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The Agenda

NRO’s domestic-policy blog, by Reihan Salam.

Defensive Patents



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Last week, I had the pleasure of watching a discussion of software patents sponsored by America’s Future Foundation. The panelist I found most convincing was Christina Mulligan, a fellow at the Information Society Project at Yale Law School. Back in April, she wrote a short piece calling for the abolition of software patents:

About 40,000 new software patents are issued in a typical year. They regularly cover trivial or commonplace activities, such as paying for something online with a credit card. The patent on raising a pop-up window when you try to leave a Web page can be infringed in as little as three lines of computer code, while computer programs often exceed millions of lines. Any program has the potential to infringe hundreds, if not thousands, of patents.

It doesn’t have to be this way. Eliminating software patents would still leave code protected by copyright, which can be infringed only by actual copying, not by accidentally writing something similar to an existing piece of code.

While small software developers live in fear of lawsuits, large companies have started to weaponize their patent portfolios so they can meet every suit with a countersuit.Google acquired Motorola Mobility for $12.5 billion after Microsoft and Apple, with a few other firms, spent $4.5 billion to purchase 6,000 patents from Nortel Networks. These billions could have been used to develop new products and inventions.

Recognizing the pernicious nature of software patents, Twitter is committing in its new Innovator’s Patent Agreement to primarily use patents it acquires from employees defensively — not to sue, only to countersue. More companies should follow Twitter’s lead. But it would be even better if they didn’t need to waste money acquiring patents defensively at all. Then those billions of dollars could go toward what people are really interested in — new and better software.

Suffice it to say, the patent attorneys disagreed with Mulligan, though they did so earnestly, out of a genuine belief that one can separate out patents covering trivial or commonplace activities from other software patents in a coherent, justiciable way. What I found most striking is that none of the patent attorneys present defended the status quo. Rather, they agreed that the scope of software patents should be radically narrowed. That seems like a good baseline for discussion. 



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