Assault on Patents For Software Is Assault on All Patents


Joseph Schuman
October 19, 2015

First they came for the software patents, and I did not speak out — because I was not a software engineer.

Then they came for the university patents, and I did not speak out — because I was not a university and couldn’t be bothered to remember the innumerable medical cures and technological wonders created and brought to market thanks to licensing-funded university research.

Then they came for the biotechnology patents, and I did not speak out — because, honestly, I was a liberal arts major and really don’t understand that stuff.

Then they came for standard-essential patents, and I did not speak out – because I take for granted interoperability and the comfort of knowing all my devices will always work with ever-improving Wi-Fi or cellular connections or the next transformative technology that comes along. I mean, why wouldn’t it?

And then they came for me and my daily lifestyle defined by patent-enabled inventions like smartphones, electric lighting, the arthroscopic surgical instruments that saved my shoulder and, well, you get the idea — and there was no one left to speak for me or the patent protections that would enable the next generations of technology.

It is hard to escape the impression that anti-patent advocates are narrowly targeting particular types of patents or patent-oriented business models as a means of eventually weakening all patent protection.

Take universities, which frustratingly find themselves labeled as “patent trolls” by every study that purportedly aims to quantify the “troll” problem. Why? Because universities fund a tremendous amount of R&D that leads to patents but then sell or license their new technologies rather than manufacture and market the resulting products.

Universities are, in fact, a perfect example for how such non-practicing entities – owning IP but not selling a product – play a healthy economic role.

The latest survey by the Association of University Technology Managers found U.S. and Canadian university patents last year led to the formation of 914 start-up companies and the commercialization of 965 new products. Bayh-Dole, the 1980 legislation that significantly eased the mutually beneficial transfer of university-produced technology to the private sector, is now globally viewed as a significant pillar of the U.S. innovation economy.

University patents “move into the entrepreneurial domain through startups and small companies,” Brown University President Bob Brown recently told Commonwealth Magazine, in explaining why he worries Congressional patent bills that weaken patent protection would put the Massachusetts economy at risk. “Unless there is a firm base [of legal protection] for that patent, you are going to really shut down the system of innovation.”

Yet since last year, when universities saw the dangers posed by provisions in the House’s Innovation Act – a bill reintroduced in the current Congress – and started pushing for more balanced legislation, supporters of the legislation have slammed educational institutions for being, as one put it, “in cahoots” with “trolls.”

The biotechnology industry has been similarly criticized by backers of the bill for not supporting patent legislation without fixes to the Patent Trial and Appeal Board process at the U.S. Patent & Trademark Office – despite the widely reported use of the PTAB by hedge funds that short a biotech firm’s stock and then challenge its patents.

And standard-essential patents are the perpetual red-headed stepchild of the intellectual property world – attacked across a broad spectrum of regulatory and legislative arenas by large companies that view royalties for SEPs not as part of the business of selling products made valuable by standardized technology but as unjust input costs. (Please see this post for an expanded description of this phenomenon.)

But no category of patented inventions gets pilloried as much or as often as software patents, especially in the wake of the Supreme Court’s 2014 decision Alice Corp. v. CLS Int’l Bank. With the Alice decision, the justices ruled the software patent claims in question were invalid because they covered an abstract idea, which is not eligible for patent protection. Yet the high court pointedly said nothing against the eligibility of software patents in general.

Critics of software patents – almost invariably purveyors of software-related products – point to the ephemeral nature of the apps economy and say patents act as an impediment: New products come and go so rapidly, they say, that to force small coders with great ideas to make sure they’re not infringing another person’s patent would stifle innovation and kill start-ups before they get to market. Moreover, they argue, since software at its heart is usually a combination of mathematical algorithms, it shouldn’t be patentable since, as the USPTO explains here, “the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.”

In response to these critics, former USPTO Director David Kappos and Aaron Cooper, who recently stepped down as chief Democratic counsel for Intellectual Property at the Senate Judiciary Committee and helped lead work on the 2011 American Invents Act, have written a new white paper on the eligibility and economic role of software patents.

“Too often, as an industry sector booms thanks to the investment companies and individuals make in research and development, some will criticize the intellectual property protection for that sector’s technology,” Kappos and Cooper write. “The critics conveniently forget what incentivized the research and development in the first place. Today critics are targeting the success of software innovation; tomorrow it will be the next sector that is driving the U.S. economy.”

Even the term “software patents,” they note, is misleading, because it’s not the software code that’s patented by rather the invention implemented by the software.

“Patents are not issued for lines of code, computer programs, or apps,” they say. “Patents are issued for new and inventive processes expressed as algorithms implemented on hardware, such as a computer, that performs a function. They are not issued for abstract ideas. Even before computers and software existed, such processes were patentable — patents were issued for algorithms to control the operation of devices such as programmable looms and engines.”

These patents cover a broad spectrum of inventions that enhance daily life – think of GPS navigation or video compression for streaming movies -- and result from years of R&D and significant investment. “Breathtaking solutions that enable blind people to see, automobiles to detect and avoid oncoming danger, doctors to perform major surgical procedures on an out-patient basis, tests that detect likely cancer conditions in advance of any symptoms, prediction of weather events to save lives are all based on significant innovations implemented in software,” Kappos and Cooper write.

And they warn that all such breakthroughs in the future would be jeopardized if software patents are weakened, if patent protection no longer encourages investment and collaboration for software and the many technical areas that depend on software, which, as they point out, is every technical area.