While many believe the patent system has hit a historic and unprecedented low, discontent with patents, and in particular with software patents, is nothing new. In 1966, a Presidential Commission recommended prohibiting software patents because of the PTO’s inability to vet them. In 1883, the Supreme Court railed against “speculative schemers who make it their business to watch the advancing wave of improvement and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax.” In 1836, the Ruggles Report documented how lax patent standards, “encourag[ed] fraudulent speculators in patent rights, deluging the entire country with worthless monopolies, and laying the foundation for endless litigation.” In short, the problems that now confront the patent system are well-known. What is less well-known, however, is that many of the very reforms being considered - abolishing certain types of patents, fee-shifting, and an independent invention defense for example - have been called for and in many cases tried before, under similar and different conditions. In fact, agrarian design patents were “abolished,” according to a recent historical account, but by tweaking the standard for granting a design patent, rather than by outlawing patents relevant to a specific industry. Fee-shifting has been the norm in many European countries and in certain US contexts as well – and the theory and evidence indicate that it works best when low-odds cases can be identified ahead of time and the loser is not judgment proof – predicates that, given the unpredictability of patent litigation and the use of shell companies to bring litigation, cannot always be satisfied. During this historic moment, what can the past teach the present and the future about how to solve the software patent crisis? Based on my research regarding what has been tried, what has worked, and what has failed, quite a lot. History teaches away from broad based legislative reform and towards, narrowly tailored, incremental reform. For example rather than trying to enact an independent invention defense, patent reformers could try to get courts and others to be mindful of the equities in suits that are brought against innocent users of products that have little to do with the patent system except for their use of modern technology. Rather than pushing for new changes to the law, patent targets could pool information and prior art and capture economies of scale in taking advantage of the multiple ways a patent can be challenged after issuance.
Reforming Software Patents
Available at: https://digitalcommons.law.scu.edu/facpubs/473