled the industrial revolution.”
Software patents don’t protect lines of code as many critics assume, however they are designed to ensure props are given to the inventors or innovations that have integrate both software and hardware. Despite cries from critics that the system is broken beyond repair, the vast majority of cases involving software patents have resulted in 80 percent of the issues raised being found valid.
Kappos, who supports software patents and denies the system is unfixable, explained that “[d]iscrimination against a form of innovation that is increasingly critical to technological advancement, indeed that in many areas dominates technological advancement, makes no sense.”
The problem comes when consumers can’t keep up with constantly changing technology. It is challenging for examiners making patentability determinations to keep up in regards to software-implemented patent applications especially as applications increase 5 percent annually.
Under Kappos the USPTO has reduced the backlog of unexamined patents from more than 750,000 to about 605,000, approximately 20 percent. He said, “I believe we have made great progress in reducing the patent backlog, increasing operational efficiency, and exerting leadership in IP policy domestically and internationally.”
It’s not a matter of scrapping the system and starting over, but more of a need to streamline and simplify the process in a way that the public can understand and companies can agree on. Kappos acknowledged that patent protection must be “properly tailored in scope, so that programmers can write code and engineers can design devices without fear of unfounded accusations of infringement.” Hopefully developers and USPTO team members will be able to sort it all out amicably and reduce the casualties of the patent wars in the future.
Kappos surmised, “So to the commentators declaring the system is “broken” I say: give it a rest already, and give the [America Invents Act] a chance to work. Give it a chance to even get started. But we’re not done. Not nearly.”
Image courtesy of Stuart Miles at FreeDigitalPhotos
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