Its clearly time for patent reform as it applied to software. In the last ten years, software engineers have apparently have been able to convince hardware-centric patent examiners that some pretty basic software concepts are "non-obvious" and patentable. Guestblogging at Overlawyered last week, I mentioned one such patent, the Amazon "1-click ordering" patent, which to me is clearly copyrightable, but not patentable.
Rob Pegoraro makes a similar point in the Washington Post, editorializing on the Blackberry suit:
No, the problem here is simpler. There are too many bogus patents getting handed out.
solution would be to make more things unpatentable. Just as you can't
-- or shouldn't -- be able to patent a mathematical equation, in this
scenario you wouldn't be able to claim ownership of things like the
general workings of software (any individual program is already
protected by copyright) or business methods. The U.S. has been a
pioneer in turning those things into new types of intellectual
property; perhaps it's time to declare this experiment a failure.
somewhat overlapping solution would make it harder to get any patent.
The patent office would apply a higher standard of "non-obviousness" --
the idea that a patent shouldn't reward "inventions" any competent
individual could have thought up. And any outside party could submit
evidence against a patent before it became final.
I am generally sympathetic to Blackberry's plight, in part because I went to school with Jim Balsillie, the CEO of RIM. One thing Pegoraro missed in his editorial: The US Patent Office has already said it made a mistake in issuing the original patent that RIM was found to be violating. The nullification of this patent is working through the system, and RIM is pleading that the injunction against them wait until this process is complete, sort of like a victim on death row begging not to be put to death because the prosecutor has admitted that based on new evidence, he shouldn't have pursued the case in the first place. RIM has offered to settle with NTP (the patent holder)if there is a give-back if the patent is invalidated in the future, but NTP has refused this. This all makes for an interesting drama, with a lot of brinksmanship.
By the way, though I am sympathetic to RIM to some extent, that sympathy is diminished by this:
In 2002, RIM sued software developer Good Technology for its wireless
mail-transfer technology and "smart phone" maker Handspring over its
miniaturized keyboard design. Both wound up forking over licensing fees.
As I wrote before, what goes around, comes around when you use the legal system and the long hand of the government to step on competitors.