> If software patents are done away with, I think we just throw the pendulum in the opposite direction and now everyone with money and strong development teams steamroll the competition.
Historically, the alternative to patents is trade secrets. For example, you have Coca-Cola's closely-protected formula. In the example you gave, it's just as likely that Skype would instead protect its technology as a trade secret, and reverse-engineering it would fall under current laws.
It might be possible to consider the rapid development cycle in the software industry and simply shorten the period of protection granted by a patent on software to something like 2 years, which seems long looking forward but is pretty short in retrospect. Companies like Lodsys would be forced to spend a lot more money acquiring new patents on a regular basis -- enough extra to continue their litigious cancer on the industry -- but wouldn't manage to substantially halt development or production in the software industry.
Even then, I think I'd still prefer to see patents abolished altogether for non-mechanical and non-chemical inventions.
I think the 2 year software patent might be the way to go. That's a pretty compelling argument to say that things move much faster in software so the timespans should just be shortened significantly. You might even be able to convince lawmakers with that.
Agreed -- I also think 2 years in software is would be considered sufficient time to have a technological advantage over your competition. Maybe even 3 years.
But I think it's currently 11 or something like that isn't it?
In 11 years I'll probably be half robot... that seems like a long time.
The 2-year software patent wouldn't fix other problems, such as the impossibility of determining novelty or nonobviousness in a field as varied and active as software. It's not wise to give the patent office an impossible job, when case law is largely based on presumption of validity.
It is worse than 17 years, actually. It is 17 years from date of grant, not date of filing. The USPTO takes years to review a patent, so your effective monopoly period is 17 years + USPTO review time.
In Europe and other jurisdictions the protection period is 20 years from date of filing (rather than starting at the date of grant). There's patent reform legislation currently being considered that would make this improvement to US patent law (and, yes, you understand correctly that the typical software patent review takes more than 3 years, often much longer. That makes the terrible job they do all the more inexcusable, even though companies do game the process with things like claim amendments). In any case, you're absolutely right that the 2-year software patent doesn't solve the novelty and non-obviousness issues.
I'd add that a 2-year software patent would have to be 2 years from date of filing. Anything starting at date of grant would be far too long. Unfortunately, a 2-year from filing software patent would mean that you'd need to speed up USPTO review by an order of magnitude and make it higher-quality. If anyone can come up with a way of doing that that is better than a robot just stamping "No" on every application, I'd be pretty impressed.
I've never understood why trade secrets need any special treatment as "intellectual property" in our legal system. Aren't trespassing and contract laws (non-compete, NDA, etc.) sufficient?
It comes into play when someone under an NDA violates it. It seems reasonable that a company shouldn't be able to use something that required violating an NDA to find out.
Historically, the alternative to patents is trade secrets. For example, you have Coca-Cola's closely-protected formula. In the example you gave, it's just as likely that Skype would instead protect its technology as a trade secret, and reverse-engineering it would fall under current laws.
It might be possible to consider the rapid development cycle in the software industry and simply shorten the period of protection granted by a patent on software to something like 2 years, which seems long looking forward but is pretty short in retrospect. Companies like Lodsys would be forced to spend a lot more money acquiring new patents on a regular basis -- enough extra to continue their litigious cancer on the industry -- but wouldn't manage to substantially halt development or production in the software industry.
Even then, I think I'd still prefer to see patents abolished altogether for non-mechanical and non-chemical inventions.