This article was originally published in June 26, 1995 edition of ComputerWorld Magazine as an OpEd piece. I ended up writing and filing one of the earliest Internet Method of Doing Business Patents as a result of that exposure. Recall at the time, many were predicting the ruin of the software business if software was patentable.
WHO'S AFRAID OF SOFTWARE PATENTS?
Now that the U.S. Patent & Trademark Office has given the green light for software-related patents, some software developers have gone ballistic. In Internet postings and other forums, they argue that software patents will retard innovation, squash the small developer and generally bring an end of the American Way of Life as we know it.
Underlying this concern is that, with the apparent demise of "look and feel" copyright protection in the Lotus v. Borland case, it appears that patents may become the best way to protect software inventions.
I can understand why some software developers are upset. Copyright protection does have some certain advantages, such as being fairly inexpensive to obtain. Moreover, a case of copyright infringement, requires proof that a defendant did some copying. Insulating your software design staff from outside code sources may protect you from a copyright suit. Patents, on the other hand, require no such proof. You can be sued for patent infringement on a patent you've never seen or heard of.
But the critics underestimate the advantages of patent protection for software. Consider the following points:
Software Patents Were Issuing Anyway. At least now the PTO doesn't have to pretend that they don't. By facing this issue squarely, the Patent Office now has the opportunity to more consistently issue valid patents in software related fields. By hiring computer science majors (a break from long-standing PTO tradition) and creating a dedicated Examining group equipped with "prior art" files from the software field, the PTO has a better chance of avoiding such embarrassments as the Compton Multimedia Encyclopedia patent.
Patents are Easier to Adjudicate. The Patent field has over 200 years of Law and Rule making and court decisions behind it to aid in determining the scope and validity of claims. Patent claims are printed on a patent for all to see and interpret. In contrast, the "look and feel" copyright doctrine, apparently now defunct, was a new, judicially created doctrine with no precedential history. Patent claims may be distinctly designed around. "Look and feel" is more nebulous. Whose look? Whose feel? Patent claim interpretation is much less dependent on which judge you get.
Other Fields Have Survived and Thrived. Despite reports to the contrary, most technologies, including the computer arts, have survived and even thrived under our patent system. In the technology business, it is taken for granted that any new product carries a risk of infringement of a patent or patents. This risk can be minimized by performing a simple prior art search which may cost only a few hundred dollars.
Monopolizing the Software Field with Patents Won't Work. Proprietary formats and technologies are vigorously fought in the marketplace. In most cases, less sophisticated competing technologies will prevail. Consider BETA vrs. VHS, MacIntosh vrs. the IBM-PC, or Polaroid vrs. 35 mm. In all three cases, less sophisticated non-proprietary technology has prevailed. Any software developer who attempts to "force" the marketplace to buy his products through patent monopolies will eventually be history. (Bill Gates are you listening?)
Patents Don't Always Favor the "Big Guy". Consider Microsoft and Stakker. The patent system may actually favor the small inventor. Large Corporations may spend hundreds of thousands, if not millions litigating a patent suit. A small company, if they can find the right attorney, may litigate such a suit on contingency for a fraction of that amount. Moreover, a sole inventor has a much greater chance of eliciting jury sympathy when going up against the "big" corporation. Consider Mr. Kerns and his intermittent windshield wiper patent. If anything, large companies have more to fear from sole inventors than vice versa.
Regardless of whether you favor or oppose software patents, it appears as though they are here to stay. Unfortunately, it is not possible to 'opt out' of the intellectual property system. The best strategy is to establish your own portfolio and take reasonable precautions to prevent patent infringement. If sued, your patents can be valuable weapons to force settlement of a suit. Moreover, if you are a small, start-up company, you should count on any possible buy-out suitors being keenly interested in the contents of your patent portfolio.
Robert Bell is a Patent Attorney practicing in Alexandria, Virginia.
