The fate of this year's patent reform bill in the Senate is still unclear. The controversial legislation includes provisions stipulating how the courts are to determine damages, changes to the re-examination rules and provisions for post-grant review.
Assessing the interests lining up to support or oppose the legislation is much less difficult. Big tech firms generally support the bill. Generally, high-tech ventures in biotech or nanotech,manufacturers such as Corning, pharmaceutical firms, and inventors' representatives have opposed it.
Observers grant that the tech and software industries are experiencing a legitimate problem from the status quo, but that solutions proposed to mitigate software’s problems have the consequence of weakening protections crucial to biotech and pharmaceutical companies.
Thus, carving out software for special IP treatment has been discussed as a possible easy solution. But, sadly, such an approach is likely to cause more trouble in the long run.
- The scope of copyright protection for software is unclear in the wake of key decisions in the late 1980's.
- Existing "software patents" prove surprisingly difficult to identify.
- Treating software as a work of literature is not clearly the "right" answer. Yes, it is built out of language and contains "information" and has "meaning" so it arguably, like a book, is something more than ink on paper. But, unlike a book, the language features of software are there to give developers control of the innards of a machine. To the computer, software does not have meaning--it just sets up a process for switching things on or off, or otherwise configuring them. Software inhabits a world somewhere in between copyright & patents. There are no clean lines, as with the (patentable) field of bio-informatics.
- Even within the software industry, opinions about the merits of software patents vary depending on the business model used. For firms that mainly sell services and that give some software away as a "freebie," they are not necessary. But for small firms that rely on venture capital for funding they seem to be a net positive; likewise for firms that sell mainly software.
- Damage to the software industry from software patents has not been empirically proven. But the most dire predictions have failed.
Carving out software for separate treatment, then, is not an easy fix. The best approach is to hope to fix the problems of the patent system at a general level, paying attention to getting the details of institutional incentives right--and not doing more harm than good in the process. For legislators and staffers, this means getting up to speed, fast. But for the legislation itself, perhaps the best course is a slow one.