You will read and hear a lot regarding software patents in the aftermath of the lawsuit filed by Yahoo vs Facebook over ten of its patents.   For example, Mark Cuban hopes this lawsuit leads to a 50 billion dollar judgment for Yahoo in order to bankrupt Facebook and incite change in the patent system through consumer backlash.  Andy Baio, an inventor on some of the asserted patents, feels betrayed by Yahoo and wishes for software patents to be abolished.

Baio argues that software is already protected by the Copyright laws, making patent protection for software unnecessary.  While Baio is correct that software code is afforded copyright protection, such protection is generally insufficient.  Copyright is a rigid law that protects only actual expression.  In the case of software, only the underlying computer code, as it was written by the programmer/developer and derivations thereof is protected.  Thus, this protection only extends to the written computer code and only protects nearly exact copying of the code.

The argument against software patents has always been that if you give a developer an idea, he/she will find a way to program it.  No two developers will write the exact same code to implement the same idea.  Thus, each of these developers will be able to receive a copyright for their implementation of the code.  Now, lets assume the first developer had a unique idea and wrote the program to implement this idea in 2007 and the second developer viewed the first developer’s program and implemented it himself in 2009, without copying the first developer’s code.  In this case, it is possible that the first developer could not assert any claim of copyright infringement against the second developer if the expression of the idea by each developer was unique.

In contrast to copyrights, patents are granted to ideas.  Patent law requires that these ideas must be novel and non-obvious.  In the above example, had the first developer filed for and received a patent for his software-based invention, he would have a claim of patent infringement against the second developer, no matter whether the second developer copied the first developer’s computer code or not.

In my opinion, most arguments against software patents boil down to concerns about prior art.  In a perfect patent system, patents on known or obvious ideas would not be granted, but we live in a world where the USPTO has a finite amount of resources and the Internet affords an almost infinite amount of prior art.  Patent examiners simply do not have the time or the training to be able to review all available prior art, but do the best they can in the time allotted.  In addition, high examiner turnover rate leads to newly trained examiners that do not have a strong understanding of the prior art reviewing these applications.  Attacking the patent system distracts from this problem.  We should seek to better educate patent examiners and give them better tools to review software-based patent applications and to identify applicable prior art.  If patent examiners are given the tools they need, the quality of issued patents will improve.

What about the patents that have already been issued, then?  Well, the USPTO already has a re-examination system that allows for issued patents to be reviewed by the USPTO for new questions of patentability.  This re-exam system will be revised under the America Invents Act and a new post-grant review system will be implemented.  It is likely that many, if not all, of the patents asserted by Yahoo vs Facebook will end up being reexamined.  Facebook will have some of the best patent practitioners and prior art searchers at its disposal to identify prior art references that may have been missed by the USPTO the first time around.  Thus, the truth is that while Cuban may wish for a 50 billion dollar settlement to blow up the patent system, if the recent history of patent litigation is any indicator, the most likely outcome will be a settlement after a few years of back and forth between the companies.

It seems short-sighted to me that as the U.S. economy continues its transition to being an information economy, many seek to erode the protections afforded to intellectual property.  Whether we like it or not, some of the most important inventions are software.  For example, a search of the USPTO database reveals thousands of patents and applications directed to vehicle brake control systems.  Should software used to improve vehicle braking ability not be patentable, or will we draw a distinction between software on the Internet and software used in  ”real products“?

I suspect that this debate will continue and would love to hear other’s opinions on these issues.